| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : OTTES -v- SHEWRING & ORS [2002] WADC 166 CORAM : WISBEY DCJ HEARD : 12-14 FEBRUARY 2002 DELIVERED : 2 AUGUST 2002 FILE NO/S : CIV 739 of 2000 BETWEEN : JOHN PETRUS OTTES Plaintiff
AND
PETER SHEWRING
JOSEPH SHEWRING
BARRY DUCKETT
Defendants
Catchwords: Negligence - Duty of care - Installation of electric motor by contractor - No provision made for mechanical lifting device - Manual lift undertaken by plaintiff, fellow employees and contractor - Preliminary issue whether contractor owed plaintiff a duty of care
Legislation: Nil
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Result:
No duty of care established Representation:
Counsel:
Plaintiff : Mr J R Criddle
Defendants : Mr M D Evans
Solicitors:
Plaintiff : Bradford & Co
Defendants : Corsers
Case(s) referred to in judgment(s):
Jaensch v Coffey (1984) 155 CLR 549
Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254
Sullivan v Moody [2001] 75 ALJR 1570
Case(s) also cited:
Nil
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1 WISBEY DCJ: The plaintiff, described in the statement of claim as a butcher/small business proprietor, was at all material times the managing director of Sally Anna Pty Ltd (the company) trading as "The Dutch Butcher" from premises at 29 Adrian Street, Welshpool (the premises); and the defendants were the proprietors of Line Air Contractors involved inter alia in the business of refrigeration installation, maintenance and servicing.
2 In the statement of claim the plaintiff alleges that in 1997 the company entered into a contract with the defendants who undertook to provide, deliver, and install a freezer motor (the motor) at the company's premises. It is alleged that on 23 July 1997 Peter Shewring had the motor delivered to the premises, and required the assistance of the plaintiff and four other company employees to manually carry it to a position contiguous with the freezer room, for installation. The plaintiff claims that whilst carrying the motor through a gateway on the premises, the four employees released it, leaving the plaintiff and Peter Shewring bearing its weight, thereby causing the plaintiff to injure his back. The plaintiff alleges that the accident was due to the negligence of the defendants, in that possessing the necessary skill and expertise to install the motor they owed the plaintiff a duty of care not to expose him to foreseeable risk of injury during the installation process. It is said that in breach of duty the defendants failed to provide proper mechanical means of moving the motor on the premises; or alternatively failed to dismantle the motor to facilitate its transport. 3 The defendants deny that they contracted to supply the motor, stating that they only agreed to install it, and allege that the plaintiff purchased and arranged its delivery to the premises. They allege that Peter Shewring gratuitously agreed to assist in shifting the motor to its installation position, and that such procedure was done manually by the plaintiff, three employees of the company, and Peter Shewring. They deny that the plaintiff and Peter Shewring were at any stage obliged to take the full weight of the motor. The defendants further plead that prior to the delivery of the motor Peter Shewring recommended to the plaintiff that he hire a crane, or professional movers to shift it, but that he declined to do so. The defendants deny that they owed the plaintiff a duty of care, and alternatively plead that the plaintiff voluntarily assumed any risk of injury arising from the carrying of the motor, or was contributorily negligent in so doing. 4 The matter came before me for determination of the following preliminary issues:
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1. Did the defendants in the circumstances owe the plaintiff a duty of care as alleged and, if so, did they breach that duty? 2. Did the plaintiff voluntarily assume the risk of injury to himself by agreeing to assist in the manual transportation of the motor? 3. Alternatively was the plaintiff guilty of contributory negligence and, if so, to what extent should the defendants' liability be reduced therefor? 5 My initial impression was that the preliminary determination of those issues was unsatisfactory, and nothing occurred during the hearing to cause me to alter that view. Having expressed that disquiet, I now turn to the evidence.
Johannes Petrus Jacobus Ottes 6 The plaintiff was born on 8 February 1939 and was 58 years old at the date of the accident. He stated that he was managing director of the company which traded in quality meats and small goods from premises at 29 Adrian Street, Welshpool. A butcher by trade, he stated that he had commercial dealings with Joseph Shewring and his son Peter Shewring over many years, as they installed and serviced refrigeration equipment at his various business premises. He stated that since about the mid-1980's the defendants had been responsible for the service and maintenance of all cool room and freezer refrigeration equipment at the premises, the work basically being performed by Peter Shewring. If service difficulties were encountered he would simply telephone Peter Shewring who would call at the premises and attend to any necessary maintenance and repairs. The working arrangement was not reduced to writing. The company was essentially a "family business", and the plaintiff's sons Carl and Rian Ottes were employed as factory manager, and in small goods preparation, respectively. The company had Tecumseh refrigeration motors in use at the premises, and being sealed units they had to be replaced if faults developed. The plaintiff stated that if a motor developed a fault he would ring up Peter Shewring who would attend, and if replacement was required, would supply and install a replacement motor. A similar situation applied with the evaporative refrigeration motors. 7 The plaintiff produced a bundle of invoices passing between the defendants and the company relating to replacements and repairs covering
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the period 26 May 1996 to 5 January 2000 (Exhibit P2). He referred in particular to an invoice dated 30 July 1996 which related to the supply, delivery and installation of a Terry unit freezer motor which Peter Shewring obtained from Bakewell Pies. An invoice dated 14 April 1997 related to the supply and installation of a condenser fan motor. The plaintiff stated that in respect of any goods supplied and installed by the defendants, there was no discussion concerning price, and the defendants would simply supply and install the equipment and invoice the company. The plaintiff demonstrated that a number of the invoices relating to the Kelvinator refrigeration unit central to this case (the replaced motor) showed that it had been breaking down regularly. He stated that he had discussed the position with Peter Shewring because the cost of carrying out repairs was substantial. 8 The plaintiff's recollection was that in or about May 1997 Peter Shewring informed him that second-hand equipment was becoming available from Bakewell Foods Pty Ltd, for whom the defendants did contract work, and it was arranged that he would get a replacement motor from that company. The replaced motor which was repaired on 29 June 1997 broke down shortly thereafter, with the result that it was necessary to remove four or five pallets of product from the freezer room and put it in cold storage at Rhinland in Bayswater. The replacement motor arrived at the premises at about 11/11.30 am on 23 July 1997, shortly after the plaintiff returned from the meat markets. He stated that he became aware of the arrival of the motor when Peter Shewring came into the store and announced "we're here with the motor". The plaintiff went outside with Mr Shewring and observed a large Terry motor on a pallet underneath the carport about 3 or 4 metres from the gate. The plaintiff thought that there was a flat top truck close by, but was unable to recall whether it had any lifting equipment. He stated that it was not long before various company staff appeared to have a look at the motor. It was then that Peter Shewring suggested that he needed some hands to move the motor, at which time the plaintiff asked its weight and was told by Mr Shewring that it was a couple of 100 kilos. The plaintiff stated that the only way to move the motor was by hand, but having regard to its estimated weight that seemed a feasible task for six people. 9 When the shift began, the plaintiff was at the front, Peter Shewring was at the rear, the plaintiff's two sons were on one side, and fellow employees Parsons and Shepley, on the other. The plaintiff could not recall if anyone was directing the lift. The motor was lifted from its position on the driveway about 3 metres from the gate and carried and placed on the wall of a flower bed near the gate. The gate was 880 mm
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wide, which was less than the width of the motor, and consequently as it was carried through the gateway the side support persons had to drop away. The load then became too heavy for the plaintiff and Peter Shewring to manage, and they had to drop it. The plaintiff was unable to recall how the motor was moved through the gateway, but his recollection was that once through the gateway it was placed on some steel piping and rolled over grease traps to its final position. 10 The plaintiff stated that he did not have any discussions with Peter Shewring on 23 July 1997 prior to the arrival of the motor. Nor did he play any part in moving the replaced motor. He recalled the presence of a truck, and seemed to vaguely recall the presence of a driver, although he did not have any discussions with the driver, nor pay him, as he had not made any arrangements to collect the motor from Bakewell Foods. He denied having had any discussion with Peter Shewring concerning the use of a crane. 11 The plaintiff identified appliance service order 1153 as relating to the installation of the motor, stating that he received the invoice after installation. He stated that he would have paid the invoice in August 1997, and he referred to a practice of cash payments existing between the company and the defendants. He produced a cashbook recording cash payments to, and the value of meals and groceries purchased by Peter Shewring. The cashbook (Exhibit P6) recorded cash payments of $500 on 1 August 1997, 8 August 1997, 15 August 1997 and 22 August 1997. Thereafter there was a record of weekly payments of $250. 12 The plaintiff denied that he handed Peter Shewring $2,000 on 23 July 1997 to enable him to purchase the motor. He stated that he did not receive an invoice from Bakewell Foods for the motor, and would not have been in a position to produce $2,000 cash for payment of the motor on 23 July 1997. 13 Referring to the incident when the motor was being manoeuvred through the gateway, the plaintiff stated that when he took the extra weight he felt a stiff sensation in his back, and later that evening was having problems with his back, with stiffness and pain down the leg. When his condition did not improve he consulted his general practitioner on 28 July 1997. 14 The plaintiff was adamant that he did not have any discussions with Peter Shewring regarding the purchase of the motor, leaving its acquisition entirely at Mr Shewring's discretion.
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15 The plaintiff produced a workers' compensation occurrence report dated 4 August 1997 which related to the incident, and his alleged injuries. He denied that Peter Shewring had suggested to him that the replaced motor be dismantled, repaired and reassembled, stating that it had come to the end of its life.
16 When the motor was replaced in 2001 the company replacing it used a crane to facilitate its removal and replacement, at a cost of $195. 17 Shortly prior to the hearing the plaintiff arranged to weigh the motor, and its weight was recorded as 340 kg. 18 In cross-examination the plaintiff agreed that Peter Shewring visited the premises approximately 12 time a year, and that as at 23 July 1997 the company owed the defendants approximately $7,000 for work and labour. A company cheque for $2,440 payable to the defendants had been dishonoured on or about 23 May 1997, and it appears that another cheque for $500 payable to the defendants was dishonoured on or about 20 June 1997. 19 The plaintiff would not accept that Peter Shewring attended the premises at about 7.30 am on 23 July 1997, stating that his first attendance was after the motor had arrived. The replaced motor had been out of commission for some time, and the plaintiff stated that it was in or about May that Peter Shewring indicated that it was at the end of its useful life and had to be replaced. 20 The plaintiff denied that Peter Shewring made a telephone call to Bevan Leach of Bakewell Foods on the morning of 23 July, and further denied having had a conversation with Peter Shewring concerning the price of the motor. He denied being told by Mr Shewring that Bakewell Foods wanted payment of $2,000 either by cash or bank cheque for the motor. He denied that the company held large amounts of cash on the premises. He was emphatic that Peter Shewring did not ask him to arrange for a courier to transport the motor from Bakewell Foods to the premises. He denied that there had ever been any mention made by Mr Shewring of the desirability of obtaining a crane or other lifting device, or hiring labour, to shift the motor. 21 The plaintiff agreed that it was at his request that his sons and two other employees of the company assisted moving the motor, but stated that Peter Shewring was giving directions concerning the shift (at variance with his earlier evidence). He stated that there had been no discussion about dismantling the motor before shifting it. The plaintiff accepted that
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it would have been very difficult to use a trolley to move the motor in the laneway. He did not recall milk crates being strategically placed in the laneway to enable rests whilst moving the motor, although he stated that his involvement ceased once it was manhandled through the gateway. The plaintiff was prepared to accept that Peter Shewring may have handed him appliance service order 1153 on 24 July 1997, and agreed that he had not received an invoice from either Bakewell Foods or the defendants for the cost of the motor. 22 The plaintiff was recalled to produce recordings of the freezer room temperature in June and July 1997 which indicated that the freezer was inoperative from the beginning of July until 24 July (Exhibit P12).
Carl Johannes Ottes 23 Mr Ottes, one of the plaintiff's sons, was the company factory manager. He stated that in the event of mechanical failure in refrigeration equipment he would notify the plaintiff, and if the plaintiff was not available would call Peter Shewring who would give advice, or attend the premises and take the necessary remedial steps. 24 His recollection of the morning of 23 July 1997 was that he assisted Peter Shewring remove the replaced motor, preparatory to installing the motor. He thought that his brother Rian was present when the replaced motor was removed, and that it occurred mid-morning. Several hours later the motor arrived, and he went to the front of the factory and observed it on a pallet in front of a side gate. There was a small truck present. At that time Peter Shewring, Zane Parsons, Colin Shepley and the plaintiff were present. Mr Ottes could not recall any particular conversation, but stated that he just knew they were going to manually lift the motor. He stated that the motor was lifted by the group from the pallet and moved towards the gate, but as the aperture was quite narrow and they started to lose grip, they dropped it on to the flower bed wall. Mr Ottes was unable to remember anything specific after that, stating "I can sort of remember that we did move the motor the rest of the way on some sort of rollers but, you know, that's just – I'm not quite sure about that, and that's all I can remember of moving it". He did not recall Zane Parsons assisting, and was unable to remember where the various people were positioned for the lift. He was vague as to who removed the replaced motor, but his recollection was that it was Peter Shewring, Rian Ottes, Shepley and himself. He recalled a flat top courier truck being present at the time of arrival of the motor, but stated that it had already been unloaded when he saw it. He thought that five people assisted
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shifting the motor from the pallet and through the gateway, they being Peter Shewring, his father, his brother, another, and himself . He did not support his father's account that some of them released their grip on the motor as it was being carried through the gateway. 25 His recollection of the events surrounding the moving of the motor was extremely vague; perhaps consistent with it being an unremarkable event.
Rian James Ottes 26 Rian Ottes is also the plaintiff's son, and was working for the company in 1997. He was at the premises on 23 July 1997 and his recollection was that he first saw Peter Shewring at about 10.00 am when they shifted the motor. He agreed that he had been involved in the removal of the replaced motor, but was unable to recollect when that was done relative to the shifting of the motor. His evidence was that the plaintiff, Peter Shewring, his brother Carl, Colin Shepley, Zane Parsons and himself assisted in shifting the motor. He claimed to have asked how much the motor weighed, and Peter Shewring responded that its weight was 200 to 250 kilos. He stated that during the shift he was on one side of the motor opposite his brother who was close to the wall, his father was next to him at the rear end of the motor, and Peter Shewring was at the front of the motor, moving backwards. His recollection was that there were two people on either side. He agreed that when they were moving it, the people on the sides were not able to fit through the gateway, and the motor was dropped on top of a raised flower bed wall. His recollection was that it was then pulled through the gateway, and possibly rolled to its final position. Like his brother, he was very vague as to the circumstances surrounding the shift, and did not recall seeing the courier vehicle or driver. His recollection was that the plaintiff's assistance in the shift ceased after the motor had been manoeuvred through the gateway.
Andrew Nicholas Jenkins 27 Mr Jenkins is the financial controller of Bakewell Foods Pty Ltd. He produced invoices passing between Bakewell Foods and the defendant for the period January to September 1997 (Exhibit P9.1) and a summary of payments (Exhibit P9.2). He stated that he had been requested to and searched for documentation relating to the sale by Bakewell Foods of a Terry V4 freezer motor to Peter Shewring of Line Air Contractors on or about 23 July 1997, and was unable to find evidence of the transaction, or
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any record of the receipt of $2,000 cash on or about that day. He stated that if Bakewell Foods sold any equipment, it may or may not create an invoice, but there would certainly be a receipt recording payment. The accountant and himself were the persons having authority to negotiate the sale of Bakewell Foods' equipment. Although Mr Jenkins stated that he would have to have been contacted prior to the despatch of any plant sold by Bakewell Foods, he had no recollection of any transaction involving the Terry V4 freezer. He pointed out that the maintenance engineer, Bevan Leach, should have been involved in the sale of second-hand equipment. 28 Mr Jenkins confirmed that Bakewell Foods had changed its accountant since July 1997, and it appeared from his evidence that general administration, including disposal of assets, and regulation of ingress to and egress from Bakewell Foods' premises by people in 1997 was somewhat casual. 29 When asked in cross-examination if he was aware of any equipment being sold by Bakewell Foods through Mr Shewring, Mr Jenkins replied "I believe that at least this one piece of equipment was sold. I do remember discussions about the transaction but they're not especially clear".
Andrew Theodorus Van de Meer 30 Mr Van de Meer, an engineer, took steps at the request of the plaintiff to weigh the Terry V4 condenser and motor, which he said weighed 340 kg. He stated that it was unlikely that the unit would have been gassed at the time it was weighed.
Glen Barry Shreeve 31 Mr Shreeve operated the business Rhinland Cold Storage and produced invoices confirming the receipt from the company of goods into cold storage in the period 30 June 1997 to 27 July 1997 (Exhibit P11). The documentation demonstrated that for the week Monday 30 June 1997 to Sunday 6 July 1997 there were three incoming pallets, and for the week Monday 7 July 1997 to Sunday 13 July 1997 there were two incoming pallets. The five pallets appear to have remained in storage until 27 July 1997.
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Zane Braddon Parsons
32 Mr Parsons was employed as an apprentice butcher with the company during 1997, and on 23 July 1997 assisted in the movement of the motor, but was unable to recall assisting in the removal of the replaced motor. He stated that following an approach on 23 July 1997 he went to the front of the premises where he observed a freezer motor. The plaintiff, his two sons, another employee Colin, and Peter Shewring were present. He recalled that at some time prior to that date he assisted in the transportation of goods from the freezer room to a Cold Store. 33 Mr Parsons did not have a clear recollection of the shifting of the motor, but could recall that it had to be taken down the side of the premises and through a gateway to a position at the rear of the freezer room. He was unable to recall any difficulty manoeuvring the motor through the gateway, save that the task was difficult. Essentially he had little recall of events.
Bevan Thomas Leach 34 Mr Leach is the maintenance manager at Bakewell Foods, having worked there for approximately 25 years, and had an association with Peter Shewring for about 20 years. His recollection was that in the early morning of 23 July 1997 he had a telephone call from Peter Shewring who indicated that he was at The Dutch Butcher where there had been a compression failure, and enquired as to whether Bakewell Foods still had the Terry V4 compressor unit. That unit was available, having become redundant to Bakewell Foods' requirements in about 1994, and was sitting on a concrete pad out the front of the factory, with other plant. Mr Leach stated that the telephone call was the first approach that he had from Peter Shewring concerning purchasing the equipment. 35 Following the telephone call Mr Leach went and spoke to the company accountant, Mr Jenkins, concerning sale of the motor, and following a recommendation by Mr Leach, $2,000 was set as the purchase price. He then rang Peter Shewring, advised him of the price, and told him that because The Dutch Butcher was not known to Bakewell Foods, it required cash on delivery. He stated that he heard a background conversation at the other end of the line, following which Peter Shewring agreed the price and stated that he would be over with the money. About 45 minutes later Mr Shewring turned up with cash in his hand which Mr Leach instructed him to take to accounts. Thereupon the motor was placed on a forklift and loaded on to an aluminium tray back utility.
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Mr Leach had a vague recollection that the utility was orange in colour "which to me was Pegasus". 36 In cross-examination it was put to Mr Leach that subsequent discussions he had with Peter Shewring about the matter had influenced his recollection, but he was adamant that he had a specific recollection of what had occurred. He claimed that he had not been involved in the sale of redundant equipment on any earlier occasion. He stated that the price of $2,000 was simply based upon his appreciation of the value of the motor. 37 Mr Leach stated that Peter Shewring was in the office, apparently making payment, when the courier arrived, and he could not recall the courier requiring a dispatch signature. He claimed that Peter Shewring had told him that The Dutch Butcher was sending the courier. 38 In cross-examination Mr Leach was referred to a statement that he provided on 1 May 2000 which he agreed was fairly vague, and in particular did not state the purchase price of the motor. He agreed that he was able to recall the purchase price because of discussions he had subsequently with Mr Shewring, and not as a consequence of memory. 39 He further agreed that Mr Shewring had reminded him of the involvement of The Dutch Butcher, during their subsequent discussions. He agreed that other Bakewell Foods' redundant equipment had been donated to St Vincent de Paul because it was taking up valuable space.
Peter Michael Shewring 40 Mr Shewring, a refrigeration mechanic, was in 1997 one of the proprietors of a refrigeration repair business, Line Air Contractors. He started his own business in 1980 and in that year installed the replaced motor for the plaintiff. Since 1980 he had done considerable work for the plaintiff, basically attending to all his refrigeration requirements, the company having four cool rooms and one freezer room. 41 Mr Shewring stated that in June 1996 he supplied the plaintiff with a second-hand Kelvinator unit and blower which had been obtained from Bakewell Foods and which was paid for by "the company cheque". He then installed the unit and invoiced the plaintiff. He stated that the plaintiff was generally slow to pay, but the situation was tolerated because of a longstanding relationship between the plaintiff and Mr Shewring Snr. He stated that in 1997 he was going to the premises of The Dutch Butcher
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approximately monthly. If in the course of an installation it became necessary to manhandle equipment, the plaintiff would supply the labour – that is the company's employees. 42 Mr Shewring stated that in June 1997 the shaft seal on the Kelvinator T82 compressor had worn out and needed replacing, as did the oil and gas. He stated that following a phone call from the plaintiff he went to inspect the freezer motor and attended to the work. To carry out the required work it was necessary to unbolt the compressor, remove the safety guards, and turn the compressor around, and he stated that he was assisted in this task by the plaintiff. Mr Shewring then attended to the necessary repairs, and with the plaintiff's assistance manually reattached the compressor. He referred to the plant service order 1152 in Exhibit P2 referable to the work described by him. Following the issue of that invoice the plaintiff's total indebtedness to the defendants was of the order of $7,000. He pointed out that a cheque for $2,440 issued by the plaintiff was dishonoured in May, and a further cheque for $500 in June. 43 Referring specifically to the events of 23 July 1997 Peter Shewring stated that the plaintiff rang him at about 7.30 that morning and said that the freezer was unserviceable. As a consequence Mr Shewring called at the premises at about 8.45 am and observed that the Kelvinator T82 compressor had lost gas. After inspecting the replaced motor he told the plaintiff that there was a broken pipe and dissipation of gas, and that the equipment needed repairing. He told the plaintiff that he could either buy a new motor or get a replacement compressor, but the plaintiff was not interested in either option. As a consequence Mr Shewring suggested acquiring the second-hand Terry motor at Bakewell Foods. At the plaintiff's request, made in his office, Mr Shewring rang Bevan Leach asking about the availability of the unit, and seeking a price. He stated that he gave Mr Leach The Dutch Butcher phone number, and that Mr Leach rang back after about 15 minutes to indicate that the unit was available at a price of $2,000. Mr Shewring relayed that information to the plaintiff who was happy with the price. Mr Shewring thereupon told Mr Leach that the price was acceptable. He claimed that he told the plaintiff that because of the state of the company's account with the defendants, the plaintiff would have to purchase the equipment direct, and would need either cash or a bank cheque. Mr Shewring then said that the plaintiff would have to get a courier to go to Bakewell Foods and pick up the unit. 44 Mr Shewring stated that he had a discussion with the plaintiff about how to get the unit around the side of the factory, and he suggested a long
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reach crane which he estimated would cost between $300 to $500. The plaintiff could not afford it. Mr Shewring then recommended labour hire, to which the plaintiff responded that he had plenty of workers who could do the job. They also discussed the option of dismantling the unit, which would add another four hours or more to the installation time and result in a delay of 24 hours before the motor could be commissioned. The plaintiff was not interested in that prospect, insisting that he would supply the labour. The plaintiff rang a courier and Mr Shewring left the plaintiff's office and went down and disconnected the replaced motor, which took approximately half an hour. He then went to Bakewell Foods taking $2,000 which the plaintiff had produced from a large roll of notes in a bag in his office. 45 Mr Shewring stated that when he got to Bakewell Foods he offered the money to Bevan Leach who declined to take it and directed him to the office where he gave it to a girl in front of Andrew Jenkins office. Mr Shewring claimed that he wrote out the name and address where the receipt for the money was to be sent, and then left the office. By that stage the courier had arrived and he watched the loading of the motor on to a one tonne flat top Toyota truck, following which he had a coffee in Bevan Leach's office before returning to the premises. The courier was already at the premises when he arrived, having backed the vehicle up close to the gate. The motor was at the back of the vehicle and the plaintiff, his two sons, Colin Shepley and the courier driver were standing near it. 46 When Mr Shewring arrived, the plaintiff asked him for a pair of tin snips which he supplied to enable the plaintiff to cut a piece of tin from a protruding roofline to enable access. Mr Shewring stated that they then lifted the motor and carried it to and placed it on the raised flower bed wall. He suggested that when carrying the motor he was standing beside the plaintiff, the plaintiff's two sons were opposite them, the courier was on another side of the condenser, and Colin Shepley was on his left. He stated that when the motor was resting on the flower bed wall, Rian Ottes went and got two milk crates to support the other side of it. Mr Shewring denied any discussion concerning the motor's weight. 47 Mr Shewring stated that it was impossible to shift the motor through the gateway unless it was on its side, and consequently they rolled it on to the condenser, picked it up, and walked through the gate area. Mr Shepley and the courier had to release the motor as it went through the gateway because of insufficient access, but once it had been taken through the gateway the six of them carried it and placed it on strategically
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positioned milk crates. In this manner it was transported to its final resting position. 48 Mr Shewring stated that according to the manual specifications the motor and compressor weighed of the order of 284 to 294 kg. 49 Mr Shewring claimed that after the motor had been carried to its final position he observed the plaintiff paying the courier the transportation fee, and an extra $20 cash for assisting in the lift. He claimed that he told the courier he was lucky to get paid straight away. 50 Mr Shewring claimed that Zane Parsons said he had not assisted, because he had been injured at football. 51 Having commissioned the motor, Mr Shewring stated that he told the plaintiff he would call the following day to check that everything was in order. 52 Mr Shewring was referred to appliance order 1153 dated 24 July 1997 which included the cost of the installation, and an additional amount covering the second dishonoured cheque and the dishonour fees. He claimed that he discussed the invoice with the plaintiff and requested immediate payment but was told by the plaintiff that he was unable to pay for several days. In the event payment was not made and legal proceedings for recovery were instituted. 53 Mr Shewring stated that when he was at the premises in late February 2000 the plaintiff indicated that he was fighting HIH Insurance over a claim for a back injury he sustained when carrying the motor. 54 Mr Shewring agreed that the replaced motor failed on three occasions in 1997, the last being when replacement occurred. Invoice 1154 dated 4 February 1997 related to regassing at a cost of $1,390. Invoice No 1 dated 2 May 1997 related to repairs to a broken suction line on the compressor and regassing at a cost of $1,680. Invoice No 3 dated 23 May 1997 related to a broken shaft seal, being the occasion when the compressor had to be taken from its base; and regassing was again required when a similar problem occurred in June 1997. 55 The cross-examination of Mr Shewring suggested some deficiency in his tax accounting methods, particularly relating to the receipt of cash payments from the plaintiff, and insofar as it can be inferred that there may have been consequences adverse to the revenue, it reflects on the credibility of both.
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56 Mr Shewring stated that during the early part of July 1997 he was unaware that the freezer room was not working, and disputed that there had been a conversation with the plaintiff and himself three or four weeks prior to 23 July 1997 when the plaintiff stated that he required a replacement motor. He was adamant that it was not until 23 July 1997 that he suggested to the plaintiff that he acquire a new motor for the freezer room.
57 Mr Shewring agreed that on an occasion in 1996 when the plaintiff was seeking refrigeration equipment, he suggested that Bakewell Foods might have suitable equipment available. He then rang Bakewell Foods accountant Mr Jenkins to arrange to purchase the equipment and subsequently gave a cheque to him. A receipt was not issued. A price of $600 was set by Bakewell Foods, and Mr Shewring stated that John Ottes organised a courier to pick up the equipment. The defendants charged the plaintiff $950 for the equipment, a mark up of $350, although Mr Shewring asserted that it was necessary to carry out some modification work on the equipment before installation. 58 Mr Shewring stated that when he saw the replaced motor on 23 July it was obvious, by reason of the fact that it was cold, that it had not been working for some hours. He said it had not lost gas, but there was a lot of spilt oil. He claimed to have gone inside the freezer room which he observed still contained frozen product. He agreed that in respect of the motor supplied in 1996, which was acquired from Bakewell Foods, the defendants became the owners of it, and then sold it to the plaintiff. 59 Mr Shewring was cross-examined concerning his answer to an interrogatory sworn 18 May 2001 wherein he had asserted that the defendants had not previously purchased motors or other items of electrical equipment from Bakewell Foods. He claimed that the answer was correct because what had been previously purchased was refrigeration equipment, which was a different thing to "motors and/or electrical equipment". I do not accept the subtle distinction that he endeavoured to make, and the answer demonstrates a lack of candour. 60 In respect of the $2,000 cash allegedly provided for the purchase of the motor, Mr Shewring stated that the plaintiff gave it to him in his office, having obtained it from a white plastic bag on a shelf. He was quite clear that he asked for $2,000 not $1,900. He stated that the plaintiff turned and got the money from a bag under a shelf. He agreed that he said to his counsel that the money could possibly have come from a safe. He further stated that the plaintiff did not require a receipt when handing him
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the $2,000, and he estimated that after providing the money, the plaintiff still had something of the order of $3,000 cash remaining. He stated that after receiving the money he went downstairs and disconnected the replaced motor, which took approximately half an hour. He denied that he then shifted the motor. He stated that having disconnected the replaced motor he went to Bakewell Foods, and after speaking to Mr Leach, gave the money to a girl at the counter in front of the accountant's office, telling her that it was for the purchase of some refrigeration equipment. He claimed that there were a number of other people in the office at the time. 61 Mr Shewring was again referred to his answers to interrogatories in which he stated that he had handed over approximately $2,000, and was unable to provide an explanation why the word "approximately" was used. 62 Mr Shewring was not prepared to accept that the weight of the motor was 340 kg, suggesting that when weighed by the plaintiff it would have contained 20 to 30 kg of refrigerant, which would not have been there before it was installed. 63 He agreed that the use of a crane would have been appropriate for shifting the motor, although he suggested that because of the final resting position, it would still have been necessary to manually move it. 64 Mr Shewring would not agree that the plaintiff was not in a position to assess the weight of the motor, pointing out that the plaintiff had assisted him manually handle the replaced motor when it was installed in 1980, and he pointed out that the motor had been manually lifted from the back of the courier vehicle before he arrived. His view was that the people who manually moved the motor, were adequate to the task. He also stated that the plaintiff rejected the suggestion that a crane or hired labour be used. 65 Mr Shewring was quite certain that there was no discussion concerning the possible use of a crane after the motor arrived, being adamant that the discussion took place in the plaintiff's office before he went to Bakewell Foods to pay for the motor. He was again referred to his answers to interrogatories, in which he had stated in response to a question as to whether there had been discussions concerning the shifting of the motor after its delivery: "Access to the rear of the premises was found to be inaccessible by mechanical means such as by way of a trolley. The plaintiff stated that he was not prepared to pay for any additional cost of having the freezer motor moved mechanically. The plaintiff
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stated that he arranged for his employees and the driver of the courier vehicle to shift the freezer to the rear of the premises. It was also suggested to the plaintiff by Peter Shewring that a long lift crane could be used to shift the motor but the plaintiff refused to do so because of the cost involved". The answer is in conflict with his evidence, and again goes to his credit. 66 Mr Shewring was certain that the courier assisted in the lift. He was directed to the pleadings where it was stated in the defence that he did not know how much the plaintiff paid the courier to assist with the lift. The plea is in conflict with his oral evidence that it was $20, and again his explanation for the discrepancy was unsatisfactory. 67 Mr Shewring agreed that difficulty was experienced getting the motor through the gateway, and that some of those helping in the lift had to drop off to allow passage through the gateway. He denied, however, that having got the motor through the gateway, rollers were then used to shift it. He was also adamant that tin snips had been used to partially remove a piece of roofing to facilitate the shift.
Colin Arthur Shepley 68 Mr Shepley, a butcher, was at the relevant time working for The Dutch Butcher. He stated that on 23 July 1997 he was asked to go out and help shift the motor. He stated that he also assisted the plaintiff and his two sons shift the replaced motor. After shifting the replaced motor he went back to his normal duties, and later in the morning was approached by the plaintiff to assist in moving the motor. He stated that he went out to the front of the factory with the plaintiff's sons and observed the courier vehicle with the motor on it. The motor was lifted from the vehicle by the courier, the plaintiff, his two sons, and Mr Shepley. Five to 10 minutes later Peter Shewring arrived, and some discussion, the details of which he was unable to recall, took place concerning shifting the motor. 69 Mr Shepley stated that the motor was carried through the gateway "but it was a tight struggle to get it through". He said it was then carried down the laneway and placed on crates while they rested. He could not recall anything unusual about the lift. His recollection was that the courier departed after the motor was taken from the vehicle. He did not recall a discussion about using a crane, his understanding being that it was accepted that the motor was to be manually lifted. He also agreed that
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some helpers had to fall away to enable the motor to pass through the gateway.
Factual findings 70 The issues before me have proceeded on the basis that identification of the contractual relationship between the company, the plaintiff, and the defendants, is fundamental to their determination, although in the context of the issues, I do not think it is determinative. 71 Resolution of the factual controversies arising from the evidence is the more difficult because there are serious shortcomings in the credibility and reliability of the evidence of the principal protagonists. I formed a very firm impression that the recollection of each of them, as to the matters central to the dispute, was influenced by the result they hoped to achieve, and that there were occasions when they either augmented or sanitised their evidence accordingly. In the result a determination of the relevant relationship must necessarily be based to a significant extent on likelihood or probability.
The alleged discussions concerning, and the acquisition of the motor from Bakewell Foods 72 The plaintiff's evidence was that he had a discussion with Peter Shewring in about May 1997 when Mr Shewring informed him of the availability of the motor, but claimed that there was no further discussion before its arrival on 23 July 1997. In particular the plaintiff claimed that there was no discussion concerning price, as he left all aspects of the acquisition of the motor to Mr Shewring. Following the discussion in May 1997 the plaintiff would have it that he did not further address the subject until the motor arrived and was observed by him on a pallet underneath the carport. Having regard to the fact that the plaintiff asserts that the replaced motor was unserviceable for about a month prior thereto, and that he was obliged to put product in storage, that is difficult to comprehend and accept. Mr Shewring on the other hand maintains that the proposed purchase of the motor from Bakewell Foods did not arise until the meeting between himself and the plaintiff in the plaintiff's office on 23 July where he had been called because of the failure of the replaced motor. He was aware of the availability of the motor at Bakewell Foods, and I think it is likely that he would have brought that fact to the attention of the plaintiff before 23 July 1997, but that because of the obviously
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constrained financial position of the company, acquisition and installation of the motor did not proceed expeditiously. 73 I am satisfied on the evidence that Peter Shewring attended the premises in the early part of the day on 23 July 1997 to decommission the replaced motor. His evidence to that effect is supported by that of Carl and Rian Ottes. I am satisfied that at that time he would have discussed the acquisition of the motor from Bakewell Foods, since the very purpose of decommissioning the replaced motor was to replace it, and replacement was essential. I am satisfied that during the discussion that took place in the plaintiff's office, Mr Shewring rang Mr Leach to ascertain the price at which the motor could be purchased. Clearly that would have been of particular significance to the plaintiff, and reason would suggest that the setting of the price was essential. 74 I accept the evidence of Peter Shewring, supported as it was by Mr Leach, that a price of $2,000 was established. I do not, however, accept that the plaintiff handed Mr Shewring $2,000 cash, as the evidence suggests that at that time the company's financial position was precarious, and it is unlikely that the plaintiff would have had something of the order of $5,000 cash readily available. 75 I am not satisfied that a sum of $2,000 was handed by Peter Shewring to a female in the accounts section of Bakewell Foods, as he did not suggest that he sought or obtained a receipt on payment, which, having regard to the fact that it was cash, would be extraordinary. Further there is no record of Bakewell Foods having received that sum. It is also to be remembered that in his answer to interrogatories Mr Shewring claimed to have handed over "approximately $2,000". 76 Insofar as the evidence of Mr Leach is contrary to the above finding I reject it, and would observe that the impression that I obtained from the manner in which he gave his evidence, is that his memory of events has been supplemented with information obtained in discussions he subsequently had with Peter Shewring. 77 I am satisfied that in negotiating the purchase of the motor with Bakewell Foods Mr Shewring did so as agent for the company – that is it was always intended that the company, not the defendants, would be the purchaser thereof. Having regard to the state of the defendant's account with the company, it is unlikely that Mr Shewring would have been prepared to expend money to purchase the motor and then have to look to
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the company for reimbursement. That view is also consistent with the fact that the defendants never invoiced the company the cost of the motor. 78 I am unable to make a finding as to who engaged the services of the courier to collect the motor. It is extraordinary that he was not able to be identified and called to give evidence.
The delivery and manual shifting of the motor 79 The burden of the evidence is that Mr Shewring was not present when the motor was delivered to the premises, and I accept the evidence of Mr Shepley that it was manually removed from the courier vehicle by company employees including the plaintiff, and placed in the position in which it was observed when Mr Shewring arrived. The plaintiff would have been fully conscious of its weight, and able to assess the appropriateness of manually shifting it to its position contiguous to the freezer room. 80 I do not accept the evidence of the plaintiff that any discussion took place concerning the weight of the motor, and would observe that the only other person to suggest there was such a discussion was his son Rian. Rian's evidence was that Mr Shewring indicated a weight of 200/250 kg, whereas the plaintiff's contention was that he said it weighed 200 kg. 81 The decision as to how the motor was to be shifted from its position in the carport to its final resting place, was the plaintiff's. Addressing that issue did not require any particular expertise, and Mr Shewring was in no better position to make the decision than the plaintiff. When the plaintiff arranged for fellow employees to assist in the manual shift he was not subject to the direction of Mr Shewring, or reliant upon his advice. He was at liberty to engage lifting equipment if deemed appropriate, but I have little doubt that the company was not prepared to go to that expense. 82 It is to be observed that of the persons assisting in carrying the motor, only the plaintiff suggested that there was anything remarkable about the activity undertaken.
The duty contended 83 The plaintiff's case is that by reason of the necessary skill and expertise it possessed in installing motors the defendants owed him a duty of care not to expose him to foreseeable risks of injury during the installation process.
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84 In his closing address counsel for the plaintiff expressed the duty as "not to act in a way that is likely to cause injury". "He is entitled to expect a level of care and responsibility from the defendant that he doesn't have, and part of that is what is an accurate assessment of the weight of this" (the motor).
85 In respect of the issue of foreseeability counsel for the plaintiff said: "Your Honour can take judicial notice that something that weighs 340 kg is a very heavy weight … it doesn't need an expert to come along and say 'its foreseeable'. The facts speak for themselves on it." "Its just the application of general principles your Honour. Its proximity is, its submitted, established, and once there is a duty of care, then the defendant has a responsibility to prevent foreseeable risk of injury."
No duty established 86 Proximity, long regarded as a "broad and flexible touchstone of the circumstances in which the common law would admit the existence of a relevant duty of care to avoid reasonably foreseeable injury to another" (Jaensch v Coffey (1984) 155 CLR 549 at 584) has since been rejected as a basis for determining whether a duty of care exists in fact (Sullivan v Moody [2001] 75 ALJR 1570). That case also declared that foreseeability of harm is not sufficient to give rise to a duty of care as the Court said at 1577: "But the fact that it is foreseeable in the sense of being a real and not far-fetched possibility that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness and harm results … . A defendant will only be liable in negligence for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff in circumstances where the law imposes a duty to take such care." 87 In Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254 Gleeson CJ at 266 said: "The common law distinguishes between an act affecting another person, and an omission to prevent harm to another. If
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people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable." 88 On the facts as I find them, the only basis upon which it could be contended that the defendants were under a duty of care to the plaintiff, would be that the manual shifting of the motor constituted a foreseeable risk of harm to the plaintiff, which they had a duty to prevent. If there was a foreseeable risk of injury, which I am unable to conclude on the evidence, there was in all the circumstances no duty on the defendants to eliminate it. 89 If I am wrong in the conclusion I have reached that the defendants did not in all the circumstances owe a duty of care to the plaintiff, I would on the whole of the evidence hold that the plaintiff voluntarily assumed any risk of injury inherent in the lifting operation. It is the plaintiff's case that the risk was so obvious that the Court can take judicial notice of it. If that be the case, it must have been obvious also to the plaintiff, who with that appreciation, voluntarily undertook the risk, thus absolving the defendants from responsibility for it. In those circumstances the defendants were not under a duty of care towards him. |