Ross v Profile Packaging Pty Limited
[2008] WADC 8
•24 JANUARY 2008
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ROSS -v- PROFILE PACKAGING PTY LIMITED & ANOR [2008] WADC 8
CORAM: SCHOOMBEE DCJ
HEARD: 3-7 & 10-11 DECEMBER 2007
DELIVERED : 24 JANUARY 2008
FILE NO/S: CIV 325 of 2005
BETWEEN: MICHAEL ROBERT ROSS
Plaintiff
AND
PROFILE PACKAGING PTY LIMITED
First DefendantSCOPE MACHINERY PTY LTD
Second Defendant
Catchwords:
Tort - Product liability - Defective machinery - Duty of care - Foreseeability of risk by manufacturer - Instructions on safe use of machinery by employer - Apportionment of liability - Contributory negligence - Assessment of damages
Legislation:
Nil
Result:
Judgment for the plaintiff in the amount of $695,373
Representation:
Counsel:
Plaintiff: Mr D Bruns
First Defendant : Mr T Lampropoulos
Second Defendant : Mr J Criddle
Solicitors:
Plaintiff: Separovic & Associates
First Defendant : Kott Gunning
Second Defendant : SRB Legal
Case(s) referred to in judgment(s):
Aerospace Engineering Services Pty Ltd v Ibrahim [2007] WASCA 33
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Bennett v Minister of Community Welfare (1992) 176 CLR 408
BGC Contracting Pty Ltd v Webber & Anor [2005] WASCA 112
Bowen v Tutte (1990) A Torts Rep 81‑043
Chappel v Hart (1998) 195 CLR 232
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Davis v Langdon (1911) 11 SR (NSW) 149
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Dowthwaite Holdings Pty Ltd v Saliba and Anor [2006] WASCA 72
Fitzpatrick v Job t/as Jobs Engineering [2007] WASCA 63
Fox v Wood (1981) 148 CLR 438
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Jones v Bartlett & Anor (2000) 176 ALR 137
Jones v Dunkel (1959) 101 CLR 298
Jones v Griffith [1969] 2 All ER 1015
Jongen v CSR Ltd (1992) A Tort Rep 81–192
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44
Kondis v State Transport Authority (1984) 154 CLR 672
Kschammer v R W Piper & Sons Pty Ltd, unreported; FCt SCt of WA; 3 December 2003
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McLean v Tedman (1984) 155 CLR 306
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Mulligan v Coffs Harbour City Council (2005) 223 CLR 486
Onetech Pty Ltd v Shaw [1999] WASCA 289
Paff v Speed (1960 – 1961) 105 CLR 549
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Roads and Traffic Authority of New South Wales v Dederer (2007) 238 ALR 761
Rosenberg v Percival (2001) 205 CLR 434
State of NSW v Moss (2000) 54 NSWLR 536
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Suosaari v Steinhardt [1989] 2 Qd R 477
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234
Vairy v Wyong Shire Council (2005) 223 CLR 22
Villasevil v Pickering (2001) 24 WAR 167
Wyong Shire Council v Shirt (1980) 146 CLR 40
SCHOOMBEE DCJ: Mr Michael Robert Ross, ("the plaintiff") suffered a severe injury to his right hand when it got caught between two moving platens of a thermo forming machine. The accident occurred on 12 June 2003 when the plaintiff was 23 years old. He was then employed by Profile Packaging Pty Limited ("the first defendant") as a machine operator and setter. The plaintiff had started working for the first defendant in 1996 and after about a year was trained on the operation of a thermo forming machine. These machines produce various shapes of plastic products like containers, lids and biscuit trays. The machines take sheets of plastic film from a roll at one end, heat a section of the plastic above a hot plate (the lower platen) and push this by means of air pressure into a die (a mould) attached to the upper platen where the plastic gets cooled and then cut into shape by knives surrounding the die. In the process the lower and upper platen close upon each other repeatedly and rapidly in order to push the plastic into the die and cut it.
Over the years the plaintiff had been trained to work on two or three of these machines; all of which had a similar method of operation. At the time of the accident the plaintiff's role was more supervisory and his duty was to assist other operators by obtaining the plastic material, setting up the temperature and heating times of the machines and assisting with jams in the machines which occurred regularly. It was also the plaintiff's duty from time to time to relieve other operators on the operation of their machines while they were at morning tea or at lunch break.
If a jam occurred inside the machines, the plaintiff had been instructed to open the Perspex windows surrounding the operating parts of the machine so that he could reach between the platens and remove the plastic material that had caused the jam. On all of the machines that the plaintiff had used there was a safety mechanism so that the operation of the machine was immediately interrupted once a Perspex window was opened.
The plaintiff gave evidence that he was not instructed to employ any other safety mechanism prior to putting his hands between the platens in order to remove a stuck piece of plastic. He said that Andrew Hewlett, the manager of the first defendant had told him that it was safe to put his hands between the platens as the safety mechanism engaged as soon as a Perspex window was opened. The plaintiff stated that an elongated piece of wood approximately 45 centimetres long, about 3 centimetres wide and 1.5 centimetres high was available on all of the machines that he had used. He was instructed to use this piece of wood if it was necessary to prevent the plastic sheeting sticking to the hot plate while clearing a jam. The plaintiff denied that he had been told to use this piece of wood or any other block of wood as an extra safety precaution to be placed between the two platens whenever he had to insert his hands in that gap either for purposes of removing a jam or for changing the die. The plaintiff said that it was his practice, whenever there was a jam, to rely on the operation of the safety mechanism which stopped the operation of the machine as soon as the Perspex windows were opened. According to the plaintiff it was not suitable to switch off the power to the machine, as it would then lose heat and take a while to start up again.
The machine on which the accident occurred ("the Machine") had arrived on the factory floor in early 2003. Its operation was essentially the same as the other machines on the factory floor, but it worked with electricity rather than pneumatic pressure. It was also more computerised and therefore required additional training for the operator. The plaintiff gave evidence that he was not trained at any stage to operate the Machine. However, he occasionally assisted the operator of the Machine, Mr Mith Siriwoot, to change the tools or dies on the Machine. The plaintiff also attended to the operation of this Machine on five or six occasions when Mr Siriwoot was on morning tea or lunch break. Apart from its high level of computerisation the Machine essentially operated like the thermo forming machines that the plaintiff had been trained on. It also had a hot plate (lower platen) affixed to a tray that was pushed up into the die attached to the upper platen and moved down again once the plastic product was heated, cooled and cut. The whole cycle of the hot plate moving up and down only took approximately three seconds. The Machine had a similar safety mechanism which caused the operation of the Machine to come to a standstill as soon as one of the Perspex windows was opened.
The plaintiff gave evidence that shortly after the Machine had been delivered it had to be sent back to the factory because something was not working properly. Further, a few weeks after the new Machine had arrived the plaintiff noticed that the Machine kept operating after a Perspex window had been opened. He says that he saw the lower hot plate move down after a window had been opened, whereas it should have come to an immediate stop. The plaintiff gave evidence that when he observed this incident he told Mr Siriwoot about it, as Mr Siriwoot was the regular operator of the Machine and the plaintiff considered him to be the older and more experienced employee. According to the plaintiff Mr Siriwoot replied that there was nothing wrong with the Machine, that it was safe and that the plaintiff should not worry about it. The plaintiff also spoke to Mr Andrew Hewlett and told him that the Machine was not working properly as observed by him. Mr Hewlett tested the Machine and it worked as required on that occasion. Mr Hewlett then told the plaintiff that the problem was fixed, that the Machine worked properly and that the plaintiff was not to worry about it.
On the day of the accident the plaintiff had just started to relieve Mr Siriwoot on the new Machine during morning tea when a jam occurred. The plaintiff opened one of the Perspex windows just as the lower hot plate was about to reach its lowest position and stretched forward to reach with his right arm into the space between the two platens. The plaintiff said that he rested his elbow on the lower tray which moves the hot plate up and down and tried to prise the stuck plastic from the die on the upper platen with his open hand facing upwards. The plaintiff estimated that his forearm was at an angle of 45 degrees and that the gap between the two platens when fully opened was approximately 30 centimetres. While the plaintiff was trying to pry the plastic off the die he noticed out of the corner of his eye that the lower platen had started to slowly move upwards. The plaintiff said that he tried to withdraw his arm and hand, but after the lower platen had moved approximately half way up it suddenly moved fast with a "bang" and caught his hand between the hot plate and the upper platen. His hand was burnt by the hot plate and all four fingers, other than the thumb, were cut severely by the knife surrounding the die. He called out to Mr Siriwoot who was still in the vicinity and who caused the lower platen to descend by employing the manual override switch.
The manual override switch was situated on the console on the outside of the Machine below the Perspex window which the plaintiff had opened in order to reach inside the Machine. The manual switch was a twist switch which consisted of a round knob with a vertical gripping plate which had to be turned sideways in order to make the lower platen move. If the knob was turned clockwise the lower platen moved up and if turned anti‑clockwise the lower platen moved downwards. The lower platen moved considerably slower when the manual switch was engaged than during its normal cycle. The plaintiff said in evidence that he could not recall any part of his body leaning against the Machine while reaching into the gap between the platens.
The plaintiff agreed that an operating manual for the Machine was available. He had seen it lying on Mr Siriwoot's work station. However, he had only given it a quick flick to look at the pictures of the Machine and had not studied it in detail. He had not noticed a crushing hazard warning contained on p 9 of the manual. This warning consisted of a triangular sign showing a hand crushed between two rollers with the following words appearing next to the sign:
"A crushing hazard exists between the faces of the press. Never allow any part of the body to enter this area without first isolating the main electrical isolator supply and placing wooden safety block between the press faces."
The plaintiff said that he did not agree with this warning as he had been taught by Mr Hewlett that it was safe to put his hands into the gap between the platens once the safety guards were opened. In his view the wooden block would also have made it more difficult to reach the jammed material. The plaintiff insisted that he had not been instructed by anyone to use wooden blocks whenever he put his hands between the platens. He was also adamant that he had never seen a block of wood of approximately 45 centimetres in length and 8 centimetres in width and height which was to be used on the Machine as a safety precaution.
According to the plaintiff he was present on the factory floor when a big person and his female assistant came to inspect the new Machine. He said that the big person tested the opening of the Perspex windows and the operation of the safety mechanism on a number of occasions; about 12 to 13 times. On the last occasion he observed the Machine "do exactly what it did to me".
Mr William Apgar
Mr William Apgar, a civil engineer/scientist with 30 years' experience in engineering, gave expert evidence on behalf of the plaintiff. He said that he had attended the premises of the first defendant after the accident and had observed the operation of the Machine. The plaintiff also attended the inspection and had demonstrated to Mr Apgar how he had placed his right hand inside the Machine on the day of the accident. There was a photograph attached to Mr Apgar's report which showed the plaintiff reaching into the Machine.
Mr Apgar explained that a safety mechanism on all four corners of the Machine came into operation as soon as a Perspex window (safety guard) was opened. This caused a kill switch to immediately stop the operation of the Machine. Mr Apgar said that the Perspex safety guards on the Machine were adequate and complied with Australian Standard AS 4024.1-1966. However, this Standard also required mechanical restraints for power presses in addition to the installation of safety guards. A mechanical restraint could consist of a scotching device which is a metal blocking device that swings automatically into position between the platens. Mr Apgar said that the cost of designing and implementing scotching guards would only have been a few thousand dollars. Although he himself had not designed scotching guards, he had designed similar pneumatic devices.
Mr Apgar stated that another option would have been to use a thick block of wood which the operator placed between the platens when he or she was working between the platens of the Machine. In Mr Apgar's view a scotching device would be preferable, as that did not depend on the worker remembering to place the block of wood in position. A block of wood could also possibly interfere with the working space required by the operator between the two platens and the proper functioning of a wooden block depended on the operator placing it in a position where it left him or her enough space but was still meeting its purpose. Mr Apgar conceded that although a block of wood was an old fashioned device, it was historically an accepted method of providing a mechanical restraint.
Mr Apgar gave evidence that the operating manual supplied with the Machine did not specifically provide instructions on how to clear a jam in the Machine. The only warning contained in the manual with regard to the risk of placing one's hands between the platens was the warning about crushing hazards on p 9 of the manual. Mr Apgar acknowledged that this warning said that the operator should never place any part of the body between the faces of the press without first placing a wooden safety block in between.
Mr Apgar was of the view that the Machine should have been supplied with a plaque containing a warning affixed in a position where it was clearly visible to the operator. The warning should have consisted of words such as: "Do not place hands between platens without putting wooden block in". Such a warning would have served as a constant reminder to the operator and also given rise to discipline if the procedure was not followed.
Mr Apgar further gave evidence that the operator should also have been referred to the operating manual during training and should have been shown the warning about the crushing hazard.
Mr Apgar was of the view that the U‑shaped metal guard which was fitted over the manual switch after the accident could have been installed when the Machine was originally delivered. He said that it was a good idea to have some protection for the manual switch as it was possible that a person of the plaintiff's dimensions and stature would have to assume a position where his body pressed against the manual switch as he was leaning forward to reach into the Machine. However, he considered that if a wooden block had been supplied and used on the day of the accident, the U‑shaped guard around the manual switch would not have been required.
Mr Apgar gave evidence that an earlier Australian Standard regarding the safe guarding of machinery emphasised that a designer of machinery should take into account that human errors arose from repetition work and that a designer should make such errors impossible. Mr Apgar pointed out that factory operators, who often have little education and have to do a repetitive job all day, may take short cuts that other people would first consider properly and then rule out as too risky. He expressed the view that a designer should try in the first instance to design a machine without any safety hazards. If that was not possible, the design should include some feature which blocked out the hazard. As a third and last resort, if that was not possible, the designer of the Machine should provide for adequate warnings and recommend training to highlight the hazard.
Mr Apgar stated that he was unable to say whether the Machine had malfunctioned on the day of the accident or whether the plaintiff set the operation of the Machine in motion by leaning against the manual switch. He expressed the view that computerised machinery was prone to malfunctioning and that the fact that the manner of malfunctioning could not be replicated during subsequent testing did not mean that a malfunction had not occurred on the day of the accident. He was of the view that the plaintiff's description of a "bang" indicated that the Machine had been malfunctioning. He explained that when he had operated the manual switch after the accident it caused the lower platen to move up slowly over a period of approximately 20 seconds without any banging sound when the lower platen reached the higher platen. However, Mr Apgar conceded that he did not have the expertise to determine whether a malfunction had occurred in the computer of the Machine on that particular occasion.
Mr Apgar also explained that the manual switch was a twist switch which needed to be turned a certain distance before the lower platen started moving. Once the switch was released it jumped back into its neutral position and the platen would stop moving.
Dr Steven Chew
Dr Steven Chew a mechanical engineer and certified professional ergonomist gave evidence on behalf of the first defendant. He said that in his view the most likely cause of the accident was the plaintiff inadvertently operating the manual switch when he leaned against it by reaching with his right hand between the platens. He thought that it was unlikely that the Machine had malfunctioned because a firm of electrical engineers had conducted tests on the Machine after the accident and he had relied on their expertise and conclusion. Although Dr Chew had not seen the plaintiff demonstrate how he had reached into the Machine on the day of the accident, he was of the view that it was possible that a person leaning against the manual switch with his hip or upper thigh could have put enough lateral pressure on the switch to cause it to move the hot plate upwards. Dr Chew also thought that it was possible for that pressure to be maintained for the time it took to raise the lower platen to a position where it would have crushed a hand between it and the upper platen. Dr Chew stated in his report that he had measured the gap between the upper and lower platen to be 140 millimetres when the platens were as far apart as possible. He stated that in his experience a person's average hand thickness is approximately 51 millimetres. As the lower platen moved at a speed of approximately 6 millimetres per second, if operated by the manual switch, the bottom platen would have had to be moving for 14 to 15 seconds before it would have closed sufficiently to trap the plaintiff's hand. Dr Chew stated that in his estimate it would only have taken a person one second to withdraw his or her hand from between the platens.
It was put to Dr Chew in cross‑examination that if the plaintiff had given a reasonable amount of attention to the task at hand, he would have noticed that the lower platen was moving upwards over the period of 14 to 15 seconds and would have been able to retract his hand in time. This was particularly so as the lower platen was heated to approximately 150 degrees Celsius and the plaintiff should therefore have felt the approaching heat. However, Dr Chew was of the view that a person would not necessarily have noticed that the lower platen was moving upwards. He said this depended on how focused the plaintiff was on removing the plastic that had jammed, the position of his body and where his eyes were directed to.
Dr Chew expressed the view that the U‑shaped bracket that was placed around the manual switch after the accident should have been installed at the time of manufacture. This would have prevented the possibility of an operator's body part coming into contact with the switch and inadvertently forcing it in a clockwise direction. Another method of preventing the inadvertent operation of the manual switch would have been to design and install an interlocking system which would cut off power supply not only to the automatic operation of the platens, but also to the manual switch as soon as the Perspex windows were opened. Pursuant to such a design the manual switch would only operate when used with a key and the key should be kept under strict control by management. Dr Chew stated that the inadvertent operation of the manual switch could also have been prevented if the Machine had been designed with a two handed manual control system which could have consisted of two switches that had to be operated simultaneously and had been located sufficiently apart.
Dr Chew further expressed the opinion that the Machine should have been supplied with a wooden block of sufficient dimensions and strength so that it would have prevented the platens from closing. In Dr Chew's view it would have been preferable to include in the design of the Machine a metal die safety block. This safety block could also have incorporated an electric plug which the operator would connect to a socket when the safety block was used. Inserting the plug into the socket would isolate the power supply to the press. However, even if a metal die safety block with or without electric interlock switch was not included in the design, the Machine should have been supplied with a suitable wooden block or, at the very least, the operating manual should have spelt out the dimensions and type of wood for the block.
Dr Chew gave evidence that when he inspected the Machine on 22 October 2007 he was shown a wooden block by Mr Stephen Hawkes, then the production manager of the first defendant, which was then used as a chock to prevent the platens from closing. Dr Chew measured the block dimensions to be 280 millimetres long, 103 millimetres wide and 80 millimetres high. Dr Chew said that the block was likely to have been made of dry Pinus Radiata. He tested the compressive strength of this wooden block and came to the conclusion that its strength and resultant safety factor were too low.
Dr Chew expressed the view that a system of automatic scotching blocks, as suggested by Mr Agpar, was not suitable for this specific machine because of the manner in which the sliding windows were designed.
Dr Chew pointed out that the operating manual provided with the Machine did not include a step by step procedure on how to clear a jam and said that it should have included such instructions. He said that it would only have taken a couple of hours to consider and formulate an appropriate procedure.
Dr Chew was also of the opinion that a prominent sign or notice warning of the safety hazard presented by the closing platens should have been placed on the Machine at the time of its manufacture so that it would serve as a constant reminder to the operator.
Dr Chew referred to a flow chart in Australian Standard AS 4024.1‑1996 which indicated a step by step procedure to be followed by the designer of a machine when considering hazards and ways of eliminating them. This flow chart indicated that a designer should in the first instance attempt to eliminate any hazard by design. Only if it could not be eliminated by design, should the next step be followed which was to consider safety measures to guard the operator from the hazard. The third step involved a consideration of the system of work, personnel protective equipment, warnings, signs and symbols required to ensure that the operator used the machine safely. Dr Chew said that on the basis of this suggested method of design, it would have been appropriate for the designer of the Machine to eliminate the crushing hazard by design, which would have involved his suggested modifications to the manual switch, before considering the use of a wooden block which depended on adequate training and the cooperation by the operator.
Dr Chew agreed in cross‑examination that training played a very important role and that during training the operator should be shown the manufacturer's safety instructions as contained in the operating manual and that those safety procedures should also be demonstrated to the operator. He agreed that it was a serious breach of an owner's responsibility if the owner gave safety instructions which were contrary to the operating manual for the Machine.
Other witnesses on the liability issue
Mr Elias Argyropoulos (also known as "Leo") gave evidence on behalf of the plaintiff. At the time of the accident he was an operator of another thermo forming machine on the factory floor of the first defendant. He had worked for the first defendant since November 1997. Mr Argyropoulos did not see the accident happen but said that after the plaintiff's accident Mr Rory Kelly, the managing director of the first defendant, Mr Stephen Hawkes, the logistics manager, and Mr Andrew Hewlett, the floor manager, all talked to the operators of the machines and told them that in future they would have to make sure that they put a block of wood between the top and bottom platens when working in that gap even though the safety guards had been opened.
Mr Argyropoulos gave evidence that about four months prior to the plaintiff's accident, on 28 February 2003, he himself lost a finger in the thermo forming machine that he was operating. As a result he was off work until about May or June when he recommenced as a machine operator with the first defendant. When he returned to work he was not given any additional instructions on how to operate the machine. Mr Argyropoulos also said that he had never been provided with an operator's manual for the machine that he was attending to, but had received all his instructions from Mr Stephen Hawkes.
Mr Argyropoulos stated that on the day of the accident the plaintiff was as bright and cheerful as he usually was and he and the plaintiff were in the habit of exchanging teasing remarks.
The first defendant's managing director, Mr Rory Kelly, gave evidence on behalf of the first defendant. He said that he had purchased the first defendant's business in about January 2002, but had not come from a manufacturing background. He left it to his managers to put in place a safe system for the operation of the machines. The first defendant purchased the Machine for about $160,000 and it was delivered in January or February of 2003. Mr Kelly said that the Machine was not supplied with a wooden block. He said that he was present when the Machine was unpacked and he would have seen the wooden block if it had been there. Mr Kelly also commented that the first defendant purchased another thermo forming machine from the second defendant in 2005 and this came with a wooden block and a specific holder on the machine to house the block.
Mr Kelly was of the view that prior to the plaintiff's accident there were some wooden blocks on each machine but he was uncertain whether there was more than one block on each machine and exactly what size each block was. He initially referred to only one block of wood and said that he could not recall its size. When a photograph of the Machine was presented to Mr Kelly and he was told that it had been taken on the day of the accident, he agreed that a thinner piece of wood of approximately 1 inch by 1 inch which is shown on the photograph to lie on top of the control panel and a block of wood of larger dimensions which is shown standing on the floor next to the control panel were the pieces of wood that had been available to the operators at the time of the plaintiff's accident. Mr Kelly was of the view that some block of wood was already available on each machine prior to the plaintiff's accident because in his recollection WorkSafe had instructed the first defendant after the accident that the wooden blocks then in place were inadequate in size. In fact, the improvement notice issued to the first defendant by the Department of Consumer and Employment Protection ("WorkSafe") directed the first defendant to ensure that a physical barrier was used while maintenance was being done to prevent the platens from meeting and that the physical barrier be "greater in length than the plates". Mr Kelly was not sure whether the wooden blocks were introduced by the first defendant after Leo's accident in February 2003. He said he could not say exactly whether a 4 inch by 4 inch wooden block was available on the machines prior to the plaintiff's accident, as it was a long time ago.
Mr Kelly gave evidence that he had instructed the general manager to make sure that a wooden safety block was placed between the platens when an operator had to move his hands into that space, but he left the instructions to and training of the operators to his managers. It was only after the plaintiff's accident that he personally spoke to his staff and emphasised in the strongest terms that they could lose their job if they did not follow these instructions. He said that his managers may not have been as forceful in their instructions prior to the plaintiff's accident.
Mr Kelly gave evidence that the first defendant had never followed the manufacturer's instructions that the Machine should be turned off at its electricity supply every time the operator needed to do some work between the platens. Mr Kelly said that it would take on average approximately 15 minutes to restart the machine and it was just impractical for the manufacturer's instructions in this regard to be followed.
Mr Kelly denied that he had been told at any stage that the Machine was malfunctioning. He also denied any suggestion that the Machine was malfunctioning when the representatives from WorkSafe came to test it after the accident. He said that if there had been any doubt about the Machine continuing to operate with the safety guards open, he would have sent it straight back for repairs.
Mr Kelly gave evidence that on the day of the accident, when he collected the plaintiff's belongings he noticed that there was a small plastic bag with marijuana stuffed into a packet of cigarettes which was in the plaintiff's kit. The package of marijuana was approximately 1 or 2 inches square. He asked Mr Andrew Hewlett to speak to the plaintiff about this.
Mr Kelly also said that after the accident the plaintiff was employed for some two months as a forklift driver for the first defendant. Mr Kelly was of the view that the plaintiff managed to do this work well. It involved him moving raw material and finished goods with the forklift between the warehouse and the factory floor. In addition the plaintiff sometimes moved rolls of material into place although Mr Kelly had told him that he was not required to do that. He said that the plaintiff was sometimes very energetic and sometimes not, which he thought was characteristic of the plaintiff. Mr Kelly said that if the plaintiff experienced pain on doing this job, he did not tell him about this.
The first defendant also called Mr Mith Siriwoot, who was a machine operator/supervisor on the factory floor in 2003. When the Machine arrived in early 2003, he was assigned to be its operator. He said that the Machine was not delivered with any wooden block. He stated that Leo's accident happened because the safety guards of the machine he was working on had been taken off and two people were working on the machine doing a sample run. There was a "communication error" which caused the accident.
Mr Siriwoot gave evidence that after Leo's accident "the boss" told everyone to be more careful and to operate the machines one person at a time. He said that no instructions were given after Leo's accident to use wooden safety blocks and no big blocks of wood were available on the machines at that time. The operators only used a small wooden block to lift the plastic material from the hot plate. It was only after the plaintiff's accident that the operators were given a bigger block of wood to use on the machines. On being shown the photograph taken by WorkSafe with the thin piece of wood on top of the console and a thicker piece of wood standing next to the console, Mr Siriwoot said that he could not remember seeing the thicker piece of wood at the time of the accident. Up until that time he had only used the small piece of wood on top of the console to prevent the material sticking to the hot plate.
Mr Siriwoot said that on the day of the accident he rushed to the plaintiff's assistance when he heard him screaming. The plaintiff was standing approximately in the middle of the console with his right hand stretched out into the Machine. He approached the plaintiff from the plaintiff's right, walked around the plaintiff and operated the manual switch to the left of the plaintiff.
Mr Siriwoot said that it had never been his practice to isolate the electricity supply to the Machine when he placed his hands between the platens. He said that he had access to the operating manual and had read parts of it. However, he said he could not understand everything in the manual and he already knew how the machines operated as they all had the same safety system. Mr Siriwoot was referred to the warning regarding crushing hazards on p 9 of the operating manual, but indicated that he did not understand all of the English language, particularly not the word "isolate".
Mr Stephen Hawkes, the production manager for the first defendant, also gave evidence. He said that he had been working for the first defendant for 11 years and had been the logistics manager in 2003. This meant that he organised what product was manufactured on each machine at any given time and arranged for despatch and receipt of goods. He stated that at peak periods he had also operated the machines for a couple of hours before the other operators arrived or as lunch time relief. He was present when the Machine was delivered and recalled that it was not supplied with any wooden blocks. When the Machine was delivered a representative from the second defendant demonstrated the Machine. However, it was a "static" demonstration without any material running through the Machine. The representative did not demonstrate the use of wooden blocks.
Mr Hawkes said that the first defendant obtained its own wooden blocks after Leo's accident. He was on leave when Leo's accident occurred, but when he returned approximately a week afterwards he found that wooden blocks had been provided for each machine. He said that these blocks of wood were approximately 2 inches by 3 inches wide and 3 feet long. They came out of containers which had been delivered to the first defendant and were soft pine. On being shown the photograph taken by WorkCover and the piece of wood standing next to the console, Mr Hawkes said that the blocks of wood provided after Leo's accident were similar to the block of wood in the photograph. After the plaintiff's accident WorkSafe required the first defendant to obtain a thicker piece of wood. Wooden blocks of approximately 4 inches by 4 inches were then acquired by the first defendant. These blocks of wood were made of dressed pine. Mr Hawkes also said that after the plaintiff's accident Mr Kelly put up a warning sign on each machine indicating that the blocks of wood had to be used whenever an operator was working between the platens.
Mr Hawkes gave evidence that he was present when the representatives from WorkSafe came to look at the Machine and tried to operate the manual switch by leaning against the console and pushing against the manual override switch. Mr Hawkes said that one of the representatives from WorkSafe managed to operate the manual switch so that the hotplate lifted by approximately 4 to 5 millimetres. However, the lifting movement was not sustained. The representative from WorkSafe had a mobile phone or keys or something similar in his pocket.
Mr Hawkes said that in 2003 he was not involved in providing training to operators. He had also not had any occasion to read the operating manual for the Machine. He stated that it would take at least three to four minutes before the Machines would run again once the electricity supply to them had been switched off. Mr Hawkes was not aware of the plaintiff having complained at any stage about the malfunctioning of the Machine.
The second defendant's first witness was Mr Peter Bushe, who was its automation manager in 2003. Mr Bushe said that it had been his duty to test the Machine to make sure that it operated properly prior to it being shipped from the first defendant's premises in Melbourne to Western Australia. He completed an automation check list, dated 18 February 2002, in respect of the Machine. This list indicated that he had checked the operation of the "checkguard switch". Mr Bushe said that he had opened each safety guard at a time and checked that the safety mechanism worked properly. Mr Bushe recalled that the Machine had been sent back after delivery, but thought that this was by reason of some mechanical problems. Mr Bushe was shown a letter from the first defendant to the second defendant dated 11 February 2003 which stated, amongst other problems, that the start and reset buttons were wired around the wrong way and that the computer on the Machine would not stay on one screen but kept reverting to the host screen. Mr Bushe acknowledged that these were electrical faults and that they should have been picked up by him when he checked the Machine prior to delivery.
Mr Bushe also gave evidence that when the second defendant's machines were packed there was a standard tool kit that was sent along. This tool kit included spanners, sockets, an Allen key and a wooden safety block. He said the wooden safety block was approximately 100 millimetres by 100 millimetres and about 200 millimetres long. It was bought from a hardware store and consisted of cypress pine. He said that a wooden block should have been sent along in the tool kit for the Machine, but he could not say whether this had happened in this case or not.
The second defendant also called Mr Eugene Mueller, who is an electrical engineer and practises as Mulsan Engineering Pty Ltd. He was asked by the second defendant after the plaintiff's accident to check whether the Machine had been correctly wired with regard to the electric wiring indicated on drawings supplied to Mr Mueller. Mr Mueller prepared a report, dated 13 August 2003, which indicated that the Machine had been checked and that all the electrical wiring had been found to be correctly wired as per the drawings then supplied to him. The report said that after functional testing Mr Mueller could not create an "unsafe condition" and that the safety devices interrupted the normal running of the Machine immediately. Mr Mueller said in evidence that he had opened each safety guard individually, waited possibly 20 to 30 seconds before closing them again and the Machine had stopped working during that period. He could not recall whether he had tried to manipulate the manual override switch without using his hands.
Mr Nicholas Mebberson, the managing director of the second defendant, also gave evidence. He obtained a degree in mechanical engineering from the University of New South Wales in 1987. He said that he and his father had bought the second defendant's business in about 1991. In 2002 the business achieved a turnover of between two and three million dollars and exported machines throughout Australia and to almost twenty overseas countries. The Machine, model number 4528, was an once‑off design as the machines were constantly evolving. The Machine was based on the design of the person from whom the business had been purchased and Mr Mebberson himself was responsible for changing approximately a quarter of the design of the original Machine. In the early days Mr Mebberson had consulted the Australian Standards, but in 2002 the second defendant built its machines to comply with the CE rating which is the European Union rating. The second defendant engaged consultants to make sure that its machines complied with the CE rating.
Mr Mebberson said that prior to the second defendant's Machine being built according to the CE rating, machines that were similar to the Machine were not supplied with a wooden block. However, after the second defendant's adherence to the CE standard a wooden block was supplied with every machine. Mr Mebberson said that the Machine may have been the first or second machine that had been built to comply with the CE rating.
Mr Mebberson said that he checked the adequate packing of each machine that left the second defendant's premises. At that time he also usually checked that all items which made up the kit that was packed in a cardboard box and sent along with the Machine were present. The kit included a spanner, a socket, a grease gun, an oil can, an Allen key set and a wooden block. Mr Mebberson gave evidence that there was no check list for these items but that he would have noticed if one of the items was missing. There were about 12 items which made up the kit. The wooden block was made of hard wood and its dimensions were 4 inches by 4 inches with a length of approximately 350 millimetres.
Mr Mebberson said that prior to the plaintiff's accident the second defendant had received no complaints with regard to the operation of the manual switch and had never been informed of the inadvertent operation of this switch on any machine. Approximately 10 earlier machines would have had the manual override switch in the same location as that on the Machine.
When the second defendant was advised of the plaintiff's accident Mr Mebberson tried to operate an identical manual switch on a machine which was stationed in Victoria. He said that he was not able to do this without using his hands; neither with his hip or a phone or keys in his pocket or a belt. He thought that it was nearly impossible for the manual switch to have been inadvertently activated. Mr Mebberson stated that it took approximately 20 seconds for the platens to come together once the manual switch had been put into operation and that the lower platen would normally be heated to about 125 degrees Celsius.
Mr Mebberson was of the view that the wooden block which was supplied together with the Machine would have been of sufficient strength to withstand the closing force of the patens because the closing force would have been considerably less at the level where the higher platen comes into contact with the piece of wood than at the level where the two platens close without a block of wood in between. This was because the Machine was a mechanical toggle and the closing force was only about 1 or 2 tonnes when the platens were approximately 4 inches open (the thickness of the block wood) and not 40 tonnes which was the closing force once the two platens closed on each other.
After the accident Mr Papamarkos, a WorkSafe inspector spoke to Mr Mebberson on the telephone and advised him that WorkSafe required the second defendant to put a shield around the manual override switch. As a result of these discussions the second defendant sent a safety notice, dated 19 June 2003, to all its customers whose machines had a manual override switch. The notice advised the customers of the plaintiff's accident and noted that the manual switch might have been accidentally activated. The safety notice also reminded customers that no body part should be placed between the platens while the Machine was energised and that the additional precaution of placing a hard wooden block between the platens should be taken. Mr Mebberson said that together with these notices the second defendant sent a U‑shaped metal guard with instructions for the installation of it around the manual switch. Mr Mebberson stated that the cost of such a guard was only approximately $40 to $50 and it would have taken approximately 20 minutes to have fixed it in place.
Mr Mebberson gave evidence that the operating manual was drafted by Mr Bushe. Although Mr Bushe was an electrical engineer, Mr Mebberson said that he had good mechanical knowledge and had been involved with the commissioning and installation of the machines. Mr Mebberson was not involved in writing the manual. Mr Mebberson acknowledged that the operating manual did not contain any instructions on the operation of the manual switch and also included no procedure on how jammed material should be cleared from the die. Mr Mebberson acknowledged that the caution regarding crushing hazards on p 9 of the operating manual only partly applied to the procedure for clearing a jam, as an operator would not in the normal course of operating a machine totally isolate the electricity supply before putting his hands between the platens. He said that operators might be clearing blockages a number of times an hour and that it was not practical to turn off the electricity supply. However, he emphasised that the instructions in the manual to place a wooden safety block between the platens was relevant to the procedure for clearing a jam and should have been followed.
Mr Mebberson acknowledged that there were metal brackets around other switches on the console of the Machine. He said that those brackets had been introduced because customers tended to "knock the end of the switches off" while standing close to the console.
Mr Mebberson explained that once the automatic operation of the Machine had been interrupted by reason of the fact that either the stop button had been pressed, or the safety guards had been opened or the emergency stop button had been pressed, the automatic operation of the Machine could only be reactivated by the start button being depressed for two to three seconds. This was necessary so that the platens could open fully again which the Machine recognised as a prerequisite for material being fed through the platens again.
The second defendant also called Mr Gary Papamarkos, an inspector for WorkSafe. It was clear from the evidence of Mr Papamarkos that he had little independent recollection of his visits to the first defendant's factory and relied mainly on the notes made by him and other employees of WorkSafe in an investigation report. Mr Papamarkos could not recall that the manual override switch consisted of a twist button and initially referred to it as a button that has to be depressed. He said that he visited the site on the day of the accident and took some photographs on that day. The investigation report confirms this. However, Mr Papamarkos said that he took photographs on two occasions and that it was no longer possible to identify from the copies of the photographs currently on the WorkSafe file which photographs were taken on which occasion. The investigation report indicated that Mr Papamarkos went on site on 12 and 13 June 2003 and on 20 June 2003.
Mr Papamarkos said that he was initially baffled about how the accident could have happened. He gave evidence that he and another representative of WorkSafe tried to replicate the movement of the platens with the safety guards being open but did not manage to do so. He said that from his recollection he happened to lean against the manual override switch with a mobile phone in his pocket and once he lent against the switch a bit harder, the switch actually started moving. Mr Papamarkos was also shown a twist‑type of switch mounted on a plastic box (Exhibit 51), but could not say whether that switch was similar to the manual override switch that he saw on the Machine.
The defendants also tendered extracts from the plaintiff's records kept by Sir Charles Gairdner Hospital 1906. These extracts were admitted as business records pursuant to s 79C(2)(a) of the Evidence Act 1906 (WA) (Exhibits 58, 59 and 60). The defendants both pleaded that the plaintiff was liable for contributory negligence in that he had consumed marijuana to such an extent as to impair his powers of observation and judgment as a consequence of which he failed to notice (by way of noise or movement) that the lower platen was ascending and failed to remove his hand in time. The defendants submitted that the information contained in the extracts from the plaintiff's hospital records indicated that he was a regular user of marijuana, had smoked two to four cigarettes per day at the time of the accident and was likely to have smoked these at work as he had in the past experienced difficulties with his parents regarding his drug use.
Exhibit 58 is an anaesthesia record. It indicates that a pre‑operation assessment was made by a person named Wicks on 11 June 2003. The date is clearly wrong as the accident only occurred on 12 June 2003. However, this record indicates that the plaintiff admitted to smoking and to moderate intake of alcohol. Next to "other" the record lists "marijuana; (XIU speed)". Exhibit 59 is an opiate withdrawal chart which is undated and does not indicate by whom it has been completed. However, it has the plaintiff's name and his admission date printed at the top of the document. At the bottom of this document a person has written the following words: "Ex speed taker 2/52 ago; marijuana smoker 2 ‑ 4/day". Exhibit 60 is an extract of the running inpatient notes kept by the staff of Sir Charles Gairdner in respect of the plaintiff. As part of an entry on 16 June 2003 a person, whose name is not legible, entered the following information:
"Mother rang and felt improvement in relationship between Michael and her happened Sunday pm, father to come in this evening with mother and hoping will also feel able to talk to his father. Psychologist hopefully able to not only deal with trauma due to accident but also the relationship problem re parents. Bright, breezy boy to staff, sullen and non‑communicative when parents in over weekend, due to past problem of parents calling police in when taking drugs as a 14 year old. Apparently like this ever since with parents, and refusing to take part in any family activities."
In support of their claim of contributory negligence the defendants also relied on the evidence of Dr Allen Home, occupational physician, who said in his report dated 3 September 2007 that long term use of cannabis affected short term memory and co‑ordination. Dr Home stated that the most common short term effects of the use of cannabis were talkativeness, bouts of hilarity, relaxation and greater appreciation of sound and colour. However, experimental studies had shown that cannabis impaired cognition and psychomotor function and that cannabis smokers performed less well on tasks requiring concentration and intellectual or manual dexterity such as driving. He said that effects generally started within a few minutes after smoking and might last for up to one hour on a low dose and several hours on high doses. In cross‑examination Dr Home conceded that the usual reaction by a person who was a regular cannabis user was to display "sleepy‑self absorption". However, he said that this also depended on the individual's reaction.
The plaintiff's injuries
The meeting of the platens around the plaintiff's right hand resulted in a significant crush and burn injury. The plaintiff's four fingers other than the thumb were amputated and he received significant burns to the back of his hand. The plaintiff was rushed off to hospital where the last two digits of his middle, ring and little finger were successfully re‑implanted during a lengthy operation. The second and third digits of the index finger could not be saved and the finger had to be amputated at the proximal interphalangeal joint. The plaintiff underwent another operation in July 2004 when the webbing between his ring and little fingers was released.
After the operations the plaintiff was required to wear flexion and extension splints as much as possible and a report from Ms Elizabeth Saleeba, occupational therapist, dated 11 November 2003 and tendered by consent, indicates that the plaintiff did do so and that this assisted with the flexion and extension of his fingers.
The plaintiff still has a significant disability in his right hand. Apart from the index finger being amputated at the proximal interphalangeal joint, the same joint of the other fingers is fused at 0 ‑30 degrees and the distal interphalangeal joint of the other fingers is fused at 60 – 80 degrees. This means that the plaintiff's right hand is permanently in a clawed position. He is also not able to bring the tips of his three remaining fingers to the palm and therefore has no useful grip in his right hand. He is only left with a pinch grip between his right thumb and the remaining phalanx of his index finger. The injury has therefore resulted in joint deformity, joint stiffness, lack of grip and strength and altered sensation impact. In addition the plaintiff has significant scarring over the back of the hand as a result of the burn injury.
In December 2003 the plaintiff reported to Dr David Kennedy, specialist in musculoskeletal medicine, that he still had persistent pain in the fingers of the right hand especially in the knuckle at the base of the fingers as well as numbness, tingling and phantom pains in the amputated index finger. In July 2005 the plaintiff reported to Dr John Ker, consultant physician in rehabilitation medicine, that he experienced a loss of grip strength, dexterity and sensitivity in his right hand, as well as abnormal sensitivity at the border of the right hand below the little finger.
In his evidence the plaintiff said that the pains and aches in his hand had become a little worse over the last four years, as initially his hand was only feeling numb. The plaintiff said that using a gripping device to strengthen his hand was painful and that it was painful to cut up food with a knife. The plaintiff also stated that he had experienced pain when he did a period of work rehabilitation at Giant Hyundai where his duties were store keeping. The plaintiff did not describe in any better detail exactly what activities caused him pain in his hand.
In August 2007 the plaintiff reported to Ms R Jodrell, occupational therapist, that the phantom pain in his index finger had diminished over time and now occurred rarely. However, he noticed a pain in the lower palm just above the wrist which was present at a low level most of the time but was felt at a greater level by pressure such as leaning on the wrist when pushing up from a seat. The tip of the index finger experienced sharp jabbing pains at times during the day and the lateral aspect of the little finger was painful. The plaintiff also reported that the pain was worse when the weather was cold.
The plaintiff was referred by his plastic surgeon, Mr Mark Lee to Dr John Akers, specialist anaesthetist and pain consultant. It appears from Dr Akers' report that he first saw the plaintiff in November 2006. At that time the plaintiff reported to Dr Akers that the pain was occurring daily and was exacerbated by activity and psychological stress. The pain was generally about 5/10 on average but would increase to 10/10 with exacerbation. Dr Akers diagnosed the plaintiff as having neuropathic pain with a potential for phantom pain. Dr Akers recommended injections of Calcitonin which might reduce significantly some of the pain.
The plaintiff consulted Mr Greg Finch, orthopaedic surgeon. Mr Finch recommended that the plaintiff be referred to a skilled reconstructive hand surgeon to consider a corrective operation to the fingers to allow them to be put in a more functional position. It does not appear that the plaintiff received advice to proceed with such an operation as no further evidence was provided and no claim is made in this regard. In his report of 4 November 2007 Mr Finch advised that the plaintiff might require fusion of various joints in the future or the excision of painful neuromas which can sometimes be a problem with amputated fingers. The costs of such an operation would be in the order of $5,000 to $10,000. Mr Finch estimated that the plaintiff would require ongoing attendances at a general practitioner of about six per year, three attendances per year at a medical specialist and five to ten sessions of physiotherapy. With respect to the latter attendances, Mr Finch stated that the plaintiff had probably reached maximum medical improvement with respect to his injury. Mr Finch was called as a witness by the plaintiff by video link, but was not cross‑examined by counsel for either defendant.
The plaintiff has also been diagnosed by Dr Gemma Edwards‑Smith, consultant psychiatrist, as suffering from post‑traumatic stress disorder. Dr Edwards‑Smith saw the plaintiff for a medical‑legal assessment in July 2005, October 2006 and October 2007. She reported that the residual psychological symptoms of this disorder had improved but that the plaintiff continued to experience flash backs of the accident and intrusive images of his hand without the fingers. The plaintiff also reported having disturbing dreams. Dr Edwards‑Smith diagnosed psychological symptoms of low self‑esteem and anxiety. She recommended that the plaintiff attend a clinical psychologist for a further 8 – 12 sessions for ongoing therapy. In her reports Dr Edwards‑Smith stated that the plaintiff presented as immature and inarticulate and tended to smile frequently throughout the interview. He also found it difficult to describe his emotional experiences.
The plaintiff has already received psychological treatment from Mr Christopher Semmens, clinical psychologist, who has seen the plaintiff on 14 occasions between November 2006 and May 2007. He also diagnosed the plaintiff with post‑traumatic stress disorder and stated that in addition the plaintiff suffered severe levels of stress, anxiety and depression. He had chronic pain, difficultly with sleeping, intrusive dreams of the traumatic event, irritability and anger and an issue of self‑esteem and body image. Dr Semmens already tried several treatment approaches with the plaintiff with relative success, but had not achieved success in respect of the symptoms of the post‑traumatic stress disorder. In evidence Mr Semmens recommended that he try a further method of treatment for post‑traumatic stress disorder for approximately 15 sessions at $192 per session.
The plaintiff's work rehabilitation
The plaintiff was born on 4 March 1980 and is currently 27 years of age. He attended high school until the first term of year 10 only and then left school to assist his father in his refrigeration repair business. After a year or two the plaintiff obtained employment with the first defendant in a manual labour position. The plaintiff had not tried to obtain a driver's licence prior to the accident. He said that he was concerned that he might fail the test. However, the plaintiff had obtained a forklift driver's licence prior to the accident.
Ms Fiona Vandamme, clinical psychologist, provided a report, dated 22 November 2007, which was tendered without objection pursuant to s 79C of the Evidence Act1906. Ms Vandamme stated that the plaintiff had reported a history of learning problems at school and required speech therapy soon after starting primary school. Ms Vandamme conducted the Raven's Progressive Matrices test which in her opinion is a good estimate of a person's innate intellectual ability. The plaintiff scored 38 per cent which Ms Vandamme stated to be in the average range. She also administered a clerical speed and accuracy test for which the plaintiff scored 35 per cent at 100 per cent accuracy. However in respect of a test for spelling (recognition) the plaintiff only scored 3 per cent, which is well below average. Ms Vandamme also administered reading, spelling and arithmetic sub‑tests in which the plaintiff scored well below average (6 per cent in the first test and 1 per cent in the two latter tests). According to Ms Vandamme the testing indicates that the plaintiff has non‑verbal problem‑solving skills and an intellectual capacity in the average range, but literacy and numeracy skills which are well below average. She also noted that writing with his right hand was very slow and awkward and that he complained of pain after a few minutes' use.
Past and future medical expenses
The parties agreed on a sum of $80,618.05 as past medical expenses. The plaintiff claimed the sum of $6,520 for future medication expenses. This was based on one packet of Mirtazapine per month which costs $30.70 per packet for the rest of the plaintiff's life. The plaintiff currently takes this medication as an aid for sleeping and it also works as an anti‑depressant. Dr Edwards‑Smith said that she had prescribed this medication for another 12 months and would review it thereafter. Whether the plaintiff will require an anti‑depressant and sleep aid for the rest of his life clearly depends on how well he will overcome his post‑traumatic stress disorder, whether he will find employment and how well he will adjust to life despite his disability in the long term. Doing the best I can, I allow 70 per cent of the claim which is $4,564.
The plaintiff has also claimed damages for six attendances on his medical practitioner per year at a cost of $50 per attendance. Counsel for each defendant has argued that two attendances per year should be sufficient. However, Mr Finch, orthopaedic surgeon, recommended six attendances on the plaintiff's general practitioner per year and he was not cross-examined at all although he was called as a witness by video link. I am therefore of the view that the plaintiff should be allowed six attendances per year for the remainder of his life at a cost of $50 per attendance which equals $4,901 (multiplier 849.6).
Counsel for the plaintiff also submitted that it was likely that the plaintiff would undergo further hand surgery in future which was estimated to cost between $5,000 ‑ $10,000 and that he would proceed with two to three Calcitonin injections at a total cost of $1,000. This treatment would require three attendances per year on specialists at a cost of $150 per attendance. Mr Finch stated in his report that there was a possibility that the plaintiff might require excision of painful neuromas in the future or fusion of various joints. Dr Finch estimated the costs of such an operation to be between $5,000 ‑ $ 10,000. No evidence was led as to how likely it is that such an operation will be required. As Mr Finch has considered a future operation a possibility, without stating that it is likely to be necessary, I make the best estimate that I can, which is that there is a 50 per cent chance that the plaintiff may require a further corrective operation in the future. This estimate is also based on the fact that if the plaintiff finds suitable employment he may be more inclined to undertake further surgery to his hand if the joints become painful. There was no evidence as to when such an operation is likely to occur and it was not submitted that a multiplier should be applied. Accordingly, I have allowed $5,000 for future operations.
The plaintiff was asked whether he was likely to have Calcitonin injections in the future as recommended by Dr Akers. I have quoted his answer earlier. It seems to convey that the plaintiff might have them in the future if the pain gets worse, although he did not like having injections. Despite the plaintiff's reluctance to have injections, I am of the view that there is a 50 per cent chance that he will make use of this pain relief in future, particularly as I have made a substantial deduction of the amount allowed for loss of earning capacity on the basis that he will find some work in future. Accordingly, I allow the amount of $500 in this respect.
Mr Finch said in his report that three attendances per year on specialists would be reasonable. No evidence was provided regarding what specialists were likely to be required, but Dr Finch was also no cross-examined regarding his estimate. I accept that the plaintiff may need further attendances on a pain management specialist on an ongoing basis, particularly if he is working and making use of his right hand. He will also require multiple attendances on an orthopaedic surgeon if he proceeds with the future surgery or the Calcitonin injections. Although three attendances on a specialist per year for the rest of his life strike me as generous, I have no reason to doubt Mr Finch's estimate and therefore allow three attendances on specialists per year at $150 per attendance which amounts to $7,352 (multiplier 849.6).
I also see no reason not to allow the costs of 12 further attendances on Mr Semmens, as he has recommended these. The plaintiff would be well advised to attend these further sessions as it is important that he overcomes his post traumatic stress disorder. The plaintiff may also require psychological assistance when he has to deal with the invariable set-backs of finding and settling into a new employment position. I have no reason to come to the conclusion that the plaintiff will not attend these sessions with a psychologist, as submitted by counsel for the defendants. Accordingly I allow 12 attendances at a cost of $192 per attendance, which amounts to $2,304.
The plaintiff further claimed damages in respect of 7.5 attendances per year for hand therapy/physiotherapy treatment at a cost of $42 per session. Mr Finch expressed the view that 5 to 10 sessions of physiotherapy per year would probably be required. Although there was no evidence that the plaintiff has attended physiotherapy session in the last couple of years, I accept Mr Finch's recommendation in the absence of any evidence to the contrary. Accordingly, I allow the amount of $5,147 (multiplier 849.6 x $6.05 per week) as claimed.
Past and future paid and/or gratuitous services
The plaintiff made a claim for $60,900 in respect of past gratuitous services which represents 10.5 hours per week at $25 per hour. Counsel for the plaintiff submitted that the plaintiff's family have assisted the plaintiff in daily aspects of living including dressing and undressing, tying shoe laces, doing up buttons, assisting with meals, cooking, cleaning, gardening and driving the plaintiff to various appointments. However, there has been very little evidence from the plaintiff and none from other witnesses with regard to past gratuitous services rendered. The plaintiff said in evidence that he now basically does everything for himself, although his mother still vacuums the house and mops the floor. It is likely that the plaintiff's mother had been vacuuming the house and mopping the floor prior to the plaintiff's accident in any event and no evidence was led that the plaintiff had been helping with such chores prior to the accident. However, I accept that members of the plaintiff's family would have assisted the plaintiff substantially during the first year after the accident and that he is likely to have been given occasional assistance after that, at least with regard to driving him to his various appointments. I allow 10.5 hours per week for the first year, which amounts to $13,650 and two hours per week on average for the remaining 180 weeks, which amounts to $9,000. This is a total amount of $22,650. The calculation of two hours per week on average is based on the assistance that the plaintiff is likely to have received, including driving him to appointments with medical practitioners or psychologists and assistance in respect of tasks that require the use of more than one hand. I am not able to allow any greater amount in light of the lack of evidence in this regard.
Interest at the rate of 3 per cent should be allowed on both amounts, which gives rise to the following calculations: $13,650 x 3 per cent x 1 year is $409.50 and $9,000 x 3 per cent x 3.5 years is $945. This means that the plaintiff should be allowed a total amount of $1,354.50 in respect of interest on past gratuitous services.
Ms Jodrell, occupational therapist, stated in her report that the plaintiff will require 1.5 hours per month for gardening and yard maintenance at a cost of $32.95 per hour should he live in his own accommodation including a yard. She also recommended that the plaintiff should have one hour a week of basic house cleaning assistance at a cost of $16.50 per hour which would be reasonable to ensure that he was able to maintain his house and minimise any soft tissue damage to his hand. Ms Jodrell further recommended that the plaintiff have assistance with lawn mowing. The plaintiff has claimed one session of lawn mowing every three weeks at a cost of $45 per session, which is a weekly cost of $15. It appears that the plaintiff's parents are currently attending to gardening, yard care, heavy domestic cleaning and lawn mowing as the plaintiff lives with his parents. There was no evidence as to whether and when the plaintiff intends to move into his own accommodation. However, he is now 27 years of age and will most likely wish to move into his own accommodation in the near future particularly if he finds suitable employment.
The plaintiff has claimed a total amount of $50,390 in respect of damages for future paid or gratuitous services, which is based on 1.5 hours per month gardening and home yard care at $50 per hour, general domestic assistance of one hour per week at $26.50 per hour and lawn mowing every three weeks at a cost of $45 per session. No evidence was led regarding the cost of these services as claimed by the plaintiff and they differ from what Ms Jodrell has estimated the costs to be. The amount claimed by the plaintiff is for paid or gratuitous services. The plaintiff is likely to require one hour per week of domestic assistance even if he continues to live at home and the assistance is supplied by his family. At the very least, his family are likely to be doing chores that the plaintiff would have done but for his accident. The same may be applicable to gardening and home yard care, although there was no evidence of how much the plaintiff assisted with this prior to his accident. I accept that the plaintiff is only likely to require assistance with lawn mowing should he move into his own accommodation and should this have a lawn. Counsel for each of the defendants submitted that I should allow a round figure of $10,000 for future paid or gratuitous services. I propose to allow a figure based on the estimates of hours and costs provided by Ms Jodrell with a 20 per cent discount in respect of the future costs of the lawn mowing as the plaintiff currently does not need these services and no evidence of his future plans was presented. However, there is no reason why the plaintiff should not have a lawn at some stage in the future. One hour general domestic assistance per week at a cost of $16.50 per hour (multiplier 846.9) amounts to $13,974 and 1.5 hours per month gardening and home care at $32.95 per hour ($11.40 per week x multiplier 846.9) amounts to $9,655. A session of lawn mowing every three weeks at $45 per session amounts to $12,704 ($15 per week x multiplier 846.9). I have reduced this amount by one third to $10,163. This is a total amount of $33,792 for damages in respect of future paid or gratuitous services.
Future miscellaneous expenses
The parties agreed that the plaintiff should be awarded damages in respect of the items of equipment that Ms Jodrell recommended the plaintiff should have to assist him in carrying out daily tasks. The costs of these items (items 13.1 – 13.10 of the Revised Plaintiff's Schedule of Damages – Exhibit 33) amount to $1935.45. The agreed items include a steering wheel spinner for a modified car. However, the defendants were only prepared to allow a proportion of the costs of a remote six function signaller unit and of driving lessons for a modified motor vehicle. The proposed reduction seems to be based on an argument that the plaintiff did purchase and drive a manual car at some stage after the accident, presumably as a learner driver, and was not unable, but only reluctant, to use his right hand for driving. However, the six function signaller unit was recommended by Ms Hocking to allow the plaintiff to safely drive a car and without pain or discomfort. I see no reason why only a proportion of the costs of this item should be allowed and include the full costs of the signaller unit which are $1,800. The costs of $850 in respect of driving lessons on a modified vehicle and the vehicle inspection costs of $80 were also substantiated by Ms Hocking and I see no reason to disallow them. This adds up to a total amount of $4,665.45 for future miscellaneous expenses, rounded down to $4,665.
General damages
As regards the general damages to which the plaintiff should be entitled I take into account that he was still a very young man at the time that the accident happened. The plaintiff is psychologically very affected by the loss of a healthy looking and normally functioning hand. In addition it is his right hand which was his dominant hand, and he said in evidence that people are startled when he holds out the left hand to shake hands. The plaintiff stated that he no longer likes to go out or take the bus, as he is conscious of the way his hand looks. He also described that his social life has been reduced considerably and expressed a reluctance to go out with friends. The plaintiff should not allow the shape of his hand to dominate his life and outlook, as he is a good‑looking young man, who appears to have an open and friendly personality and a sense of humour which came to the fore when he described that the manual car that he had purchased now looked good standing in the drive way. However, the reality is that it is difficult for a young man to come to the realisation that his personality and outlook can overcome his disability in one limb and I appreciate that to him the loss of his pre‑accident hand functions and looks is an overwhelming factor which dominates his life and outlook.
The evidence also clearly establishes that the plaintiff has lost a substantial part of his right hand function. Dr Chong put it at a 47 per cent disability of the hand and a disability of between 73 per cent and 85 per cent of each of the fingers. The plaintiff is no longer able to grip, pinch or carry with his right hand and only has a limited support function with his thumb, wrist and forearm. The pincher grip between the thumb and the stump of the index finger only allows him to grip very light objects. This has clearly severely curtailed the plaintiff's ability to perform basic steps of hygiene and looking after himself which other people take for granted. The injury has also taken away the plaintiff's ability to have a wide range of choice in what employment he wishes to pursue and has deprived him to a large extent of the enjoyment and satisfaction of doing a good job at work. The plaintiff's opportunity for social interaction which permanent employment usually provides has also been reduced. The plaintiff is no longer able to partake in sporting activities on a casual basis such as baseball or football, as he liked to do with his friends. He will have difficulty in driving a normal car which will restrict him to driving his own modified car.
In addition, the plaintiff had to deal with the shock of seeing his fingers amputated and still suffers from post‑traumatic stress. He had to endure two operations and physiotherapy and exercises with his hand which he found painful. The plaintiff still experiences pain on an intermittent basis and has had to resort to medication to be able to sleep. It is likely that the plaintiff will experience pain and discomfort from time to time if he is rehabilitated into the work force. Even if he finds a position where he can execute all his duties without pain or discomfort, it is inevitable that he will knock his hand from time to time or apply it over zealously so that it causes pain. The plaintiff is also likely to have an ongoing battle to stay positive in light of the various setbacks in finding work and dealing with other people which will inevitably be presented to him by reason of his disability.
Taking into account all of the above factors and the evidence generally, I am of the view that the plaintiff is entitled to the amount $100,000 in respect of damages for pain and suffering and loss of amenities.
Summary of damages
The plaintiff is entitled to the following damages against the defendants:
Future loss of earning capacity $254,379.00
Past loss of earning capacity $101,327.00
Interest on past loss of income $512.00
Fox v Wood component $13,441.00
Past loss of superannuation benefits $8,175.00
Future loss of superannuation benefits $19,865.00
Vocational rehabilitation assistance $20,000.00
Past travelling expenses $3,827.00
Future travelling expenses $1,000.00
Past medical and rehabilitation expenses $80,618.00
Future medication expenses $4,564.00
Future general practitioner attendance expenses $4,901.00
Future surgery and injection expenses $5,500.00
Future specialist attendance expenses $7,352.00
Future clinical psychologist attendances $2,304.00
Future hand therapy/physiotherapy $5,147.00
Past gratuitous services $22,650.00
Interest on past gratuitous services $1,354.00
Future paid and/or gratuitous services $33,792.00
Future miscellaneous expenses $4,665.00
General damages $100,000.00
TOTAL$695,373.00
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