Scott v Boral Timber Tasmania Pty Ltd
[2000] TASSC 120
•30 August 2000
[2000] TASSC 120
CITATION: Scott v Boral Timber Tasmania Pty Ltd [2000] TASSC 120
PARTIES: SCOTT, Peter
v
BORAL TIMBER TASMANIA PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 209/1993
DELIVERED ON: 30 August 2000
DELIVERED AT: Hobart
HEARING DATE/S: 3, 4, 5, 8 and 9 May 2000
JUDGMENT OF: Crawford J
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiff: R W Pearce & G L Jones
Defendant: J L Parrish & N Sweeney
Solicitors:
Plaintiff: Douglas & Collins
Defendant: Page Seager
Judgment ID Number: [2000] TASSC 120
Number of paragraphs: 33
Serial No 120/2000
File No 209/1993
PETER SCOTT v BORAL TIMBER TASMANIA PTY LTD
REASONS FOR JUDGMENT CRAWFORD J
30 August 2000
On 10 July 1990 the plaintiff was employed by the defendant as a plant operator at its premises at Longreach, when he suffered an injury to his back as a result of an accident arising out of and in the course of his employment.
At the premises an export woodchip plant was operated. It was on the banks of the Tamar River so that woodchips could be loaded into ships direct from large storage heaps. Logs were brought to the premises by trucks and piled in rows in a large storage yard, about as big as a football ground. When required, logs were taken from there to the chipper. However, some of the logs were too big for the chipper and first had to be split.
The operation whereby logs were split was carried out in the storage yard on a concrete area, referred to in evidence as the splitting pad. Describing it as rectangular, the plaintiff estimated the dimensions of the pad as 40 feet long and 20 feet wide. Mr Garry Preece thought its width was greater than that, because logs were laid across its width and most logs were 30 feet long. I will describe its length as if on a north south axis. Along and next to the western side of the pad, one of its longer sides, was a large heap of logs, referred to by the plaintiff as bed logs. They were used as a backstop against which logs were pushed when being split.
Two machines were operated in the course of the splitting, a TCM and a larger Komatsu. A photograph of a TCM was tendered in evidence. It was an articulated four-wheeled vehicle, the rubber tyres of which the plaintiff thought were about six feet high. At its front were forks, one at each side, which could be slid under a log or logs and a clamp brought down on top of the load, thus securing it for transportation. The TCM was used to place logs on the splitting pad for splitting by the Komatsu, to remove the split pieces from the pad and place them in storage piles and to push away rubbish generated by the splitting operations.
The Komatsu was much bigger than a TCM, perhaps twice the length and capacity. It was also articulated with four wheels and rubber tyres and could carry logs. At the front of it, on its forks, could be attached a splitting spear, which the plaintiff described as about 20 feet long and wedge-shaped. The spear could easily be attached and detached. It had to be detached if the operator wished to use the Komatsu to carry logs with its forks.
The plaintiff was driving a TCM at the time of the accident, in the course of splitting operations. The system of work was as follows. He used the TCM to place a number of logs on the splitting pad for the purpose of being split by the Komatsu, which was operated by a fellow employee, Doug Cassidy. The splitting of those logs was described in evidence as a splitting cycle. The logs were placed at right angles to the pile of bed logs, with the butts pointing away from the pile (towards the east) and the narrower ends up to it (towards the west). The logs were placed on the pad largely from the southern side of it. The number of logs which were placed there for a splitting cycle varied, depending on their diameter and structure. The plaintiff said that possibly up to 15 might be placed there, depending on their diameter. If particularly large or awkward logs were involved, there might only be two to five logs on the pad. Short logs were placed there on their own.
It was the system that the operator of the Komatsu would use the spear to split those logs, simply by putting the wedge-shaped spear against the butt of each log and driving forward into it. Some logs split cleanly. Some shattered into pieces. Some logs required more than one splitting action. The Komatsu was articulated and the spear could therefore be used to move logs and pieces of logs to one side or another.
In the course of a splitting cycle, the TCM was used to pick up the split pieces and carry them away to nearby stockpiles. The plaintiff gave as an example five logs on the splitting pad, of which three split perfectly but two shattered or pieces broke from them. As the operator of the TCM, he would sort the various pieces into sizes and put them into piles that the TCM could conveniently lift, with shorter pieces centralised. He would then lift a load of pieces. Before carrying it away he would give it a shake, through the steering wheel, to cause small or loose material to drop onto the splitting pad, rather than have it spread throughout the yard. Split material was removed to the south of the pad. Essentially, therefore, the TCM moved onto and off the pad at its southern end, except when sweeping rubbish away. When all of the split material, which could conveniently be carried by the TCM, had been taken to the stockpile, rubbish from the splitting operation remained on the splitting pad.
The plaintiff was asked how many runs with the TCM were necessary for the removal of the split material produced in one splitting cycle. His evidence was that as many as it would take. Poor quality logs would require many more, but usually between about five and ten runs were required.
An aim was to recover as much of the split material as possible. However, there would always be left on the splitting pad remnants of the splitting operation which were too small to be conveniently carried away by the TCM. There was always other debris, such as rot and bark. It followed that as a splitting cycle proceeded, the amount of rubbish on the splitting pad increased. As the TCM worked away, it had to be driven over rubbish on the splitting pad. It was the system, and usual practice, that once all the recoverable split material had been carried away by the TCM, the rubbish would be swept from the pad before the next lot of logs was put in place for splitting. However, the sweeping away of rubbish did not happen at the end of every splitting cycle without fail. The plaintiff said that if all the logs had split cleanly, without leaving a lot of material on the ground, so that there was nothing to cause any concern for the operator or machine, he would not sweep. But if a sweep was needed, he would do it.
The sweeping of rubbish was usually carried out by the TCM's operator employing a broom-log, which was a log with slots cut in it for the forks of the TCM. By its use, rubbish could be pushed along in front of the TCM into a nearby rubbish heap, adjacent to the northern side of the splitting pad. If the broom log happened not to be available a short log, due for splitting, would be selected, pinched on the forks and pushed along the ground in front of the machine.
The evidence of both the plaintiff and Mr Preece established that it was the practice to sweep away the rubbish at the end of a splitting cycle, but not during it. To do so during it was in any event difficult, because there would be logs, split and waiting to be split, lying on top of and among the rubbish. It was not practical to use the broom log, until all the logs had been split and the recoverable material had been removed.
The only witness to give evidence of the circumstances of the accident was the plaintiff. It is likely that no-one else saw what happened. He said that Mr Cassidy was splitting with the Komatsu and he was in attendance driving a TCM, as he usually did when working with Mr Cassidy. It was a day like any other and towards the end of a splitting cycle. It was possibly his last grab of split material in the cycle, or almost the last one. He had picked up only a small load of such material and had driven well across the pad, towards the northern end, to do so. He then reversed slowly across the pad towards its southern edge. In answer to an interrogatory he described the speed as something similar to a walking speed. In the course of reversing over rubbish he felt the back of the machine go up. He was used to going up and down over debris from the splitting operations, but on this occasion the TCM went higher than normal and then came down hard. He was lifted from the seat and his head struck either the roof of the cab in which he was sitting or the window beside him. His bottom came down either on the arm rest of the seat or a part of the seat where the arm rest was attached. He said that the seat was very similar to a typist's chair with arms. He immediately suffered excruciating pain and first thought that he had been impaled on something.
I find that the accident occurred in the way the plaintiff described, as I have just set out. He was questioned at length concerning the finer details, and I do not have as much confidence about accepting all of what he said about them. I say that partly for two reasons, one being that the accident occurred ten years ago and his memory of the detail is likely to be poor, and the other is that I gained the impression that he was reconstructing and at times confabulating concerning detail.
I do not think that the plaintiff gave any clear evidence of the distance over which he had reversed before suffering his injury. However, in an answer to an interrogatory he said that it happened "in a relatively short distance of approximately 15 - 20 metres from the split logs" while he was "reversing out with the split log material". It was pointed out to him in cross-examination that upon the basis of his evidence of distances (he had said that the splitting pad was 40 feet long) he must therefore have been off the splitting pad and away from the area where splitting was carried out. His response to that was that if the measurements were right he would have been, but the measurements were obviously not right. By inference he was maintaining that the accident occurred on the splitting pad. I have difficulty finding positively that it did, having regard to the care with which interrogatories are often answered.
His evidence was that having suffered excruciating pain he started to move again and "that's when I looked down around me again and there it was down beside me … a rather large piece of log". He said that "part of the log was buried in amongst the debris … so there was no way I could estimate the full diameter of the darn thing". He claimed to have had a clear view of it as it was straight down beside him and he only needed to look out the window and straight down. However, he could not remember whether it was to the right or left side of him. It was between a front and back wheel, he said, requiring him to steer so as to avoid it when he moved the machine again.
Plainly the plaintiff assumed that it was that piece of wood which was the cause of it all and I also must conclude that it was. His evidence was that the piece "must have been short", but it appeared to me that he was assuming that to be so, upon the basis that if it was no longer than between six and eight feet it might have fallen from the forks while being carried. Mr Preece's evidence was that the forks were about three metres apart and that pieces shorter than that could not be picked up. The plaintiff said that it could have been between six and eight feet long, but there was no way of knowing exactly. I concluded he had little idea. In his statement of claim he described it as being between three and six feet long. He was asked in examination-in-chief whether he was able to judge its diameter. Initially he said that "part of the log was buried in amongst the debris … so there was no way I could estimate the full diameter." He said later that "it was a fair diameter on one end, it was not the same diameter at the other end, it was a piece that had been basically broken off, dropped away from, it looked like it had dropped away from the material that I had been carryin' out at one stage". For a reason he did not explain, he concluded that he had picked it up on the forks, along with other material, but had then dropped it in the course of transporting the load. I infer that his reason was based on the position of the piece, that is that the piece was not located where logs had been split by the Komatsu but some distance to the south.
He was pressed further by his counsel to describe its diameter. He was reticent about doing so, saying that the events were ten years old and that when he looked down he was only seeing part of the piece among the bark and other debris from the splitting operation. He was pressed again, this time by me, to say the height of the piece over which he had driven and from which the TCM had come down. He answered "I don't know your Honour, it was a fair height to throw me out of the seat but -". His counsel then asked if he could demonstrate the diameter with his hands. In a demonstration which I felt was based substantially on guesswork, he held his hands about 80 centimetres apart and said:
"It was a large chunk of wood, it was not anything, it was not a round piece of log, it was not a piece of log as in a piece of log, it had obviously been, part of it had been split."
I commented that he had just demonstrated a distance of about 80 centimetres and asked whether he was saying that was the height of the piece or just its width as he looked down on it. He replied with apparent reconstruction:
"Well the height of it your Honour, it had to have been a fair height, it was just a large chunk of material that had been split and broken off."
He explained that "you can only see what is visible on the surface, not what's under it". After that he accepted that the diameter of the piece was about 80 centimetres "as viewed from above". However, in cross-examination he was asked whether "that 80 cm what you're saying to the court yesterday or the day before was there was 80 cm of give or take whatever it may be, and I am not pinning you to 80 cm precisely Mr Scott, there's 80 cm above the ground", and he agreed. On being asked, "You're telling the court that when you reversed this particular machine on that particular day you did not see firstly a piece of wood six to eight feet long and about 80 cm above the ground, that's what you say?" He answered, "That's what I said".
Faced with his evidence that the piece of timber may have been as long as six to eight feet and as high and as wide and high as 80 centimetres, he was pressed to explain how he had come to drive over it without seeing it. He accepted that it may have dropped from a load of split material he had been carrying earlier in that splitting cycle and that he may have missed seeing it as he was going forwards and backwards on to and off the splitting pad. "It is possible I have dropped one or I have missed it completely, that I didn't see it in amongst all the other debris", he said.
I conclude that it was extremely unusual for rubbish in the form of a piece of timber as large as that described by the plaintiff, to be lying on the ground in the path of the TCM as it was reversed away from the splitting pad. Mr Preece confirmed in his evidence that rubbish was generated in the course of splitting operations. He said that it included what he described as slithers of about fence post size, which might be six feet long and could be six to ten inches thick (15 to 25 centimetres), far smaller than the piece described by the plaintiff. Mr Preece also referred to chocks of wood which could be "up to 200 or 300 round", by which I presume he meant 20 to 30 centimetres round. He referred also to rot and bark. Logs which split well produced little or no rubbish. He confirmed that material could drop from the forks of the TCM while being carried away from the splitting pad. Having described the various forms of rubbish and material which might lie on the ground, he was asked what he would do if he came across it in front of him when he was driving the TCM. He said if he could he would clean it out of the way, and he specifically included pieces the size of a fence post. He explained that the bottom forks were fully adjustable and could be tipped down to an angle of 90 degrees and used to either push or skid material out of the way, usually to the right because it was undesirable to put such material up against the bed logs. The plaintiff also gave evidence of moving large material out of the way with the forks.
It was Mr Preece's evidence that when reversing the TCM he usually had a clear view of where he was going and whether or not there was rubbish on the concrete and the extent of it. However, the colour of an object could match what was already there and the operator could be deceived. He agreed that the operator could usually see pieces like fence posts and that if he saw them as he went back he would push them out of the way as he drove in for the next load.
Mr Preece had often driven backwards over rubbish and he added that he had backed over chocks, but probably not pieces of timber as big as the one described by the plaintiff. Nevertheless he thought it was possible that an operator might not see such a large piece of timber. In the course of closing addresses there was a debate about what Mr Preece meant by that. It was not explored with him and I do not think his answer can be given much probative value in favour of the plaintiff. The fact that the plaintiff suffered his injury in the way described by him suggests in itself that it is possible not to see a piece of timber as large as the one he in fact drove over. No doubt the nature and extent of the lookout being kept by the operator would be extremely important.
The plaintiff's claim against the defendant for damages was based on a breach of an implied term of the contract of employment, negligence and breach of statutory duty. As is usual in actions by employees against employers arising out of personal injuries, particulars of the basis of his claim were expressed in a variety of ways. As submitted on his behalf at the trial, its essence was that the defendant failed to take reasonable care to provide and maintain a safe system and place of work in that it ¾
·failed to take reasonable precautions for his safety by requiring, allowing or permitting him to drive the TCM over the rubbish whilst working in the general area of the splitting operations;
·failed to take reasonable precautions for his safety by having in place a system of work within which, while operating the TCM, he would not have to travel over rubbish while manoeuvring split material;
·failed to take reasonable precautions for his safety by failing to have in operation a system of work which resulted in the clearance of rubbish from the general area of the splitting operations;
·failed to assign an additional employee to keep the general area of the splitting operations clear or free of log debris including rubbish;
·failed to take reasonable precautions for his safety by failing to ensure that the general area of the splitting operations was kept clear of rubbish on a regular or more frequent basis, thereby eliminating the risk of injury to him;
·failed to allocate or allow him sufficient time in which to clear rubbish from the general area of the splitting operations while undertaking his usual duties of manoeuvring logs and split material.
The defendant admitted that it owed to the plaintiff a duty to take reasonable care to provide and maintain a safe system and place of work and proper and safe equipment. Counsel for the plaintiff referred the Court to a number of well known authorities concerning the scope of the duty and the standard of care it required. The defendant was obliged to take reasonable care to avoid foreseeable risks of injury, that is to say risks that were not far-fetched or fanciful. Wyong Shire Council v Shirt (1979 - 1980) 146 CLR 40 at 47. In this case the evidence of both the plaintiff and Mr Preece established that jarring injuries caused by driving over large pieces of wood were reasonably foreseeable. Mr Preece's unchallenged evidence was that they were always a concern. He had been jarred by driving over a piece of wood and he had quite often driven over a log or piece of wood. He explained that notwithstanding that the seat of a TCM was suspended, it could bottom out causing the operator's back to be jarred.
In deciding whether there has been a breach of a duty of care, the Court must ask itself whether a reasonable person, in the defendant's position, would have foreseen the risk of injury to the plaintiff and other employees engaged in operating machinery in the yard and particularly in the course of splitting operations. The answer is plainly in the affirmative, and the question for the Court is then to determine what a reasonable person would do by way of response to the risk. The perception of the reasonable person's response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action. Wyong Shire Council v Shirt at 47.
Mr Preece worked at the defendant's premises for 23 years until 1999, although the identity of the employer changed over the years. At the time of the plaintiff's injury he was a leading hand and operated machines in the log storage yard. His work included operating a TCM. He was also a shop steward for his union at that time and in that capacity he was a member of the safety committee for the entire plant. The committee had representatives of the employer, the unions and the workforce. According to Mr Preece, its responsibility was to analyse accidents, to look at potentially hazardous areas, to report to management and to change things. Minutes of meetings were kept. Meetings took place once every month or six weeks. It was also Mr Preece's evidence that safety was stressed as a primary concern at the worksite. Every member of the workforce was a member of a union and the management was responsive to union demands and to approaches from the safety committee in relation to a safety issue and would attempt to rectify a problem. Although jarring injuries were always a concern, Mr Preece recalled no complaints made to the safety committee about them and there was no other evidence that there were any such complaints. The plaintiff gave evidence of complaining about risking damage to machines because they had to be operated over rubbish, but not of complaining about a risk of injury. In cross-examination he was challenged about whether he had ever complained to the safety committee and eventually, after prevarication, he did not claim that he had. He agreed that one of the over-riding policies at the site was safety and included within it was an over-riding policy to keep the site, including the splitting area, clean. He agreed with the proposition that "management came down like a ton of bricks if there was logs or mess throughout - in general terms throughout the logging yard", adding that "it was an unsafe practice". Cleanliness in the splitting area was of prime importance, he said.
Apart from the introduction of a system of rotating jobs and multi-skilling the workforce, following the plaintiff's accident there was no change made to the system of work with regard to splitting operations at the defendant's premises. I have referred to evidence that machine operators could be jarred, but there was no evidence of anyone other than the plaintiff having suffered injuries from jarring caused by operating a machine over material in the course of such operations.
The system the defendant had in place and continued to have in place at least until Mr Preece left his employment in 1999, for removing or reducing the risk of jarring injuries in the course of splitting operations, provided for the area to be broomed at the conclusion of each splitting cycle, except occasionally when the operations of one cycle had been so clean as not to require brooming to be carried out. During the course of a splitting cycle, the safety of the system depended on the TCM operator keeping a lookout for large pieces of rubbish and other material while on and in the vicinity of the splitting pad, which may have fallen to the ground.
At the trial the plaintiff argued that the system of work which was used on the premises prior to 1988 was a safer one and should have been the system employed by the defendant at the time he suffered his injury. For a period of time up until 1988 the splitting operations were contracted to Lloyds North, for whom the plaintiff worked for a year or two until the contract was terminated and he was employed instead by the defendant. The evidence of the plaintiff and Mr Preece established that the system of work employed by Lloyds North was the following. A caterpillar tracked bulldozer was used instead of the Komatsu. Because of its tracks, it could not work on concrete. The splitting pad was made up of bark, sawdust, woodchips and other debris from the operations. All of that material was compacted sufficiently for the bulldozer to work on top of it. The pad may have been of about the same dimensions as the concrete pad subsequently used by the defendant. In association with the bulldozer, two Volvo wheeled log loaders were used to do the work which was subsequently done by only one TCM for the defendant. They operated from opposite ends of the splitting pad. One placed the oversize logs on the pad for splitting by the bulldozer and the other carried the split material away. An advantage was that a Volvo had a greater capacity than a TCM and could therefore carry a greater load. Another advantage was that the loader, which was being operated for the purpose of carrying split material away, did not cross as much of the rubbish and debris produced by the splitting operations as did the TCM operated by the plaintiff on the day of his injury. Mr Preece said that the loader probably only had to drive halfway across the pad, to about the middle of it, to pick up split material and reverse away. The loader which placed the logs on the pad from the other side of it, would also assist by pushing split material up into a heap, making it easier for the other loader to grab hold of the material. He explained that in the Lloyds North situation both of the machines probably worked in the middle of the pad (but neither had to drive to the other side of it). At some point, when the operator thought it was required, the first loader would sweep away the rubbish. It appears that there was no defined splitting cycle in the Lloyds North operation. The plaintiff's evidence was that the operators would not keep piling logs in the one area without extracting the rubbish. Once the rubbish built up to where it interfered with either the loader putting logs in or the loader extracting split material, the operator of the loader putting the logs in would use the log his machine happened to be carrying, in the way of a broom log, to sweep the rubbish to one side.
A disadvantage of the Lloyds North system was that it required three machines and three operators and I infer that it must have been a much more expensive operation. Arguably another disadvantage was that there was no real system for sweeping rubbish away, such as at the end of a splitting cycle, the decision simply being left to a loader operator to exercise his own judgment. A further disadvantage of the Lloyds North system was the nature of the splitting pad itself. It was not concreted. It consisted of compacted material including rubbish. Sweeping and skidding large material away was therefore more difficult. There was a risk that objects would be caught in the pad material and stick out of it. Mr Preece was asked whether, on the Lloyds North pad, it was possible to push the fence post sized slithers to one side or whether the surface of the pad made that difficult. His answer was that "it did make it difficult on that surface because it wasn't a hard surface so usually they would bury themselves if you tried to push them." That was an impossibility on the concrete surface of the defendant's splitting pad, he said.
I am not persuaded that a reasonable person in the defendant's position would have put in place a system similar to the Lloyds North system. It would have required the employment of another machine and operator, thereby incurring substantially increased costs and although lessening the distance across the splitting pad over which the respective machines were required to be driven and consequently reducing the quantity of debris over which they had to travel, I am not persuaded that the risk of injury would be significantly reduced as a result. The risk of injury arose because on occasions relatively large pieces of timber came to be lying on the ground. They were a direct result of the splitting operations. Some of them were picked up by the TCM and carried away. In the course of picking them up the operator of the TCM needed to avoid driving over them, as the driver of the Volvo loader working for Lloyds North also needed to do. Some of them, although large, were too short in length to be picked up by the forks and the operator, whether of the Volvo or the TCM, needed to avoid driving over them and, if appropriate, needed to push them aside if they were in the way. Others of them fell to the ground while being carried by the Volvo or the TCM as part of a load of split material being transported to a stockpile. It is likely that the piece which caused the plaintiff's injury, came to be on the ground in that way.
A piece of timber like the one which caused the plaintiff's injury could have been in the way of the respective machines operating within the Lloyds North and the defendant's systems. Whatever system was used it was inevitable that from time to time relatively large pieces of timber would come to be lying on the ground between where a load of split material was picked up and where it was stockpiled. As I have said, it is likely that the piece of timber dropped out of a load of split material being carried by the plaintiff's TCM to the stockpile. It may well have fallen out of the immediately preceding load. No safe system of work which reasonably should have been adopted would have prevented such an event occurring. To avoid or reduce the risk of injury from such pieces of wood, the system in place, and I regard it as having been a reasonable one in the interests of safety, provided for regular brooming of the area and, between brooming, for the operator of the TCM to keep a lookout for large pieces of material and to steer clear of them or, if necessary, to move them out of the way.
It is highly likely that a substantial cause of the plaintiff's injury was his failure to keep a proper lookout. In any event, he has failed to persuade me that the defendant failed to take reasonable care to provide and maintain a safe system and place of work or that there is any other basis for concluding, on the balance of probabilities, that the defendant should be found to be liable for damages for negligence, breach of an implied term of the contract or employment or breach of statutory duty.
For these reasons there will be judgment for the defendant.
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