Philip John Gunter v Electricity Trust of SA No. SCGRG 92/291 Judgment No. 4072 Number of Pages 9 Damages

[1993] SASC 4072

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA ANDERSON J

CWDS
Damages - Plaintiff injured whilst unloading at defendant's premises - his version of facts not established to necessary degree so as to render defendant in breach of any duty owed to him damages not assessed.

HRNG ADELAIDE, 8-11 June 1993 #DATE 29:7:1993
Counsel for plaintiff:     Mr M S Fricker
Solicitors for plaintiff:    Scammell and Co
Counsel for defendant:     Mr D A Trim
Solicitors for defendant:    Phillips Fox

ORDER
Judgment for defendant.

JUDGE1 ANDERSON J The plaintiff claims against the defendant for damages for an injury sustained by him when unloading equipment from his truck at the defendant's Whyalla depot on 16 March, 1989. The claim alleges a failure of the defendant in the duty owed to the plaintiff or, in the alternative, that the defendant was negligent in relation to its responsibilities to the plaintiff in his capacity as a truck owner-driver working at that depot. 2. At trial the plaintiff was 39 years of age. He left school at age 15 and worked continuously, until he was prevented from so doing as a consequence of the injury, in general unskilled labouring/trucking type work. Over time he became a truck driver for various employers and then, at the invitation of one, purchased his own vehicle and thenceforth worked as a sub-contractor. From October 1987 he had been a sub-contractor with TNT on the basis that he would work as needed with that company having first call on his services. He worked usual hours from morning until afternoon and generally delivered locally. Occasionally, he delivered to the country. 3. It was his work with TNT that saw him assigned to take a load from the defendant's yard at Angle Park to its depot at Whyalla on 15 March, 1989. That afternoon he went to the ETSA depot at Angle Park where his truck was loaded by an employee of the defendant using a forklift. The configuration of the load as it was there placed formed a central part of this trial. The plaintiff's equipment consisted of a prime mover and trailer. The trailer was approximately 8 feet wide and 30 feet long. At Angle Park ETSA loaded two containers across the front of the tray and then loaded five sealed containers on pallets down each side of the tray. There is no certainty in the evidence as to the dimensions of each of these containers but they were sealed and contained insulators and were on the usual wooden pallets which stood approximately 6 inches high and allowed for forklift tines to be inserted for lifting purposes. With the pallet, each container was approximately three feet long by two and a half feet deep and three feet high. Once the five containers of insulators had been placed down each side of the tray of the truck the forklift was then used to deposit five permapine poles of approximately 17 to 20 feet in length and 6 inches in diameter into the gap left in the middle of the tray between the inside edges of the two rows of insulators. There they came to rest with three on the bottom and two sitting in the natural valleys thereby created. The whole load was roped down by the plaintiff as part of his normal duties. He then left the ETSA yard and went to his home where he had dinner and a rest. Later in the evening he, in the company of his father, who has since died, set out for the defendant's yard at Whyalla. They arrived in the early hours of the morning and spent some time sleeping. 4. The defendant's employees commenced to arrive at the Whyalla depot soon after 7.00 a.m. The plaintiff was informed that the gates would be opened at 7.30 a.m. At that time he drove his truck into the defendant's yard and parked it in the usual unloading area. He then spoke to the person he described in his evidence as the head storeman and gave him the load manifest which he had received after loading at Angle Park the previous afternoon. There is no doubt on the evidence that that person to whom the plaintiff spoke was Mr. Gray, who gave evidence and who has been the storeman at the defendant's Whyalla depot for nineteen years. He was the only person then so employed. 5. Having given Mr. Gray the manifest the plaintiff said that Mr. Gray indicated that he would change his clothes and be back shortly. He in fact returned after about fifteen minutes wearing a helmet. Mr. Gray, in his evidence, said that was all he did and he doubted he was away fifteen minutes as he had come to work dressed for work. 6. On the plaintiff's evidence at approximately 8.00 a.m. a mobile crane owned by Brambles arrived. That crane was driven by Mr. Wilkinson, who gave evidence. Both he and Mr. Gray confirmed the approximate arrival time of the crane. 7. The conversation which the plaintiff alleges he had with Mr. Gray is crucial to his case. I set out that evidence from the examination-in-chief:
    "Q. Was the load inspected by anyone.
    A. Yes.
    Q. By whom.
    A. By the head ETSA storeman.
    Q. What did he say, if anything.
    A. He had a look at the load, and he said that it would
    be a little bit impossible to unload that load, that
    particular load with the crane, because everything was
    jammed up tight together.
    Q. Did you say anything to this.
    A. Yes.
    Q. What did you say.
    A. I said the load was loaded with the fork-lift down
    at ETSA at Angle Park. Have you a fork-lift available.
    Q. What did he say.
    A. He said if we had been informed it was loaded with a
    fork-lift, we would then have been able to organise a
    fork-lift to be here to unload it with a fork- lift.
    Q. Did you make any suggestion.
    A. I asked the storeman how long it would take to
    organise a fork-lift.
    Q. What did he say.
    A. He said that that process would take far too long to
    organise, and it should have been done the day before.
    Q. What did you next say, if anything.
    A. I then asked for some physical help to actually get
    on to the truck and try and lift the pole to get a
    bearer underneath so we could get a sling from the crane
    underneath to try and lift them off, which was refused.
    Q. Do you remember what was said.
    A. He said that he couldn't allow any personnel on to
    my vehicle because it was against union regulations.
    Q. Did he say anything about your vehicle, as distinct
    from any other vehicle.
    A. No.
    Q. As distinct from any ETSA vehicle.
A. No." 8. It was then that the plaintiff decided that he would have to unload the poles by himself so as to allow the sling from the crane to be inserted through the pallets of the insulators to facilitate their lifting. Because of the position of the poles against the insulators and occupying the whole of the middle area of the tray it was not possible to put those slings through until the poles had been removed. Accordingly, the plaintiff set about removing those poles and he did so by lifting them individually and placing them through the tailgate and then by standing on the ground and pushing against the back of the trailer and, whilst holding the pole above his head, levering the pole backwards to the position where it was nearly off the tray. He put that end to the ground and then took the part of the pole still resting on the tailgate in a bear hug and pushed it sideways past the tailgate and lowered it to the ground. He did that with the first two poles without difficulty. It was as he was unloading the third pole in like manner, and walking backwards to slide it off the tray, that he unintentionally stepped upon one of the poles previously taken from the tray and lying on the ground. He slipped off that pole and lost hold of the third pole, which he was then holding above his head. Having lost his balance he lost his grip on the pole and "it crashed on to (his) head and shoulder causing a crunching sensation". This was his left shoulder. The end of the pole then fell to the ground. The defendant described the crunching sensation as being like "bones were cracking inside my body". He also suffered a loss of breath. He went and sat on the spare wheel rack of the truck and his father rubbed his back. He was there for a few minutes to regain his breath before he returned and completed lifting the third pole, the other end of which was still in the tailgate, to the ground and then removed in like manner the fourth and fifth poles. 9. Thereafter, the slings of the crane were put through the pallets as I have described and the truck was completely unloaded. The plaintiff said in his evidence that this stage was reached somewhere between 10.00 and 10.30 a.m. He said he then left the ETSA depot to return to Adelaide. As he sat in the driver's seat he was uncomfortable with pain around his neck and shoulder and a headache developed as he was driving. He stopped in Port Augusta to buy Panadol and have a rest and reached his home at 7.00 p.m. that evening. After eating and showering he went to bed. When he awoke the following day he had pain around his left shoulder and neck and took more Panadol before he went to work. No report of this incident was made by him to ETSA in Whyalla or Adelaide or to TNT upon his return. 10. In the course of the evidence Mr. Trim, of counsel for the defendant, indicated that the defendant no longer pursued its pleading that there was no causal link between the activities of the plaintiff and the injury which he sustained as the pain from which the plaintiff complained did not become severe until 24 March, 1989 and he did not seek medical attention until 26 March, 1989. From the evidence of Dr. Hanieh it became apparent that this time gap was not of the consequence that Mr. North had suggested in his evidence and the irresistible conclusion from the evidence is that the dropping of the pole at Whyalla was the direct cause of the injury which the plaintiff sustained and which caused him severe difficulty from 24 March, 1989 onwards. 11. The plaintiff, notwithstanding that he had pain from 24 March, 1989, continued to work intermittently even though he was dissatisfied with the initial medical diagnosis and the subsequent physiotherapy which was ordered. He continued to take Panadol and his condition deteriorated. On 24 April, 1989 he saw Dr. Krishnan for the first time and he then immediately diagnosed a compressed nerve. Subsequent examinations confirmed that diagnosis and Mr. Khera, neurosurgeon, saw him after he had been referred on from an orthopaedic surgeon, Mr. Ghan. He saw Mr. Khera on 27 April, 1989. He prescribed surgery but the plaintiff was unable to afford it as a private patient and waited until July 1990 when that surgery was performed at the Queen Elizabeth Hospital as a public patient by Mr. Hanieh. 12. After the operation the plaintiff returned to work for TNT on 6 November, 1990 and worked in the normal way on that morning. He had difficulty because he was not sufficiently strong to deal with the ropes and tarpaulins on his truck as he had been previously. In the afternoon of that day he was medically examined at the request of TNT and thereafter he received no further work from them. He continued to seek sub-contracting transport work from other sources and did that work until March 1990 from which time he was unable to continue. He became a recipient of the sickness benefit and on 13 September, 1990 became an invalid pensioner. That is his present status. Since then he has done no light work although he has attempted an office retraining course under the auspices of the Commonwealth Rehabilitation Service, but he was unable to sit for the required periods and gave up any thought of pursuing such alternative training. 13. That completes an overview of the plaintiff's physical and historical position, except to say that he continues to suffer pain and continues to take Panadol on a daily basis. He is a quite different person compared with before March 1989. He is no longer strong. He is no longer self-confident and he no longer has a firm and stable marriage. He has sold his truck and is no longer able to undertake any heavy physical work at all. Any damages to be assessed are to reflect his status as the sole working family member based upon the taxation returns put into evidence. 14. The defendant's case relies principally upon a substantial and concerted attack upon the plaintiff's version of what occurred and the order in which it occurred immediately prior to and during the scenario at Whyalla described by the plaintiff in his evidence. It was, in essence, the defendant's position that what the plaintiff has described occurred as to the incident but did not occur in the manner or at the time which he described. 15. In cross-examination the plaintiff agreed that the crane arrived at about 8.00 a.m. He then reiterated that the storeman had indicated that the crane would not be able to be used until the poles were moved from the centre of the load and then said that he asked the storeman for some physical assistance to lift a pole so that a bearer could be placed underneath to allow a sling to be put under a pole. He reiterated the storeman's words not allowing "any of our employees on to anyone else's vehicle" and that the acquisition of a forklift was out of the question. At this time according to the plaintiff the crane driver was sitting in his crane about twenty feet away. The plaintiff did not speak to him at all. He said that the storeman stood there and looked at him as he got up on the truck and then, whilst he was doing the work which I have previously described, the storeman was "standing talking to the crane driver the whole time ...". He was there, said the plaintiff, whilst he unloaded the first two poles and during his loss of balance and control of the third pole, whilst he moved to the driver's side of his truck and sat on the spare wheel rack in direct view of both the crane driver and Mr. Gray, who were at that time, on the plaintiff's evidence, conversing amongst themselves on that side of the truck merely twenty feet away. He said that the crane driver was seated in the crane looking directly at the truck from its driver's side. At no time, according to the plaintiff, did either the crane driver or Mr. Gray offer any assistance or make any comment to the plaintiff whilst the unloading of the poles took place. 16. In cross-examination the plaintiff indicated that he was not surprised that his request for assistance had been declined because he knew that in the industry other persons did not usually get on to trucks to help the driver unload. He went so far as to say that "no one was allowed to get on to a Transport Worker's Union member's vehicle other than a transport worker himself". The plaintiff was a member of that Union. He conceded that on occasions members of other Unions "bent the rules" and lent assistance but that was unusual. He said it was unusual both at the various places where he loaded and unloaded in the course of his work and at the TNT depot. He conceded that the rules were bent where it was necessary for a load to be unloaded manually because it was, for example, small parcels. At the end, however, the plaintiff's position was an affirmative answer to Mr. Trim's question that it was "most unusual" for the rules to be bent. He denied that it was "a day to day occurrence at the TNT depot, that crane drivers, and forklift drivers, and persons generally helping with the loading and unloading procedures, would get on and off the tray of trucks to assist". Under further cross-examination the plaintiff retreated from this somewhat firm position and sought to take comfort in the fact that most of his loads were unloaded by cranes or forklifts and so there was strictly no getting on to vehicles as such in the course of such activity by persons other than himself who, as driver, was required to assist in any unloading. 17. However, the weight of the plaintiff's evidence deteriorated considerably as a consequence of evidence given, in particular, by Mr. Gray and by Mr. Wilkinson in addition to evidence given by Mr. Lewis, the then district foreman, and Mr. Warner, the former district foreman. 18. Mr. Gray, in his evidence, said that he had been the storeman at that depot for nineteen years. He said that it was not unusual to have a load of the configuration of that carried by the plaintiff brought to Whyalla and that those loads had in the past been always unloaded by a crane. He went so far as to say that to the best of his knowledge there was not a forklift available for hire in Whyalla. He conceded that he had no recollection of this specific day as at the time of trial, notwithstanding what may have been deposed to by way of an answer to an interrogatory or referred to in correspondence as between the parties and their representatives over the course of time. Whilst not having any specific recollection of the plaintiff's visit to Whyalla on 16 May, 1989, he denied that he had ever seen a driver manually unload poles at all or in the manner described by the plaintiff. He said that had that happened he would have provided assistance as there was no rule that ETSA employees were not to assist in the unloading of trucks. Mr. Gray impressed me as a person who, in the course of his employment would comply strictly with the rules. He made it quite apparent that he was acutely aware of the occupational health and safety hazards attached to the unloading of such a load and would not see rules in relation thereto breached. I gained the firm impression that he would not countenance any person putting himself at physical risk through a manoeuvre such as that described by the plaintiff when it was usual practice for ETSA to manually transport similar poles around the depot by using four men. 19. Mr. Gray denied not only refusing assistance but standing by and watching the plaintiff do as he said he did. He denied also that there was any Union difficulty which prevented the sort of assistance that the plaintiff allegedly requested from being given and went so far as to say that it was given all of the time when needed and that physical resources were readily available should the need arise. 20. Mr. Wilkinson has been the crane driver at Brambles for some years. He also, whilst a regular attender at the ETSA depot to unload the Thursday load from Adelaide, has no separate recollection of 16 March, 1989. He has, however, helped unload loads of similar configuration by lifting with a bearer one end of a pole, attaching the sling and then repositioning the sling to allow for a subsequent lift by crane. He has never seen any truck driver completely unload poles manually. He has, from time to time, assisted persons to unload by helping with the slinging and he said that he would not have sat and watched the plaintiff do as he said he did without offering assistance. 21. Both Mr. Lewis and Mr. Warner, who were not present but who are familiar with the practices of the ETSA depot over many years, gave evidence which corroborated that of Mr. Gray and Mr. Wilkinson. They have seen such loads arrive. They have seen them unloaded by crane and on many occasions have seen all necessary manual assistance given to unload such loads. A forklift has never been used even though Mr. Wilkinson said Brambles had them available for hire. They have never seen poles such as these, which were regularly used at Whyalla, unloaded by one man. 22. It is apparent from the evidence that the crane was present at the depot for about two hours on 16 March, 1989. It is apparent also from the documentary evidence that the unloading having been completed a salvage load for the return trip via Port Augusta was loaded. The plaintiff has no recollection of any salvage load and no recollection of stopping at Port Augusta for the loading and unloading of further salvage on his return journey. He has put his time spent in Port Augusta down to rest brought about by the immediate after effects of the injury. However, there is no doubt that salvage was loaded for Port Augusta and there loaded for Adelaide. It is not possible for the unloading alone to have taken the time stated by the plaintiff in evidence-in-chief. He has either forgotten or put aside this activity in which he must have participated after Whyalla on that day. Whilst the plaintiff acknowledged that he had made other trips into the country for ETSA he was without specific recollection generally speaking as to the detail of those trips notwithstanding that they were made quite approximate to 16 March, 1989. Some were made after that day and, whilst not really specific, he recalled being helped by a friend on one to the north. 23. It was the plaintiff's case that the failure of the defendant to provide a forklift to facilitate the unloading of the plaintiff's truck in the manner which had facilitated the loading at Angle Vale was negligent and a breach of the duty owed to the plaintiff by ETSA both at common law and pursuant to s.29 of the Industrial Health and Safety Act, 1972. The breach alleged is a failure by the defendant to "take all reasonable precautions to ensure the health and safety of workers ... engaged ...". I am unable to agree that the duty on the defendant pursuant to the provisions of that section is different in any way from the common law duty and in that regard I, like Bollen J in Thomas v General Motor's Holdens (1988) 49 SASR 11 at 28, "do not think that that section really adds anything ... to the common law". 24. Whilst the plaintiff gave his evidence-in-chief in a forthright and acceptable manner, when regard is had to his somewhat more definite assertions during cross-examination he is not in as strong a position. The accumulation of evidence of standard unloading practice over many years and the positive denials of the plaintiff's evidence given by the defendant's witnesses, and the omission to recall back loads which must have required some physical effort by the plaintiff further diminish the probative value of his evidence. The onus upon the plaintiff is to satisfy the Court on the balance of probability that the version of the facts upon which he relies is more probably the correct version of events which occurred. On the evidence relied upon for the plaintiff in these circumstances there arises a very real doubt as to whether that evidence is sufficient to discharge that onus of proof. 25. To find that the undoubted duty which the defendant owed to the plaintiff at common law has been breached it is necessary to reject both the specific evidence of Mr. Gray that he neither refused assistance manually nor by alternative mechanical means and the somewhat more independent evidence of Mr. Wilkinson that he has never seen such an event as the plaintiff described and, further, that he would have acted to assist had he done so. Coupled with this evidence is the evidence of the long practice for unloading trucks carrying loads of similar configuration by crane or, with manual assistance as required, at ETSA Whyalla over very many years. In addition, there is the evidence of Mr. Rothe, who was the plaintiff's supervisor at TNT that there were no rules about who unloaded which truck applied at the TNT depot at the relevant time. The remainder of Mr. Rothe's evidence was contested and, for present purposes, I do not seek to rely on it to add weight to the defendant's argument. 26. There is no basis upon which to reject the evidence of Mr. Gray and Mr. Wilkinson. For the plaintiff to discharge the onus of proof which he carries it is essential that that evidence be rejected. It cannot be simply ignored as these men were present on the day. Their evidence is in no way compatible with his version of what occurred at Whyalla on 16 March, 1989. In the absence of such rejection it is not possible to say that the scenario relied upon by the plaintiff is more probably what happened than to the contrary. Indeed, in such circumstances there is much attractiveness about the scenario painted by Mr. Trim in his final address; namely, that the plaintiff arrived at the depot at 7.30 a.m., handed over the manifest and was left by himself at the truck whilst Mr. Gray went away prior to the arrival of the crane and so simply set about unloading the poles, had his accident in the manner which he described and then continued the physical work of not only completely unloading the truck but assisting as required to load again at Whyalla and then unload and load again at Port Augusta and unload at Angle Park. Then, at the end of the following week, realizing that he had sustained a debilitating injury it was then necessary to place it in some context. It is not without significance that at no time (not even on or soon after 24 March, 1989 when he was in much greater pain) did the plaintiff report the incident to anyone at ETSA or TNT. 27. In all of the circumstances I am driven to the conclusion that the plaintiff has failed to establish to the necessary degree that the scenario upon which he relies is in fact what occurred at Whyalla on 16 March, 1989 in the manner described by him so as to render the defendant in breach of its duty to him and therefore liable to him in damages for the injuries which he undoubtedly there sustained. In these circumstances I cannot see any benefit in proceeding to assess the plaintiff's damages. 28. There will be judgment for the defendant. The defendant is to have its costs to be agreed or taxed.