Phillips & Phillips v K-Mart Australia Ltd

[1996] QCA 220

IN THE COURT OF APPEAL	[1996] QCA 220
SUPREME COURT OF QUEENSLAND

Appeal No. 165 of 1995

Brisbane

[Phillips v. K-Mart Australia Ltd.]

BETWEEN:

JASON WILLIAM PHILLIPS an infant by his father and next friend

DARRELL GEORGE PHILLIPS

(Plaintiff) Appellant

AND:

K-MART AUSTRALIA LTD.

(Defendant) Respondent

Pincus J.A. Davies J.A. Ambrose J.

Judgment delivered 25/06/1996

Joint reasons for judgment of Pincus and Davies JJ.A.; separate reasons of Ambrose J. concurring as to the orders.

APPEAL ALLOWED. JUDGMENT BELOW SET ASIDE AND IN LIEU JUDGMENT FOR PLAINTIFF IN THE SUM OF $92,550.00 WITH COSTS. OF THAT SUM, THE AMOUNTS OF $3,026.30 AND $500.00 ARE TO BE PAID TO THE NEXT FRIEND. THE BALANCE IS TO BE PAID TO THE PUBLIC TRUSTEE OF QUEENSLAND, AND THE PUBLIC TRUSTEE IS TO HOLD THAT SUM AND THE INCOME THEREOF AND APPLY IT IN SUCH MANNER AS THE PUBLIC TRUSTEE SHALL THINK FIT FOR THE MAINTENANCE, EDUCATION OR OTHERWISE OF THE PLAINTIFF UNTIL THE PLAINTIFF ATTAINS THE AGE OF EIGHTEEN YEARS. THE APPELLANT TO HAVE HIS COSTS OF THIS APPEAL.

Herbert, Geer & Rundle for the respondent

Hearing Date:  11 April 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 165 of 1995

Brisbane

Before Pincus J.A. Davies J.A. Ambrose J.

[Phillips v. K-Mart Australia Ltd.]

BETWEEN:

JASON WILLIAM PHILLIPS an infant by his father and next friend

DARRELL GEORGE PHILLIPS

(Plaintiff) Appellant

AND:

K-MART AUSTRALIA LTD.

(Defendant) Respondent

Judgment

JOINT REASONS FOR JUDGMENT - PINCUS AND DAVIES JJ.A.

Judgment delivered the 25th day of June 1996

This is an appeal by an infant plaintiff against a judgment given in the District Court in favour of

the defendant in an action for personal injuries arising out of the negligence of the defendant in selling

goods to the plaintiff's father. The goods consisted of an "All Pro" bicycle flag which, it was alleged,

caused serious injury to the plaintiff's eye. The plaintiff also appeals against the amount of damages

assessed by the learned trial Judge, in particular the component of $15,000.00 for loss of earning

capacity.

Shortly prior to Christmas 1986 the plaintiff's father purchased three All Pro bicycle flags for

each of his three sons and attached one to each of his son's bicycles. The plaintiff was then five years

of age and his bicycle was described as a little BMX. An All Pro bicycle flag consisted of a fibreglass pole, in two sections of approximately equal length, about five feet long, to one end of which a small

flag could be attached by slipping the sleeve of the flag over the end of the pole. The other end was

intended to be attached to an axle of a bicycle, the pole running vertically upwards from that position.

The plaintiff's father attached that end to the rear axle of the plaintiff's bicycle so that the flag was about

five and a half feet from the ground. The two sections of the pole were attached by pushing the end of

one shaft into a socket in the other shaft as with two parts of a fishing rod so that they were held

together by friction.

On the day of the plaintiff's accident, which was 12 January 1987, he was attempting to move

his bicycle from the position where it was resting, with his brother's bicycles, under his house. It is not

at all clear how his accident happened. What does seem reasonably clear however is that the two

sections of the pole became detached and the detached end of the bottom section came into contact

with the plaintiff's eye thereby severely injuring it.

Two possible explanations were given for how the two sections of the pole became detached.

One was that the top became entangled in some part of the other bicycles which included the flag poles

on them. The other was that it came into contact with one of the overhead beams underneath that part

of the house where the accident occurred. The first of these is the way in which the plaintiff pleaded that

the accident occurred. However it is plain that he did not see what impeded the top and he said in

evidence that it could have been either of these. His Honour thought that the second was the most likely

explanation.

The plaintiff removed his bicycle from the position where it was stored with his brothers'

bicycles under his house, turned it around, mounted it and attempted to peddle it. While he was

attempting to do this and after it had moved only a very short distance his bicycle came to a halt. He

immediately partly turned around and saw the sections of the pole separated with the top section still in the air. The top of the bottom section, which had flexed backwards, then whipped forward suddenly

and struck his eye.

Experiments were done on a similar pole purchased by the plaintiff's father sometime after the

accident by Dr. Gilmore, an expert who gave evidence for the defendant and whose evidence was

generally accepted by the learned trial Judge. These showed that bending the pole, even to an angle

of 90° did not cause the sections to separate, even when they had not been fully attached. It required

force along the line of the pole to separate them. It could not therefore have been merely a bending

movement which separated the two sections of the pole; it must, as well, have been some linear force.

Dr. Gilmore said that the linear force required to separate the two sections was initially 5.4 kgs

decreasing to 3.6 kgs after the sections had been separated and rejoined a number of times and

thereafter remaining constant at 3.6 kgs. However in the absence of evidence of what difference in

tolerances there may have been between the fittings on the pole on which tests were done and those on

the pole involved in the accident or even of evidence on what variation there was in tolerances between

fittings on poles sold about that time this evidence is of little, if any relevance.

The learned trial Judge referred to the evidence of Dr. Coyle, an expert witness called by the

plaintiff, that the coupling between the two sections of the pole involved in the accident might not have

been a tight fit but his Honour "counterbalanced" that by noting the absence of evidence from the

plaintiff's father to that effect and by his assessment of the plaintiff's father as a safety conscious parent

who might be expected to have noticed such a defect. Consequently he rejected this possibility as one

not open to consideration. We do not think that that was a permissible view. Had the coupling been

an obviously loose fit when he first joined the two sections, the plaintiff's father might have been

expected to recall it and refer to it in his evidence. But the fit may have been less than "snug and tight",

the phrase used by Dr. Coyle, without being so obviously loose as to alert a careful but non-expert parent such as the plaintiff's father to the danger of separation in circumstances such as this. Moreover

the plaintiff had ridden his bicycle for some three weeks after the flag had been fitted to it before the

accident occurred. Its use over that period, involving as it may have contact with tree branches or other

stationary objects, could well have resulted in loosening of the fit. His Honour was therefore in our

opinion, wrong in rejecting the possibility that the fit between the two sections of the pole which caused

this accident was looser than that on the pole on which experiments were performed.

Because Dr. Gilmore started with the assumption that a linear force of 3.6 kgs was necessary

to separate the two sections of the pole involved in this accident and because, as he said, the pole was

of even diameter and without hooks or jagged edges, he concluded, in effect, that the pole could not

have separated upon making contact with either the other bicycles or an overhead beam. Yet the

learned trial Judge, as we have already mentioned, accepted that the accident occurred when the upper

end of the pole came into contact with an overhead beam.

What his Honour found impossible to accept was that the accident occurred because, upon

separation of the two sections of the pole, the top of the bottom section whipped back into his eye. He

reached this view because of an experiment which he did himself which he thought showed that the

bottom section of the pole did not have sufficient whippiness to do this. That conclusion was plainly

wrong as the respondent accepted.

Once it is accepted, as his Honour did, that the separation of the sections of the pole occurred

when the top of the top section came into contact with an overhead beam it follows that the coupling

between the two sections was sufficiently loose to permit that to occur. An accident of this kind, that

is one causing injury to a child in consequence of the sudden separation of the two sections of the pole,

was foreseeable and the means of preventing it easily and cheaply available. The pole could have been

sold in one section or in two sections secured by a coupling which would not permit separation in this way; for example a screw coupling or a bayonet attachment. The failure to sell it in one piece or to

secure it in some such way was a failure to take reasonable steps to avoid a foreseeable risk of injury

of this kind.

A consequence of the plaintiff's injury was that he was, in effect, one eyed. That will make him

more vulnerable than a two eyed man to injury in a number of ways. One of these was demonstrated

a year ago when, while riding his bicycle he came into collision with a following motor vehicle whilst

making a right hand turn. He said that he could not see the vehicle behind him when he looked back

over his right shoulder. This consequence of his injury will also limit the activities which he ought

prudently to pursue, including some kinds of work. His academic record indicates that he is likely to

be engaged in labouring or other unskilled employment. Some kinds of this employment involve greater

than normal risks of injury to an eye. There are therefore a number of fields of work which are either

closed to him, for example driving a truck or a bus or which, because of their increased risk of eye

injury, he will need to be vigilant in wearing safety glasses or refrain from engagement in work of that

kind.

These limitations upon the earning capacity of a man who is otherwise restricted to unskilled

work are in our view very serious ones. Moreover in this case they are limitations which will last for the

whole of the plaintiff's working life. In those circumstances, in our view, the amount of $15,000.00 was

a wholly inadequate allowance for the loss of earning capacity which these will cause having regard, as

well as to the matters we have mentioned, to the increased risk of total loss of earning capacity through

a further injury to his undamaged eye. We would substitute for the amount involved under this head of

damage the sum of $30,000.00.

In our view therefore the appeal should be allowed, the judgment below set aside and in lieu there should be judgment for the plaintiff in the sum of $92,550.00 with costs. Of that sum, the amounts of $3,026.30 and $500.00 are to be paid to the next friend. The balance is to be paid to the Public

Trustee of Queensland, and the Public Trustee is to hold that sum and the income thereof and apply it

in such manner as the Public Trustee shall think fit for the maintenance, education or otherwise of the

plaintiff until the plaintiff attains the age of eighteen years. The appellant should have his costs of this

appeal.

REASONS FOR JUDGMENT - B.W. AMBROSE J

Judgment delivered: 25th day of June 1996

I have had the advantage of reading the reasons for judgment of Pincus and Davies JJA which sufficiently set out the relevant facts. I agree with the conclusions they have reached and with the order they propose. I wish only to make some observations as to the foreseeability of an injury of the kind which befell the child in this case.

The design and construction of the flagpole involved was such that if the flag end of it was held while the bicycle was ridden forwards the pole would bend towards the rear of the bicycle before the top became detached from the bottom. That detachment would inevitably cause the top of the bottom part of the flag pole to whip forwards so that its end would suddenly be propelled towards the head of the child sitting on the seat of the bicycle at that time. In my view it was foreseeable that such a bending and detachment might occur. On the facts of this case the separation of the top from the bottom of the pole on the findings of the learned trial judge occurred when the top was held by or became entangled in some way with part of the house structure under which the plaintiff was riding his bicycle. It seems clear that it was the forward motion of the bicycle while the flag end of the flag pole attached to it was held firm which caused the separation of the parts of the flag pole which resulted in injury to the child's eye.

Precisely how or upon what the top section of the flag pole became caught as the child was riding his bicycle under the house seems to me of little importance. It obviously did become caught and as a result the top of the bottom part of it whipped forward striking the child's eye. The important question to be determined is whether the design and construction of the flag pole which permitted that result was unnecessarily dangerous.

Another obvious way such a separation might be occasioned as the bicycle was being ridden by a child would be for another child in mischievous fun to take hold of the flag end of the pole and hold it as the cycle was being ridden away. Such behaviour in the course of a number of children playing together while bicycles were being used would clearly be predictable - as predictable in my view as one child holding the seat of a bicycle as another attempted to ride it, a practice with which the plaintiff was obviously familiar.

Similarly, riding bicycles in circumstances in which the flag end of a flag pole might be caught and anchored by some overhead obstruction to be found in a garden environment or, as in the present case, beneath the floor of a house on stumps, was also predictable.

In my view, the flag pole sold by the respondent to the father of the appellant child was clearly to be used on a bicycle ridden by a child. The bottom end of the flag pole was designed to be firmly attached to the axle of the rear wheel. It is clear that if for any reason the top end of the flag pole became caught while a child was riding the bicycle, to which it was attached, upon separation of the top section of the pole, the top of the bottom section would be propelled towards the head of the child on the bicycle. Should the progress of the bicycle be restrained by the catching of the top end of the flag pole, the child riding the bicycle might be expected almost instinctively to look backwards towards where the flag pole was caught. The danger to the cyclist in those circumstances in my view is obvious to any person giving any thought to the happening of an event causing a separation of the sort that occurred in the circumstances found by the learned trial judge in the present case.

In my view, the manufacturer was negligent in producing such a device to be sold for use by children. That manufacturer was in Taiwan. The respondent had a section in its business operation which assessed the risk involved to persons using goods before it decided to put them on sale. Whether or not such an assessment was made in this case, or if so what conclusion was drawn, did not emerge in the evidence.

As retail seller of a flag pole to be attached to the bicycle of a small child, the respondent was under a duty to take reasonable care to consider its design and construction to ensure that it would be reasonably safe for children when a bicycle to which it was attached was being used in circumstances reasonably foreseeable.

If the characteristics of the flag pole in this case had been properly assessed and its deficiencies detected, it ought not in my view to have been sold without modification or warning. At the very least, a warning ought to have been given to persons purchasing the flag pole of the likely movement of the top of the bottom section of the pole towards the head of a child, should the top section be accidentally (or deliberately) detached as that child was riding the bicycle. Steps might then have been taken to ensure that the two sections of the pole could not separate once assembled - by the use of glue, screws, etc.

Even accepting the contention of the respondent that a flag pole of the sort in issue was more conveniently marketable should it be in parts rather than in an unbroken length, it is clear that it could have been so broken that the top of the lower part of the pole fixed to the rear axle of the bicycle, should the upper part become detached from it, would be nowhere near face level of a child sitting on the seat of the bicycle in its lowest position. I agree with Pincus and Davies JJA that alternate methods of fixing the upper to the lower section of the flag pole so as to prevent separation merely by the application of longitudinal force at the junction of the two sections were also clearly available. The design and construction of the flag pole sold for use by the plaintiff in the present case was unnecessarily dangerous and this was apparent upon reasonable examination by the respondent. The defect in design and construction led to a foreseeable risk of the kind of injury to a child riding a bicycle to which it was attached which the plaintiff suffered; it was a cause of that injury.

I would allow the appeal. I agree with the orders proposed by Pincus and Davies JJA.

REASONS FOR FURTHER ORDER OF THE COURT

Judgment delivered the 25th day of June 1996

Further Order delivered the 23rd day of July 1996

Judgment was delivered on 25 June 1996, allowing this appeal and making certain other orders.

It has been noticed that a slip was made as to the amount of the judgment. It is necessary to make the

following order:

It is ordered that the judgment delivered on 25 June 1996 be corrected by substituting

the sum of $101,596.30 for the sum of $92,550.00 mentioned therein.