Singleton Transport Industrial Service Pty Ltd v Ford

[2000] NSWCA 237

CITATION:	Singleton Transport Industrial Service Pty Ltd v Ford [2000] NSWCA 237
FILE NUMBER(S):	CA 41016/99
HEARING DATE(S):	22 August 2000
JUDGMENT DATE:	29 August 2000
PARTIES :	Singleton Transport Industrial Service Pty Ltd - Appellant David John Ford - Respondent
JUDGMENT OF:	Giles JA at 1; Fitzgerald JA at 30; Foster AJA at 31

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 446/98
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

COUNSEL:	J D Hislop QC & W F Chipchase - Appellant J E Sexton SC & J M Hennessy - Respondent
SOLICITORS:	Sparke Helmore, Newcastle - Appellant Bale Boshev & Associates, Newcastle - Respondent
CATCHWORDS:	NEGLIGENCE - contributory negligence - damages - employee injured when chain dog unexpectedly opened - finding of worn chain dog and unsafe system of work upheld - but evidence of pre-existing condition potentially affecting earning capacity - conflict over fitness for work and loss of earning capacity - apparent error in not allowing for pre-existing condition - if not, reasoning not apparent - new trial as to damages. ND
DECISION:	(1) Appeal allowed. (2) Set aside verdict and judgment that the defendant pay to the plaintiff the sum of $404,957.15. (3) Remit the proceedings to the District Court for a new trial limited to assessment of damages. (4) Respondent pay the appellant's costs of the appeal but have a certificate under the Suitors Fund Act.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41016/99

DC 446/98

GILES JA

FITZGERALD JA
FOSTER AJA

Tuesday 29 August 2000

SINGLETON TRANSPORT INDUSTRIAL SERVICE PTY LTD v FORD

JUDGMENT

1    GILES JA: The respondent was employed by the appellant as a crane driver. He was injured when he was struck in the face by a piece of pipe used as an extension to the handle of a chain dog when the chain dog unexpectedly sprang open as he was about to release it. The trial judge held that the appellant was in breach of its duty to provide a safe system of work and that the respondent was not contributorily negligent, and awarded the respondent damages of $404,957.15.

2    The appellant appealed in relation to liability, contributory negligence and damages.

Liability

3    A chain dog is an articulated lever used for tensioning a chain securing heavy equipment on a vehicle. Two hooks on the chain dog are engaged in links of the chain. The geometry of the chain dog is such that pulling the handle down to the closed position applies tension to the chain and, when fully closed, the chain dog is held in the closed position by the tension. A small movement of lifting the handle to open the chain dog will take it from the point at which the tension holds the chain dog closed and to the point at which the tension causes it to open violently. Commonly those using the equipment use a “cheater pipe”, a length of pipe of suitable diameter slipped over the handle of the chain dog to provide increased leverage and give greater tension when closing the chain dog and greater control when opening it.

4    The respondent participated in loading a transformer on a float for transport by the appellant. The driver of the prime mover, Mr Alan Watson, secured the transformer using chains and chain dogs. When the vehicle arrived at its destination the respondent assisted Mr Watson and another crane driver to release the chains. He obtained a pipe and put it over the handle of a chain dog with a view to unwinding the loose end of the chain which, as was customary, was wrapped around the handle of the chain dog. He stood to the right hand side of the chain dog and held the pipe with his left hand. As he touched the chain the chain dog suddenly opened. It twisted around, the handle flew up, and the pipe hit the respondent in the face.

5    The particular chain dog was not inspected following the accident and was not available for expert opinion or at the trial. At the time it was probably put back on the float with the other chain dogs, and it could not be identified. The appellant did not have a regular system of inspection of the equipment. The judge found that it was more probable than not that the chain dog was worn and that its defective condition in this respect caused the accident. Hence the holding that the appellant was in breach of its duty to provide a safe system of work.

6    There was abundant evidence that chain dogs were subject to wear with use, and that when worn a chain dog was dangerous because with wear the geometry was affected so that, although apparently closed, it could be at a point of balance where the tension could cause it to spring open rather than be held closed. In the words of Dr Neil Adams, who gave expert evidence in the respondent’s case, when there was wear “the slightest disturbance to that fairly precarious equilibrium can cause it to fly open”. Mr Watson spoke from many years experience in agreeing that a worn chain dog could come undone unexpectedly and not as intended when it was being opened.

7    There was evidence that a chain dog in good condition could spring open from jolting during travelling, although a chain dog in good condition was less likely to do this than a worn chain dog. If it did come open in this manner the chain would then be slack. There was a practice of holding the handle of the chain dog while unwrapping the chain, intended to guard against unexpected violent release, but if the chain dog was worn the likelihood of unexpected release was increased.

8    The appellant first submitted that there was error in the judge’s findings as to the manner in which the respondent came to be injured (see para 4 above). It said that the descriptions of the accident in forms signed by the respondent after the accident were to the effect that he was hit in the face by the pipe after it slipped off the chain dog, without any reference to the chain dog opening unexpectedly, and that the respondent’s description of the accident as recorded by Dr Adams was also not consistent with his evidence at the trial. I do not see any material difference between the description given to Dr Adams and the respondent’s evidence at the trial, and the forms were filled out by the respondent’s wife while he was still distressed from the accident and were quite adequate for their purpose without the elaboration said to be lacking: indeed, one would think that the pipe slipping off the chain dog with sufficient force to break the respondent’s nose would have carried with it some untoward event in the opening of the chain dog. The judge accepted the respondent’s account of the accident, and I do not think any ground has been shown for overturning his finding.

9    The appellant then submitted that there was error in the holding that it was in breach of its duty to provide a safe system of work. Although elaborated in various ways, this came down to the submission that the respondent had not established that the chain dog was worn so as to have produced the accident. It was said that Mr Watson had given evidence that he had checked the chain dogs when tying down the transformer and that “They appeared very good to me”, and that the respondent had not complained to the appellant at the time, or included in the forms earlier mentioned, that the chain dog was faulty. It was said that the fact that a chain dog in good condition could come open was confirmed by the practice intended to guard against unexpected violent release, and that unexpected and unintended opening occasioning injury to the respondent did not necessarily mean that the chain dog was faulty.

10    I do not think the submission should be accepted. Mr Watson agreed that in tying down the load the condition of the chain dogs would not be his first thought, that he just made a judgment about whether or not a chain dog could have looseness in its pins, and that a chain dog could appear to him to be secure but in fact be faulty. It was plain that a worn chain dog was dangerous, because it might open unexpectedly in the manner in which the particular chain dog opened. A chain dog in good condition should not have done that: although it could have come open under an external influence such as jolting in travel, in that event the chain would have been slack. In the absence of the particular chain dog, the judge had to decide on the balance of probabilities whether the accident had occurred because the chain dog was worn or whether it had occurred as a far less likely instance of a chain dog in good condition somehow arriving at the precarious equilibrium to which Dr Adams referred, and it was well open to the judge to find that the former was the more probable.

11    In the circumstances in which the forms were filled out it was understandable that they did not include complaint about a faulty chain dog, which in any event the respondent had not been able to examine in order to see its condition. While the respondent could have complained to the appellant that his accident might have been caused by a faulty chain dog, he was covered by workers’ compensation and the judge accepted that for some time he did not think there was a permanent impairment of his working capacity, so it was again understandable that he did not make an issue of it.

12    The passage from Bradshaw v McEwans Pty Ltd cited in Luxton v Vines (1952) 85 CLR 352 at 358 is in point, reading in part -

“In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture … . But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise … .”

13    In this case, in my view, the reasonable and definite inference was open to the judge, and it should be upheld.

Contributory negligence

14    When addressing contributory negligence the judge said that the respondent did what a reasonable crane or truck driver would do when he was releasing the tension on a chain, “namely, he stood to the side, he put the pipe on the handle and held it down to prevent the sort of event that in fact happened”. The appellant submitted that the respondent could not have acted reasonably to protect himself, because the accident had occurred: if the respondent had been holding the handle down in accordance with the precautionary practice, being aware of the possibility (however remote) of untoward release even of a chain dog in good condition, the accident would not have happened.

15    I do not think that this takes adequate account of the respondent’s evidence underpinning the judge’s statement that the respondent held the pipe down to prevent the sort of event that in fact happened. In earlier describing the accident the judge had recorded as the respondent’s evidence, and had clearly enough accepted, that the respondent “went to remove the chain with his right hand and to hold the cheater pipe with his left, but as he touched the chain for the first time, the dog, as he said, ‘exploded’ … “. The respondent’s specific evidence was -

“Q. And this is not clear either, what did you actually do if anything with the chain when you reached across to it?
A. I only just go to put me hand to it and it just let go straightaway causing the whole --
Q. What let go?
A. The dog, I actually just put me hand on the chain and the dog released before I even got to manipulate the chain and turn sideways.
Q. Well it is as you’ve indicated at something of an angle --
A. Yeah.
-- at the moment?
A. Uh-huh.
Q. Well then as it released was the pipe still on the lever?
A. Yeah the whole thing came from underneath me hand and straight across me face.
Q. And why was it given that you had your hand on the lever, on the pipe - on the pipe on the lever that you couldn’t restrain the upward movement --
A. It happened so fast and the recall [sic: recoil?] was so quick I couldn’t hang on to the pipe or escape, I was in that area.”

16    In the light of this evidence, the respondent was acting in accordance with the practice and reasonably, but the “explosion” was so early and fast that he was unable to control the opening of the chain dog. The judge’s conclusion he was not contributorily negligent should be upheld.

Damages

17    The respondent suffered a fractured nose and cheek bone. He was in great pain, and bled profusely. In due course he underwent procedures to remedy his injuries, although he was left with nasal deviation, loss of the sense of smell, impaired taste, and a sinus condition. He was also left with a continuing headache from which he obtained moderate relief with large quantities of analgesics, and periods of a more intense throbbing headache with photophobia and phonophobia and lightheadedness.

18    The respondent was off work after the accident for about five weeks, and returned to work despite these symptoms. He worked shorter hours and had a few days off work in each fortnight because of the headaches. He remained at work for about eleven months. A particular incident then caused him to believe that, until then unknowingly, his capacity to work as a crane driver was impaired by loss of memory and concentration, and he was suspended from his employment because of the incident and while his condition was investigated. After some months his suspension was lifted, but the appellant was not prepared for him to work as a crane driver and did not offer alternative duties “as you can appreciate the risks involved for your own safety and the safety of others”. The respondent did not return to work.

19    In his evidence the respondent also complained of neck pain since his injury. He had had some neck pain prior to the injury, but said that the “degree of pain has just got a lot more”. His description was of a severe neck pain, although he said that the headaches were worse: “If you’ve ever suffered from chronic head pain I can assure you neck pain doesn’t even come close”. Based on the reports of Professor Ghabrial and Dr Isaacs, the judge found that the neck pain was not, or not wholly, attributable to the accident. The findings in this respect were stated thus -

“Dr Ghabrial and Dr Isaacs, whose reports were both put in evidence by the plaintiff, referred to what they call cervical stenosis, and they concluded, and I find this to be more probable than not, that this is a degenerative condition, an arthritic condition which was probably present before the incident in January 1997. While these may have been slightly exacerbated, they were conditions which would have developed in any event, and the neck pain of which the plaintiff suffers was not substantially a result of the injury on 21 January, although that may have caused a slight acceleration of that injury, and I take that into account.
So in conclusion, in relation to the injuries which Mr Ford has suffered, I am satisfied more probably than not as a result of the injury suffered in this accident, he suffered severe shock, laceration to the face and nose, a fracture of the nose and a deviation to the left hand side and a fracture to the cheek, concussion, some aggravation to underlying degenerative changes in the cervical spine, interference with sinus. That is the total of his injury.”

20    Neither the conclusion to which the judge referred, nor opinions as to the exacerbation, acceleration or aggravation to which the judge referred, are prominent in the reports of Professor Ghabrial and Dr Isaacs, although Dr Isaacs did say that the accident “aggravated the cervical canal stenosis”. Neither in the reports nor elsewhere was there evidence as to when or to what extent the neck condition would have developed absent the accident.

21    Professor Ghabrial considered that the respondent was not fit for any activities involving heavy lifting, excessive use of the upper limbs or excessive neck movements. Dr Isaacs considered that the respondent could not return to work as a crane driver, or perform any other heavy manual work or work which involved holding his head in one position for a prolonged period, turning his head from one side to another frequently, or working in confined places. Both these opinions were founded in part, it seems to a considerable extent, on the respondent’s neck condition, although Dr Isaacs referred also to the respondent’s “persistent occipital and frontal headaches”. Dr Woods, the respondent’s general practitioner, attributed the headaches principally to his neck condition, which she thought was connected with the accident, although also to the sinus condition and migraines not present prior to the accident, and considered that the headaches prevented the respondent from returning to work as a heavy machinery operator and that the neck condition precluded work involving lifting or “with the neck in any position except neutral for any period of time”.

22    The judge was provided with other medical and associated reports, particularly those of Dr Walker, Dr Holland and Dr Graham in which opinions were expressed that the respondent was fit for his pre-accident work. In expressing these opinions the doctors made no reference to a neck condition. He also had a report from Professor Fearnside which acknowledged the neck pain and headaches but saw no reason why the respondent “could not have continued working after [the accident]”.

23    There were significant issues for the judge to determine. Having found that the neck condition of which the respondent complained was not, or not wholly, attributable to the accident, but was a degenerative condition which would have developed in any event, it was necessary to consider whether the effect of the accident on the respondent’s earning capacity had been or would be productive of financial loss for some lesser period than to the normal retiring age or otherwise in an amount reflecting the pre-existing neck condition. The consideration had to assess the acceleration or aggravation (these may have been different things) in the passage from the judge’s reasons earlier set out, and any conclusion could not be reached without addressing when the neck condition would have impacted on the respondent’s earning capacity but for the accident and what its impact would have been (for example, would it have barred the respondent from the high earnings of a crane driver).

24    Consideration of these matters was all the more important when there was evidence to the effect that the accident had not affected the respondent’s earning capacity, and when the contrary opinions of Professor Ghabrial, Dr Isaacs and Dr Woods were at least to a significant extent founded on the neck condition. It was necessary to ask whether, given the conflicting evidence, there really was an impairment of the respondent’s earning capacity as a result of the accident, and if so whether apart from the acceleration or aggravation of the neck condition and whether by acceleration or aggravation of that condition. A reasoned conclusion, however brief the reasoning, required some reference to these issues.

25    One can have great sympathy for the judge. He was presented with a great many medical and associated reports, on their face conflicting and in many respects of uncertain meaning unless clarified by their authors. None of the doctors was called to give oral evidence or was cross-examined. The judge’s task in the consideration earlier mentioned was far from easy. Nonetheless it had to be attempted. Unfortunately, when addressing loss of earning capacity all the judge said, after stating that it was “clear that it is unlikely that the plaintiff could work as a crane driver, as he did before he suffered these injuries”, and that was “also clear that he is capable of some work”, was -

“While Mr Ford is unable to work as a crane driver, he is capable of a wide range of work although there is no evidence before me of that. I would assess that his capacity to earn the relatively high wages that he was receiving has been reduced by 50 per cent. On that basis, given the wages that he was earning at the time of the injury, his loss is $420,000 with a factor of 685.6 minus 50 per cent which I assume to be $244,760.”

26    This figure was for future loss of earning capacity: a few sentences later a figure was stated for past loss of earning capacity with the only narration, “in my view he has been capable of work but, as I have said, the loss of earning capacity is reduced by 50 per cent”.

27    In this assessment the judge apparently held that the respondent had suffered a 50 per cent loss of earning capacity as a result of the accident, effective for the remainder of his working life, without any allowance for the development of the neck condition absent the accident. The appellant submitted that the judge had failed to take account of the evidence as to impairment of earning capacity resulting from the respondent’s neck condition, or, if he had not ignored it, had failed to give any reasons explaining how he had taken it into account. It said, correctly, that although he had referred to the reports of Professor Ghabrial and Dr Isaacs, he had not mentioned the reports of Dr Walker, Dr Holland, Dr Graham and Professor Fearnside. And it was said that his error was pointed up by his reduction of the allowance for past out-of-pocket expenses by half the amount agreed to relate to the neck condition “in view of the fact that I have found that there was an aggravation of the neck injury but it was a pre-existing degenerative condition”.

28    The respondent suggested that the judge had included an allowance for the impact of the neck condition in the round figure of 50 per cent reduction in the capacity to earn the wages of a crane driver. Another possible explanation of the judge’s reasoning was that he was satisfied that the respondent had suffered a loss of earning capacity, notwithstanding the opinions of Dr Walker, Dr Holland, Dr Graham and Professor Fearnside, because of his experience in fact with the appellant; another was that he considered that the development of the neck condition would not have been such as to impact on the respondent’s earning capacity. The problem is that none of these explanations is to be found in the reasons, and the latter explanation would not sit well with the reports of Professor Ghabrial, Dr Isaacs and Dr Woods. I do not think it can be seen from the judge’s reasons whether he properly arrived at his assessment of damages for loss of earning capacity. He appears to have erred; if he did not, his reasoning is not apparent.

29    Regrettably, in my view, there must be a new trial in relation to damages. I do not think that this Court can embark on a reassessment in the circumstances I have described, particularly when the view taken of the respondent’s credibility may be material in the assessment. Some elements in the respondent’s damages were agreed, or included an allowance for the neck condition. At least some of them will have to be updated for the reassessment, and although I would expect agreement to continue I do not think that the new trial can be restricted to the amount of damages for loss of earning capacity.

30    I propose the following orders -

(1) Appeal allowed.
(2) Set aside the verdict and judgment that the defendant pay to the plaintiff the sum of $404,957.15.
(3) Remit the proceedings to the District Court for a new trial limited to assessment of damages.
(4) Respondent pay the appellant’s costs of the appeal but have a certificate under the Suitors Fund Act.

31    FITZGERALD JA: I agree with Giles JA.

32    FOSTER AJA: I agree with Giles JA.

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