Pozzebon v. Ajay Fibreglass Industries Pty Ltd
[2007] QDC 226
•1 October 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Pozzebon v Ajay Fibreglass Industries Pty Ltd [2007] QDC 226
PARTIES:
LEO POZZEBON
Plaintiff
AND
AJAY FIBREGLASS INDUSTRIES PTY LTD
Defendant
FILE NO/S:
BD300/07; Gympie D26/06
DIVISION:
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Gympie
DELIVERED ON:
1 October 2007
DELIVERED AT:
Brisbane
HEARING DATE:
16, 22 May 2007
JUDGE:
McGill DCJ
ORDER:
Judgment for the defendant with costs.
CATCHWORDS:
NEGLIGENCE – Breach of Duty – unloading water tank – whether system unsafe – whether defendant’s employer failed to take care – damages assessed.
Civil Liability Act 2003 s 15.
COUNSEL:
B. F. Charrington for the plaintiff
A. S. Kitchin for the defendant
SOLICITORS:
McNamara Garraway for the plaintiff
Carter Newell for the defendant
This is an action for damages for personal injuries. On 6 August 2004, a large rainwater tank was being unloaded from a truck on a property owned by the plaintiff near Gympie. It was being sold and delivered by the defendant to the plaintiff. As the tank came off the truck, it struck the plaintiff, causing an injury to his left ankle. Liability and quantum are both in issue, although to some extent the issues at the trial had been narrowed by agreement between the parties: the defendant had abandoned a plea based on an alleged exclusion clause in the contract for the sale of the tank, general damages in respect of the plaintiff’s injury were agreed at $5,000[1] and special damages were agreed at $1,873.15: p 2. There was unfortunately a substantial dispute as to how the accident came to happen.
[1]Assessed under the Civil Liability Regulation, on the basis of an ISV of 5 under Item 144: minor ankle injury.
The plaintiff at the time owned a property of about 55 acres near Gympie on which he ran some cattle: p 11. He ordered two 5,000-gallon water tanks from the defendant, a company which sells and delivers such tanks, for delivery to his farm. The tanks were to be placed near a shed, and he had prepared a pad[2] beside the shed as instructed. A delivery date was arranged by telephone, and he was told that he was needed on site to assist, and if possible to arrange for someone else to be there as well: p 12. The tanks came on a flatbed truck which arrived at the property in early afternoon; the two tanks were lying on their sides and were separately secured by two straps which went diagonally over each tank, tightened with ratchets. The tanks were roughly cylindrical, 3.75 metres in diameter, and 2.75 metres from the flat base to the top of the domed top: p 75. The defendant’s driver was alone in the truck; the plaintiff was alone at the property, an arrangement to have someone else there having fallen through: p 12.
[2]Made mostly of sand: p 33.
The plaintiff’s version
The plaintiff said that the driver told him that he needed his help, which involved standing at the rear of the truck to prevent the tanks from rolling back too far: p 14. Because the tank was on its side, obviously once it was unstrapped there was a risk of its rolling one way or the other depending on the slope of the truck. It could not roll forward because the other tank was in front of it, but there was no back on the truck and nothing else to stop it from rolling off the back of the truck, which was what the plaintiff was to do. The plaintiff said that, once the inlet hole on the first tank was lined up with the shed, planks were put down on the pad so the tank could land on the planks, which made it easier to get it into the final position before the planks were removed: p 14. Three planks were placed in a Y‑shape. The planks were put into position by the driver, and while that was occurring he had a look at the surface of the pad between the planks where the tank was going to land to make sure there were no sharp rocks there: p 15.
The plaintiff said he had asked the driver to check the pad because there were a few rocks on the surface (p 13), and the driver told him that the only problem was if there were sharp rocks just under the surface; when the tank hit the ground they could puncture the tank: p 14. The plaintiff said the driver did not think it (presumably the pad) was a worry, but he was still concerned because it was his tank. He found a few rocks in the search and removed them from the pad: p 15. He and the driver then went back to the truck, the driver hopped on and pushed the first tank off the truck so that it landed with its base on the planks on the pad. The tank was then manoeuvred into its final position and the planks were removed using a crowbar to lift the sides of the tank. The plaintiff said that there was no particular warning given by the driver when he pushed the first tank off the truck. The plaintiff was at the rear of the tray which was quite close to where the driver was and was able to see him clearly on that occasion when he made the final push: p 16.
The truck was then moved forward in order to line up the second tank with where it had to go: p 16. The plaintiff said that that tank was then manoeuvred to the edge of the tray in the same way as the first tank had been while he was at the back of the tray (p 16) and that the driver then positioned the planks for the second tank on the ground, during which time he checked the pad for rocks as he did with the first tank: p 17. While he was checking for rocks the driver climbed back on to the truck, but he had not realised the driver had departed, and the next thing that happened was that he was struck by the falling tank: p 17. He said it hit him on the head, then bounced off his shoulder and then knocked him to the ground landing with the rim of the tank on his ankle. He did not hear the driver call out before the tank fell.
The plaintiff said that if he had heard a warning he would have got himself out of the way quickly, and that in view of the speed with which the first tank had fallen if there had been a warning called just as the final push was given he would have had time to get out of the way: p 18. He said he was not concerned going on to the pad to clear the rocks because the tank was sitting on its side on the side of the truck and the angle of the truck was slightly away from the pad. After the accident the plaintiff complained to the driver that he had not been warned and he said the driver replied “I thought you were around the other side”.
Under cross‑examination there was some clarification of what the plaintiff said had occurred. He agreed that after the planks had been removed from underneath the first tank they were then put in the same Y‑shape in the position where the second tank was to go: p 37. The truck was then moved forward so that the second tank could be rotated on the back of the truck so the inlet would be at the top, so that when it was unloaded the inlet would be close to the shed. He admitted that when the second tank was being unstrapped he was standing on the driver’s side of the truck close to the driver near the rear wheels, and that the driver had told him something to the effect:
“Same routine again. Only difference is this time it’s the front of the truck. You stand there near the drive wheels. You’re my handbrake. You stop the tank rolling back too far.”
He said that the second tank was then manoeuvred by the driver until the base was about a couple of feet beyond the edge of the truck,[3] and the driver then adjusted the position of the three pieces of timber into a final position before the tank was actually unloaded: p 40. He accepted that at that point the tank was starting to go flat where it crossed the edge of the tray, and that it was a fairly imposing thing to look at from the ground if looking up at it: p 41. It was at this time that he gave the pad a final inspection for any sign of sharp rocks, and he was still doing that when the driver had, without his realising it, climbed back on the truck and pushed the tank off so that it struck him: p 40.
[3]See also p 30
The plaintiff’s version of the accident was further clarified by a statutory declaration he made on 4 January 2006, put in evidence by the defendant: Exhibit 15. Paragraph 11 said that when the first tank was unloaded, the driver had asked the plaintiff to stand at the rear of the truck to prevent the tanks from rolling off the back. The driver manoeuvred the first tank into position and then got off the truck and placed the planks on the pad for the tank to land on. During this time the plaintiff walked to the pad and he and the driver checked the pad for any sharp rocks or other problems. The driver then got back on the truck and he returned to his position at the rear of the truck, and the driver tipped the first tank off the truck.
The statement continued in para 11(g):
“[The driver] then manoeuvred the second tank into position. He then got off the truck and again placed the two planks in position. After [the driver] got off the truck, I also walked to the pad from the back of the truck, in accordance with the procedure adopted for the first tank, and began checking for sharp rocks or other problems with the pad.
(h) Without warning, [the driver] tipped the tank off the truck and it collided with me.
(i) I did not see [the driver] get back on the truck and was not aware that he was not standing on the pad until the tank collided with me.”
It was submitted that this was inconsistent with his oral evidence because he did not refer to the fact that the truck was moved forwards between the unloading of the first tank and the unloading of the second tank, which the plaintiff had said in evidence had occurred. I do not think that is of particular significance, because the moving of the truck at this point is not of any importance as part of the plaintiff’s account of how the accident happened, and the statement does not contain anything which says or implies that the truck was not moved at this point. But I think there is some inconsistency between the reference in the statement to the driver again placing the planks[4] in position after he had manoeuvred the second tank into position and the plaintiff’s acceptance during cross‑examination that the planks were put into the Y‑shape initially immediately after they were removed from under the first tank. The plaintiff’s evidence at the trial was that the three planks were positioned at this time, and that is I think not easy to reconcile with the terms of paragraph 11(g) of Exhibit 15.
[4]The reference is two rather than three planks is not of itself any great significance; the plaintiff had no reason to be concerned about the number of the planks.
In any case, the exhibit makes it clear that the method of unloading adopted by the driver was to position the tank to some extent on the back of the truck, then go on to the pad to do something with the planks, and then get back on the truck before pushing the tank off on to the planks. On the first occasion the plaintiff had returned to near the back of the truck out of the way of the tank before the tank was pushed off; on the second occasion the driver had pushed the tank off before the plaintiff had realised that he was about to do so and while the plaintiff was still examining the pad for rocks.
The defendant’s version
The version given by the defendant’s driver about these matters was significantly different. The driver said that he positioned the truck next to the pad and checked where the first tank was to go, and put his planks down in the position where the tank was to go: p 79. In doing this he checked with the plaintiff just where the tank was to go: p 80. He gave the instructions to the plaintiff which the plaintiff accepted had been given (p 81), then undid the two ratchets and removed the straps on the tank: p 82. He then twisted the tank and began to push it first one side then the other, initially from the ground and then when there was room from the bank of the truck: p 83. Once it reached about a metre protruding beyond the edge of the truck the tank started to sag as the side flattened against the edge, so that the top of the tank moved forward towards the pad, and the tank fell forward on to the pad.[5]
[5]I expect this was because, as the top moved forward this moved the centre of gravity forward, and eventually over the edge of the truck.
The driver said that each time he pushed on the rear edge of the tank the plaintiff was in view, but he could not see the plaintiff when he was pushing on the other side because the tank was in the way: p 84. He said when it started to sag he just squared it up to make sure it would fall off square. Sometimes he gave it a further push so that it would fall off, sometimes it just went over on its own. He said that letting it go on its own meant that it landed further on the pad away from the truck, no doubt because, as the tank rotated around the edge of the truck it reached a point where the pressure on the edge was reduced and the part that has flattened sprang back, pushing the tank away from the edge of the truck in the process.
Significantly, he said that once he started to push the tank off the truck he did not stop until the tank was on the ground; he rejected the notion that at some stage in this process he stopped pushing, went on to the pad and adjusted the position of the planks before getting on to the truck and finally pushing the tank off. He said that the last time he was on the right‑hand side of the tank just before he gave it the final push the plaintiff was standing where he had asked the plaintiff to stand near the back of the truck, out of the way of the tank.
After the first tank was in its proper position he removed the pieces of wood with the assistance of a crowbar and put them in position for the second tank: p 85. Again, he checked with the plaintiff where the second tank was to be positioned relative to the first: p 86. He then moved the truck forward so that when the second tank was rolled on the truck so as to get the water inlet to the top it could then be pushed off on to the pieces of timber. He then went back to the ratchet on the strap on the driver’s side, checked that the planks were in the correct position, and told the plaintiff that the same process would be followed again, he was to be the handbrake, and asked him to stand beside the driving wheel and said he would be rolling the tank back a little further: p 86.
He then released the straps and rolled the tank back into the correct position, and again began to twist the tank pushing first one side and then the other so as to get it over the side of the truck, initially from the ground and then from the tray: p 87. He said the same thing happened, when it was protruding about a metre over the edge of the tray it started to sag, he was standing at the side closest to the rear at the time, it was slightly off square and he went to the centre of the tank and gave it a nudge to square it up (p 87) and it just sagged further and rolled off the truck: p 88. He said that just before he moved to the centre when he had been at the side of the tank closer to the rear the plaintiff was still standing by the driving wheel of the truck, where he had asked him to stand. The plaintiff had not given any indication that he was going to move or that he was not going to stay there.
He said “here it goes” as the tank was actually falling off, but he said that if the plaintiff had been on the other side of the tank, that is on the pad, he would not have heard that said. As the tank went over he heard a loud cry from the plaintiff, he jumped off the truck went around the tank and found the plaintiff underneath it with the tank on his ankle: p 89. He denied that he had adjusted the position of the planks between the time when he unstrapped the tank and the time when it went off the side of the truck, or that he had moved the tank slightly off the truck and then gone on to the pad himself for any purpose. On his account the only way the accident could have happened is that when he moved to the centre of the tank to square it up just before it fell off the plaintiff must have rushed on to the pad for some reason virtually as the tank was starting to topple over. He said that when he found the plaintiff trapped afterwards he asked him what he was doing there and the plaintiff replied, “I thought I saw a stone” and “it was a stupid thing to do,” with which the driver agreed.[6]
[6]P 89: the transcript at line 28 reads “I thought I saw it staying” but what the witness actually said was “I thought I saw a stone.” This is essentially what was put in cross‑examination at p 39 and denied.
Analysis
It will be apparent that the resolution of this conflict as to just what occurred is critical to the resolution of the question of liability. Both the driver and the plaintiff gave their evidence in a clear and forthright manner; both were quite definite in asserting their respective versions and in rejecting the alternatives. There was nothing in particular about the way the evidence was given, or the demeanour of the witnesses, which suggested that one was more reliable than the other. There were some submissions made in relation to the inherently unlikelihood of the accident having happened in one way or the other, but these need to be handled with a certain amount of care. The fact that it is logical or sensible to do things in a particular way does not necessarily mean that they were done in that way, either generally or on a particular occasion. In addition, the fact that a particular practice is generally followed does not necessarily mean that it was followed on a particular occasion; people make mistakes, and sometimes forget to do things which they do regularly in the usual order.
It was submitted that the driver would not have left the tank partly off the side of the truck and unsecured while he went down to place or adjust the pieces of timber on the pad, but the truck was obviously fairly level, and as long as the tank was well short of the point of where it would just continue off the edge of the truck there would have been no great danger in leaving it sit there if at that point he realised that the planks had not been placed or had not been placed correctly. If he had moved on to the pad the plaintiff could easily have thought that if he was there it was safe enough to be there, and if he was then checking the pad carefully for stones he might have failed to notice that the driver had climbed back on the truck, whereas the driver might have assumed that the plaintiff had realised that he was leaving and had followed him off the pad.
One would not expect someone to move under a tank which someone else was in the process of pushing off the truck, and was falling or about to fall. On the other hand, I suppose it is possible that the plaintiff might have thought while the tank was being manoeuvred over the edge of the truck that he saw something which ought to be removed from the pad, and he might have thought that he just had time to do this and get out of the way if he moved quickly enough, but his expectation of the time required, or his expectation of the time available, proved to be wrong. The driver’s description of the unloading process suggested that it actually took the tank a few seconds to topple over the edge of the truck and fall on to the pad, and this might have led the plaintiff to think that he could get something off the pad quickly enough. No doubt if he thought that there was on the pad something which was going to put a leak in the base of the tank he might have thought it was a case of now or never.
On the whole the defendant’s version of how tanks are unloaded sounds to have been generally correct. If the plaintiff needed to be positioned beside the tank on the truck in order to ensure that it did not roll off the back, that was necessary until the point where the tank was so far pushed off the side that if it was going to go anywhere it was going to go over the side. I think it unlikely that the driver would make a particular point of getting the plaintiff to stand there to prevent this from occurring, as the plaintiff accepted he had asked him to do, and then acquiesce in his walking away from the tank on to the pad at a time when the tank was unsecured and essentially just sitting on the back of the truck. Yet on the plaintiff’s version the driver did this not once (which might have been just inadvertence), but twice.
There is also the consideration that the version of the unloading process given by the driver is logical and inherently plausible. On his account the planks were positioned by reference to where the tank was to end up, which is what one would expect, with the tank on the truck being then lined up by reference to the target which the planks made so that the tank would be pushed off in the right position. One would not expect that once the process of moving the tank off the back of the truck had started the planks which were the target would then be adjusted to where the tank was,[7] rather than the other way around, unless perhaps the truck had been unskilfully positioned relative to the location of the planks. The defendant’s driver said that he had had considerable experience in unloading these tanks: p 76. He might occasionally make a mistake of that nature, but I think it unlikely that he would make it twice. That applies particularly on the second occasion: it would have been much easier on the second occasion to have rolled the tank one way or the other along the back of the truck to line it up with the planks, rather than to have put the tank in a particular position on the back of the truck, and then adjusted the planks to line up with the tank.
[7]As claimed at p 105.
There is also the consideration that the plaintiff’s account has the driver climbing on to the back of the truck twice for each tank that was unloaded, once to start the manoeuvre, after which on the plaintiff’s account he got off the truck[8] and adjusted the position of the planks before getting back on the truck to push the tank off. Climbing on to the back of a tray truck is not such a pleasant activity that a driver would routinely do it twice for each tank unloaded when the job could easily be arranged so that he would only have to do it once. There is also the consideration that, once the tank was unstrapped and to some extent moved over the edge of the truck, even if well short to the usual tipping point, there would be some risk of something going wrong and the tank coming off the truck unexpectedly, so I think it unlikely that the driver would routinely go on to the pad underneath the tank to do something at that point;[9] I think it much more likely that the work would be arranged so that anything that had to be done on the pad was done and finished before the tank was unstrapped.
[8]The plaintiff said specifically that the driver got off the truck, both in his oral evidence and in the statutory declaration.
[9]The plaintiff accepted that each time when the driver returned to the truck it took only a small push for the tank to move off the truck: p 52.
In view of these considerations, I readily accept that defendant driver’s account of the way in which tanks are ordinarily unloaded as an account of what ordinarily happens, or usually happens. It might of course have been different on this particular occasion, for all sorts of reasons, but the plaintiff’s account has it happening in a different way twice, for each of the tanks that was unloaded. That I find difficult to accept. Something out of the ordinary might be done occasionally, but for it to be done out of the ordinary twice in succession on this particular occasion is an unlikely coincidence.
The only aspect of the driver’s evidence which gave me any doubt about his reliability was his quite definite statement that if the plaintiff had been on the other side of the tank, that is on the pad, he would not have heard what he said was said when the tank started to tip.[10] There was no suggestion from anyone that there was any other noise about, and the driver said that the truck motor had been turned off, so it ought to have been fairly quiet, and I would have expected someone’s voice to have carried around to the other side of the tank, and to be audible to someone standing not far from the side of the truck even if the tank was in the way, unless the driver was talking quite softly. This is only an expression of opinion by the driver, and may not be right, or may involve some element of reconstruction: if things happened as he described and he knows he did say this and he knows the plaintiff was then hit by the tank, he may have concluded that this was because the plaintiff had not heard what he had said, and hence had not been able to hear. But perhaps the simplest explanation is just that he did say it relatively softly, that is, he did not particularly call out.
[10]Prior p 88, p 99.
In all the circumstances, and bearing in mind all of the factors which I have discussed, on the balance of probabilities I find that the version of the defendant’s driver is more likely to be correct. This is notwithstanding that on his account the plaintiff must have done something which, looked at with the benefit of hindsight, seems a very strange thing to do. I therefore find that the events leading up to the accident were as described by the defendant’s driver. Liability has to be considered on the basis that that is what occurred.
Conclusion as to liability
It follows that I am not prepared to find as alleged in paragraph 12 of the statement of claim that at the time the driver climbed on to the tray of the truck after the successful unloading of the first tank the plaintiff was standing on the ground on the pad where the second tank was to be positioned, nor do I find that the plaintiff had adopted that position in accordance with any directions on the part of the defendant’s driver. I also do not find that the second tank was unloaded suddenly, nor do I find that the plaintiff had no warning of the unloading process. Although it might be possible to accept the driver’s evidence as to the method of unloading without also accepting his evidence as to the plaintiff’s position at the time when he was able to see him during the unloading of the second tank, there is no good reason why, having preferred the driver’s account generally, I should not also accept his evidence in relation to this. I therefore find that that the time when the driver was in a position to see the plaintiff while he was in the process of moving the second tank over the edge of the truck, the plaintiff was standing where he had been instructed to stand, near the rear wheel of the truck, clear of where the tank was to fall. For the moment I will leave to one side the question of whether there was also a verbal warning to the plaintiff prior to second tank being unloaded.
With regard to the various allegations in paragraph 15, I find that subparagraphs (a), (b), (c) of that paragraph are proved. However, I am not prepared to find that any of the other subparagraphs of paragraph 15 have been proved. No deficiency in the training or instruction of the driver has been shown, and I am not persuaded that there was any failure to provide appropriate or adequate equipment, that is to say I am not persuaded that it was negligent not to have some other equipment available. It seems to me that in principle there is no reason why the method being adopted on this occasion could not have been safely used, as it was on all the other occasions (pp 76, 91), and I am not persuaded that reasonable care required the use of a crane of some kind to unload the tank in order to avoid the risk that a person might be injured as a result of moving underneath the tank at a point when it must have been obvious that it was in the process of being unloaded.
I am not persuaded that there was any failure on the part of the driver to keep a proper lookout. I accept that on the last occasion on which he could have seen the plaintiff, the plaintiff was in that position (p 88), and then the tank was virtually at the stage of coming off and just required a relatively minor adjustment, which had to be applied in a position from which it was not physically possible to see the plaintiff. To say that the driver should have looked at the plaintiff again before taking that further step would lead logically to the conclusion that the driver should never have taken the step at all, because moving back to where he could see the plaintiff would put him away from the position (at the top of the dome) where he was to make the adjustment to the position of the tank before it fell off. In circumstances where he knew that the plaintiff had already seen one tank unloaded in this fashion, and where it was obvious (if nothing else, from the location of the three pieces of timber on the ground which were the target) where the tank was expected to end up as a result of the unloading process, in my opinion reasonable care did not require the driver to keep the plaintiff under direct observation up to the point where the tank actually toppled off the truck.
It is I suppose foreseeable that someone might for some reason move under the tank even at a late stage, but the risk of someone doing so is very low, and it is difficult to see that a warning at that stage would have added anything very much to what the person would have already been aware of, namely that the tank was about to fall. There is also the consideration that once the tank is far enough over the side of the truck, it will in time topple over on its own. Once the point of no return has been reached, there is not much that anyone could have done to prevent someone from attempting to dash under the tank for some reason if that person was determined to do so. I am not persuaded that in this case the point of no return was reached only after the driver had lost sight of the plaintiff for the last time before the tank fell off the truck.
Essentially for the same reasons, I am not persuaded that there was negligence in failing to have a more complicated system, involving an additional employee to assist the driver in unloading the tank without involving the plaintiff at all. Although a person in the position of the plaintiff was required by the system in use to play some part in the unloading of the tank using this method, it was a minor part, and playing that part did not in itself cause any injury to the plaintiff. The injury was suffered, on the view of the facts that I have taken, by the plaintiff’s departing from what he was supposed to do under that system. Although it may be foreseeable that a person in the position of the plaintiff who is involved in the system of unloading the truck might depart from the instructions in a way which involved that person placing himself in what must have been an obviously dangerous position, I do not consider that a failure to go to the not insignificant expense of providing an additional employee to avoid that risk amounted to negligence on the part of the defendant, bearing in mind that the risk was very unlikely to materialise, given the obviousness of the danger of placing oneself under a tank which is in the process of being unloaded from a truck.
The only change which has been made to the unloading system since the incident occurred has been that now four “witches’ hats” are put in position to indicate the “exclusion zone”, that is to say the area where the tank is expected to fall: pp 91-2. This of course provides only a visual warning of the area that the person should stay out of, but in the present circumstances the area where the tank was expected to fall would have been obvious to the plaintiff. He had just told the driver where he wanted the tank, and he had seen the driver position the three pieces of wood which also amounted to a visual warning of where the tank was expected to end up, and in that way for practical purposes achieved the same thing as four plastic witches’ hats. It may be that circumstances could arise where reasonable care would require the provision of a visible reminder of an exclusion zone in the form of the plastic witches’ hats, possibly in circumstances where there was some foreseeable risk of some other person coming upon the scene who might not realise what was going on, but I am not persuaded that there was any negligence in failing to provide them on this occasion.
I am not persuaded that there was any negligence in failing to provide any express warning that the plaintiff should not be underneath the tank when it came off the truck; the danger involved in that was obvious. I find that there had been adequate instruction as to how the tanks might be safely unloaded from the tray of the truck; the accident occurred because the plaintiff did not follow that instruction, by moving away from the position of safety in a way which was not required by any instruction given by the driver.
That leaves the question of whether there was negligence in failing to provide a warning, or perhaps better warning, of the fact that the tank was actually about to fall. The driver because of his experience would have been in a better position to know when the tank was on its way off the truck than was the plaintiff, though I suspect that the time difference between the point when it would have been obvious to the driver and the point when it would have been obvious to someone in the position of the plaintiff, who was actually paying attention to what was happening with the tank, may well have been quite short. It is apparent from the evidence of the driver that anything he said at this point was not intended to be a warning directed to any person who was in a place of danger, that is to say, in fact standing in the area where the tank was expected to land. This follows from his evidence that anything he said would have been inaudible in the position where the plaintiff was under the tank at the time.
The driver was of course on the opposite side of the tank to the area where it was expected to land at the time when he gave it its final push, and presumably therefore on the opposite side to anyone who might in fact be in a place of danger. There was no real need to give a warning to somebody who is in a place of safety; a warning is only relevant in those circumstances if it is going to be audible to a person who is on the other side of the tank. Any warning to be meaningful in those circumstances must be loud enough so that it would be heard on the other side of the tank. For practical purposes, the driver was not intending to give a warning to anyone who was in fact in that position.
This was one of the matters relied on by the plaintiff as showing negligence even on the defendant’s version of events. However, I am not persuaded that the defendant’s driver was negligent on this basis. In circumstances where he knew that the plaintiff had just seen another tank unloaded, and where the plaintiff had been positioned in a place of safety when he last saw the plaintiff, and where what he was doing was something which posed an obvious danger to anyone who moved into the position where the tank was expected to fall, and where by that stage it must have been apparent to a person in the position of the plaintiff that the tank, if not actually in the process of falling, was approaching that point, and that the driver was in the process of pushing it off the truck, I am not persuaded that there was any failure to take reasonable care in not giving a warning to any hypothetical person standing on the other side of the tank in the position where that person might be injured as the tank came off the truck. The person in the position of the driver simply had no reason to think that a warning to someone in that position at that time was necessary.
In my opinion, the risk of being injured by the tank as it came off the truck was, once the tank was partially unloaded from the truck, an obvious risk to a person in the position of the plaintiff for the purposes of s 13 of the Civil Liability Act. The plaintiff has not provided that he was at the time not aware of the risk. Indeed, at p 52 of the plaintiff’s cross‑examination he effectively admitted that he was aware of the risk at the time. Accordingly there was no duty on the defendant at this stage to warn the plaintiff of this risk: s 15.
There is the further consideration that even if there was a negligent failure to give a warning at that point, I would not be prepared to find that this was a cause of the plaintiff’s injury. On the driver’s account it must have been obvious to the plaintiff that the tank was about to fall. The driver said that the plaintiff said afterwards “I thought I saw a stone” and “it was a stupid thing to do”. Having otherwise accepted the evidence of the driver, there is no good reason not also to accept this evidence. In the light of that, I find that what happened was that the plaintiff, knowing that the tank was about to come off the truck, decided to risk going himself into the area where the tank was about to fall because of the risk that it might be punctured if it did so. I am not persuaded that any warning given by the defendant at this point would have told the plaintiff anything that was not already obvious to the plaintiff, namely that the tank was about to fall, or that any such warning if given would have deterred the plaintiff from doing what he did. Accordingly, the failure to give the warning was not a cause of the plaintiff’s injury.
Accordingly, I am not prepared to find there was negligence on any basis on the part of the defendant or for which the defendant was responsible. The claim is pleaded in the alternative on the basis of breach of a term of the contract, that the delivery of the tanks would occur with due care and skill. For the same reasons, I am not persuaded that there has been shown to have been any breach of that term. Accordingly, the plaintiff’s claim fails and there must be judgment for the defendant.
In these circumstances it is unnecessary for me to deal with the defences, though it will be apparent from my reasons that in my opinion the plaintiff’s injury was caused by his failure to take a reasonable care for his own safety, in moving into a position where the tank was going to be when it was unloaded from the truck at a point when it must have been obvious that the tank was either actually coming off the truck or about to do so. It is unnecessary for me to say anything further in relation to any of the defences raised. I should, however, on a precautionary basis, deal with the issues litigated in relation to quantum.
Quantum
The plaintiff suffered a fracture of the left ankle in the accident. He was at the time working in a bottle shop at a shopping centre,[11] and returned to that work after two weeks off, although he did not feel up to returning to work at that stage; he was working as a “permanent casual” and needed the money: p 21.[12] He said his employer was understanding but he found it very hard doing the job at the time. He finds it painful just standing on the ankle, and having to walk crouch and lift makes things worse. The problems have improved to some extent, but they are continuing. In an attempt to improve his situation, he reduced his shifts so that he was working for only three days a week instead of five days a week. This gave him a four‑day break between periods of work during which he was able to recuperate, which he found helpful: p 22.
[11]Not always the same shop; his employer owns three and he works at all of them: pp 42-3.
[12]The defendant’s expert, Dr Morris, thought that the injury would have required at least six weeks to two months off work: Exhibit 14.
The plaintiff was seen by an orthopaedic surgeon, Dr Searle, on 17 September 2005, a little over one year after the accident, for the purposes of a report: Exhibit 1. That revealed that after the accident the ankle became very swollen. The plaintiff was driven by his partner who was a nurse to the Gympie hospital where an x‑ray was taken and the following day he went to a GP who applied a short leg plaster which remained on for two weeks and was replaced by a supporting bandage. For a time he took analgesics and anti‑inflammatories. On 7 March 2005 there was an arthroscopy of the ankle during which a loose body was removed but this produced little improvement in his symptoms. He was treating them with Panadol from time to time, and the use of a heat pack. He had constant pain in the ankle aggravated by standing at work, walking on uneven surfaces, kneeling or squatting or going up and down stairs. The ankle swells a lot and at times gives way and he has fallen because of this. When the pain gets bad it seems to spread up the leg. Motion in the ankle was limited, particularly dorsi‑flexion. The doctor had reports of various earlier investigations, including of the arthroscopy which revealed a small loose body and surrounding synovitis both of which were removed.
Dr Searle was of the opinion that the injury had caused a severe sprain of the left ankle with avulsion of a small body fragment which required surgical removal, and there had been incomplete recovery which had led to ongoing symptoms which were permanent and caused a moderate degree of disability in relation to the function of the left lower limb. He was permanently unfit for activities which required him to be on his feet all the time, to go up or down stairs or slopes or steps a lot, to kneel or squat, to carry weights or to have unusual agility. He thought the work as a bottle shop attendant was not really suitable. He did not expect any significant change in the future. He assessed whole person impairment under AMA 5 at 4%. He noted that the plaintiff did not seem to be exaggerating or overreacting.
Dr Searle saw the plaintiff again on 25 November 2006 for the purposes of an updated report: Exhibit 2. He was still suffering constant pain in the ankle aggravated by standing for a time so that after a few hours of work he had to take all his weight on his right foot. It was also aggravated by kneeling, squatting or going up or down stairs, and at times gives way although he had reduced this by wearing lace‑up football boots, when he was not at work. The ankle was slightly swollen at the end of each day. Even touching the ankle aggravated the discomfort. On examination dorsi‑flexion was still quite limited, but the other movements had improved although they were painful at the extremes of range. The ankle was quite tender in parts. There were no abnormal neurological or vascular signs, he appeared to walk without a limp but this was early in the morning when the ankle was not too bad. Essentially he confirmed his earlier opinion although he thought that the effect of the improvement in the movement meant that the whole person impairment had come down to 3%.
Dr Searle in cross‑examination accepted that the fact that the plaintiff was continuing to work in the bottle shop meant that he could cope in that work, so that he might be expected to be able to continue with that work in the future unless he developed some degenerative changes which he described as a possibility: p 67.[13] He said degeneration in the ankle could occur spontaneously, but it was more likely if there had been an injury and therefore there was a higher risk of degeneration in his case. That is an obvious enough proposition and I do not think that the fact that it was not mentioned in the report is of any significance. Although the reports indicated that the condition was expected to remain the same, Exhibit 2 reveals some improvement from Exhibit 1, and I would not read that as a dogmatic assertion that there will definitely be no change either way in the plaintiff’s condition for the rest of his life. At p 68 he conceded that giving up work on the hobby farm would probably help him to increase his hours in the bottle shop by an equivalent amount to the time he spent working on the farm.[14] That did not necessarily mean, however, that he could directly swap the same number of hours on the farm for the same number of hours in the bottle shop: p 70.
[13]Later he noted this was more possible than probable: p 70.
[14]See also p 69.
The plaintiff was seen by Dr Morris, an orthopaedic surgeon, on 13 December 2005 at the request of the defendant for the purposes of a report: Exhibit 14. Dr Morris did not note the symptoms as constant pain, but rather pain when standing for any length of time, worse the longer he stood. He said there was pain in the ankle if he walked long distances and he found it difficult to crouch and difficult to go up and down stairs. That was different from the plaintiff’s account to me, and the accounts recorded by the other witnesses, of constant pain in the ankle made worse by various things, and I think it unlikely that the plaintiff would have said something different to Dr Morris.
Dr Morris said the plaintiff had told him that the reduction in working hours was not based on medical advice and was based on lifestyle. The plaintiff denied that he had said this to Dr Morris. Dr Morris appeared to accept that he may have misunderstood the plaintiff: p 116. Dr Morris also thought that the plaintiff could do more work if he were able to work shorter shifts. However, if the plaintiff was feeling less pain as a result of working three days on and four days off then he could not really say from a medical perspective that was unreasonable: p 117. He said there were working restrictions in the future, particularly in jobs involving climbing ladders, standing for long hours and kneeling. Dr Morris also found a whole person impairment of 3% under the AMA guide. He explained that impairment has nothing to do with the symptoms suffered, because the guide is concerned with the measure of impairment, whereas pain is regarded as an aspect of the disability resulting from or connected with the impairment: p 114.
The plaintiff was seen on 11 August 2005 by an occupational therapist, Mr Ng, for the purposes of a report: Exhibit 3. Mr Ng was of the opinion that redeployment of the plaintiff to an occupation without a high requirement for standing and lifting would be prudent management of his condition. He noted that his work history was predominantly in physically demanding, often heavy occupations which he would not now be able to undertake. He would be capable of light work such as service station attendant, sales attendant in a hardware store, courier driver or gatekeeper,[15] but he has no particular experience in these areas and these positions usually involve employment in small businesses where employers were reluctant to take on employees who had pre‑existing injuries. He also noted a lack of experience in working in an office environment.
[15]Under cross‑examination he conceded that the sort of earnings which might be achieved in those positions would be in the same general vicinity as $525 net per week: p 60.
Mr Ng thought that he would be significantly more vulnerable in the open labour market than he was pre‑accident and his employment outlook was guarded should his current employment circumstances change. He conceded that the plaintiff’s injury was not obvious, and the plaintiff does not ordinarily walk with a limp: p 61. If there was some physical testing or screening prior to employment then the difficulty may show up, and such screening or testing is becoming more common to make sure that employees are physically capable of a position. He also thought that the plaintiff was in need of four hours assistance per week with domestic chores. Dr Searle who had read this report agreed with this assessment: Exhibit 1. This is not sufficient to justify a claim for gratuitous care which would satisfy the threshold in s 59 of the Civil Liability Act, and it was not suggested that any services had been provided commercially, but this gives some indication of an aspect of the disabling effect of the plaintiff’s injuries.
The plaintiff was seen by another occupational therapist, Mr Hoey, on 31 October 2006 for the purposes of an updated report: Exhibit 4. He was of the opinion that the plaintiff’s tolerance for long periods of standing or walking was decreased, there were restrictions in traversing stairs, slopes or uneven ground, he was unfit for heavy or repetitive lifting and there were restrictions for sustained or repetitive crouching. He was now capable of occupations in the sedentary to light range only. Bottle shop attendant was classified as a heavy occupation, and was therefore not seen as within his capacity. He was no longer fit for his previous labouring work. He felt the plaintiff would be likely to encounter difficulty in obtaining employment because of his occupational restrictions and history of a compensation claim. He was of the opinion that the plaintiff was significantly more vulnerable in the open labour market than he previously was and his employment outlook was guarded.
Mr Hoey said that in his experience employers will ask straight out about previous injuries or compensation claims: p 97. This applies particularly with small to medium sized employers.
There was little conflict really in the medical evidence, the main difference being that Dr Morris’ opinion as to the plaintiff’s capacity for work was more optimistic than that of the other experts. That may have been because Dr Morris did not appreciate that the plaintiff had pain all the time which was aggravated by various things, rather than that he suffered pain if those various aggravating activities were undertaken to a sufficient extent. To the extent that there is any conflict, because of this consideration I prefer the evidence of Dr Searle and the occupational therapists.
The plaintiff was born in June 1964 and is now 43: p 9. He was educated to year 10, and soon after began a series of labouring jobs in the building industry: p 10. He then worked as a packer for three years before starting work at a bottle shop around 2000: p 19. His recreational interests included soccer and riding motorbikes: p 10. He preferred working in the bottle shop to labouring work, although the money was not as good: p 19. He worked regular shifts, four and a half days a week, about 38 hours: p 20. He was at the time of the accident earning about $530 net per week: p 20. After he reduced his hours of work, this dropped to about $430: p 22. he was still in that position at the time of the trial. He has sold the farm property; it was not making money, and he was finding it difficult to walk on slopes or uneven ground, which made any maintenance work on the farm too unpleasant: p 25. He takes some painkillers, at a cost of about $12 a year.
General damages were agreed in the sum of $5,000, on the basis of an ISV of 5: p 2. With regard to past economic loss, I accept that as a result of the injury it has become more difficult for the plaintiff to cope with his existing work, and indeed that he is barely coping with it. I accept that his decision to reduce his working hours was taken in order to assist him to cope with his injury, and therefore the consequent loss of income was caused by the injury. It was common ground that this had the effect of reducing the plaintiff’s income during the period prior to the trial by $9,225. The proposition that the plaintiff’s loss could have been avoided or reduced by working the same number of hours spread over more days, with shorter shifts, is I think strictly speaking an argument that there has been a failure on the part of the plaintiff to mitigate his loss in this way. This was relied on in paragraph 16(b)(iii) of the amended defence, but the defendant has failed to prove that such a course was open to the plaintiff. It has not been shown that his employer would be content for his business to be operated on the basis of the plaintiff’s working whatever shifts happened to suit him.
I also reject the submission that the hours worked at the bottle shop were reduced in order to further his farming hobby; indeed, I find that as a result of the injury the plaintiff gave up the hobby farm and sold it because he was also unable to cope with such work (which on the evidence was not very much) that that hobby farm imposed. That in itself was not productive of economic loss; it has not been shown that the hobby farm either made a profit or would have made a profit if the plaintiff had not had to sell it.
The defendant submitted that this amount should be reduced to take account of the costs saved in not having to drive to and from work on the day when the plaintiff was no longer working, relying on Henderson v Dalrymple Bay Coal Terminal [2005] QSC 124. It is sufficient to say in relation to this that the defendant has failed to so prove what amount has been saved in this way, and therefore it is not appropriate to make any deduction on this basis. Past economic loss is therefore $9,225. Pursuant to s 60(3) of the Civil Liability Act interest on this should be allowed at the rate of 2.9% per annum. In addition, there should be the conventional allowance for loss of past superannuation contribution of 9% of the amount of past economic loss, in the amount of $830.25.
With regard to future economic loss, the plaintiff sought two components, the current loss based on the reduction in hours through to age 65, and in addition a global award to compensate him for disadvantage in the open labour market and the loss of opportunity to return to higher paid work such as labouring. There are I think some difficulties with this approach, however; it is by no means clear that the plaintiff would but for this incident have continued to work in this particular job until age 65. He might well have done so, but on the other hand he might have decided to leave this job for something else, or alternatively his employment may have been terminated by his employer at some stage for some reason or other. There was no reason to think the job was particularly secure, although the fact that the plaintiff has been working in it for some time suggests that there would be reasonable prospects of its continuing, at least for some time, had the accident not intervened.
In circumstances where he is struggling to continue the current employment, I also do not think it is appropriate to proceed on the assumption (even as a component of damages) that the plaintiff’s current employment will probably continue until age 65. It might continue that long, and may well continue for part of that time, but there is at least some risk of deterioration, and the plaintiff’s ability to tolerate the discomfort of his current employment may well diminish over time. In addition, the job may just come to an end for some other reason. It is probably right to say that, unless an opportunity arises for the plaintiff to move into a less physically demanding job which is more remunerative than what he is doing at present, the continuation of the current loss over the balance of his working life represents a minimum figure for his future economic loss, the loss he will suffer assuming that in general most things in the future go for him as well as they can, provided one makes some allowance for the risk that had the accident not happened the employment, or equivalent employment equally remunerative, would not have continued anyway. Counsel for the plaintiff did make provision for some such allowance.
The plaintiff is I think struggling in his current employment at the moment, and I think there is every prospect that at some stage in the future he will give it up. When that happens, he will have difficulty finding other employment that he can do. Some forms of suitable employment were identified, but not very many and no doubt there are a limited number of opportunities for such positions, and some competition to obtain them. Counsel for the defendant submitted that there was nothing obviously wrong with the plaintiff, so he should be able to obtain employment without any great difficulty, but he may well be asked whether he has some injury or disability or pain, and I do not think that the plaintiff’s duty to mitigate his loss extends to lying to prospective employers. In any case, if the plaintiff is given the opportunity to work at a job which is actually beyond his capacity, the likely consequence will be that he will be unable to cope with it, and the employment will not last for any great length of time, either because the plaintiff gives up of his own accord, or because the employer realises that the plaintiff is not coping properly, and terminates the employment.
The plaintiff has a little over 20 years of earning capacity left to him. On the whole I think a reasonable approach to the assessment of future economic loss is to proceed on the assumption that the plaintiff will continue in his current employment, and therefore continue to suffer the current loss, for a period of five years, but that afterwards he will be thrown into the labour market with the difficulties that that will produce for him in getting or keeping employment. I do not think that much consideration should be given to the prospect that he might otherwise have returned to labouring, simply because of his advancing age, but obviously had the accident not happened the range of potential employment open to him would have been much wider than it now is. That is likely to be reflected principally in significantly more unemployment than would otherwise have been the case.
His current loss of earning capacity is running at just under $60 per week, and that loss over five years, discounted at 5%, comes to a little over $13,000, which I will discount for contingencies to $12,000. In respect of the period thereafter, I think it would be appropriate to allow in effect an extra two years unemployment in respect of the balance of his working life as a consequence of the increased difficulty he will have had in finding and holding suitable employment. But for the accident, his current net earnings would have been about $27,000 per annum, so that is the equivalent of $54,000, though that figure needs to be discounted because the loss will be suffered over a period beginning five years in the future. The present value of the 5% table of a loss of $54,000 suffered in 13 years time is $28,636. Because of the way this figure is arrived at, I do not think that any significant discounting for contingencies is appropriate, but I will round the figure down to $28,000. This produces a total of $40,000 for future economic loss.
Of course, what actually happens to the plaintiff might be quite different from this, but this approach gives I think a reasonable indication of the sort of figure which would be reasonable and realistic compensation for the plaintiff’s future economic loss, and the figure of $40,000 is the sort of figure which is not uncommonly awarded in cases where a person has been left with a painful disability which is likely to make it more difficult to earn an income in the future. I will therefore allow $40,000 for future economic loss. An allowance for future loss of superannuation contributions is not necessarily made where a global figure is awarded for future economic loss, but it can be made and not infrequently is, and I am prepared in this case to allow a further 9% of this amount, or $3,600.
Special damages were agreed in the sum of $1,873.15. It was also agreed that the amount which would bear interest is $671.35, and interest should be allowed on this at 2.9% per annum. There will obviously be an ongoing cost for painkillers, which may well increase in the future if the plaintiff’s condition deteriorates, and this cost will not be confined to the period of his working life. Accordingly, I think it is reasonable to allow a further amount of $1,000 for future medication expenses.
Accordingly, damages should be assessed as follows:
(a) General damages $5,000.00
(b) Past economic loss $9,225.00
(c) Interest at 2.9% per annum for 3-15 years $842.70
(d) Past superannuation $830.25
(e) Future economic loss $40,000.00
(f) Future superannuation $3,600.00
(g) Special damages $1,873.15
(h) Interest on $671.35 for 3-15 years $61.30
(i) Future medication costs $1,000.00
TOTAL$62,432.40
For the reasons given earlier, however, there will be judgment for the defendant with costs.
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