Slattery v Beare, Brambles Aust Ltd & Fletcher No. DCCIV-96-1607

Lawrence Slattery & Bronwyn Slattery
v Ralph Beare, Brambles Australia & Another
[2001] SADC 44

Civil
Judge David Smith

Introduction

In this action the plaintiffs claim damages from the defendants for personal injuries, including a permanent brain injury, sustained by the first plaintiff, Lawrence Slattery, on the 29th December 1993. The injuries were sustained whilst he was working for a sub-contract engineering company, Blueline Engineering Services, which was engaged in maintenance work at the foundry complex of Castalloy Manufacturing Pty Ltd located at 76-92 Mooringe Avenue, North Plympton. Lawrence Slattery and Ian Hendy, of Blueline Engineering Services, were attempting to raise the height of a furnace when the claw on one of the two hydraulic jacks fragmented. A piece of metal struck Lawrence Slattery on the head, fracturing his skull and knocking him to the ground. It is alleged that the range of injuries which he sustained rendered him unemployable.
I introduce the parties and other participants and set out some preliminary findings as to the roles played by each.

Parties and other participants

On the 29th December 1993, the first plaintiff, Lawrence John Slattery (hereinafter referred to as “Slattery”), a Master Plumber, was working as a trades assistant on a casual basis for Farmon Engineering Services Pty Ltd, trading as Blueline Engineering Services (hereinafter referred to as “Blueline”). On that day, Blueline was engaged to raise the height of the furnace at the Castalloy premises.
The second plaintiff, Bronwyn Lee Slattery, is and was, at all material times, the wife of the first plaintiff.
The second defendant, Brambles Australia Ltd, trading as Brambles Equipment (hereinafter referred to as “Brambles”), at all material times carried on the business of, inter alia, a transport operator and transporter of heavy machinery and equipment. So too, on the 29th December 1993, at a different location in Castalloy’s foundry complex, Brambles was engaged in installing a furnace.
The first defendant Ralph Harvey Neil Beare (hereinafter referred to as “Beare”) was, as at the 29th December 1993, a rigger in the employ of Brambles and he was on site at Castalloy’s on that day. On this occasion, Brambles, by its employee Beare loaned Blueline two jacks and the ancillary claws (hereinafter referred to as “claws”, “toes”, “shoes”, “clip-ons”, “add-ons” or “slippers”) to assist Blueline to raise the level of the furnace.
The third defendant, Bruce T. Fletcher, trading as Fletcher & Son, (hereinafter referred to as “Fletchers”), at all material times operated a foundry at Gepps Cross. It is alleged that in or about September 1990, it made the shoe which fractured on the occasion of the accident the subject of this claim. It is further alleged that Fletchers made the shoe which was one of four such shoes for SES Holdings Pty Ltd, sometimes called SES Cranes (hereinafter referred to as “SES”). SES was liquidated in 1992 and it is alleged that at or about that time Brambles purchased SES’s rigging equipment, including the toe which ultimately fractured on the 29th December.
The named third party, Castalloy Manufacturing Pty Ltd (hereinafter referred to as “Castalloy”), operated a foundry complex at 76-92 Mooringe Avenue, North Plympton. On Friday 19th May 2000, being the fourth day of the trial, Castalloy’s counsel, Mr Strawbridge, withdrew indicating that because the issues between the defendants and Castalloy had been resolved notices of discontinuance would be filed by the defendants; (see p.316). On 11th December 2000, Notices of Discontinuance were so filed.

Summary of Claims

The first plaintiff seeks damages from all three defendants, Beare, Brambles and Fletchers, for common law negligence. The claim against Fletchers is statute barred and so the plaintiffs apply in these proceedings for an extension of time in which to institute the action pursuant to s.48 of the Limitation of Actions Act 1936 as amended.
Further, the first plaintiff seeks damages from both Beare and Fletchers pursuant to s.84 of the Fair Trading Act (SA) 1987 for breaches of ss.56 and 63 of that Act. Again, the claim against Fletchers is statute barred and an extension of time is sought.
Finally, the first plaintiff seeks damages from Brambles pursuant to s.82 of the Trade Practices Act 1974 for breaches of s.52 of that Act.
I note that the pleadings also include a claim by the first plaintiff against Brambles pursuant to the Fair Trading Act. That claim must have been pleaded out of an abundance of caution. It was never agitated in argument, no doubt because the Commonwealth Trade Practices Act would cover the field of this corporate liability.
The second plaintiff claims damages from all defendants pursuant to s.33 of the Wrongs Act (SA) 1936 for “the loss or impairment of the consortium of (her) husband”.

Narrative of events

I now turn to the narrative of events. Unless indicated as contentious, I find that the events unfolded as set out below. I will identify the areas of contention and set out my findings of fact as I traverse the events.

The attempts to lift the furnace using the mechanical jacks

In early December 1993, Slattery commenced work as a casual trades assistant with Blueline whose premises were at Lonsdale. He had worked for Blueline before and knew the manager, Ian Hicks, socially; (see LJ Slattery p.40). Prior to the 29th December 1993, Blueline had carried out maintenance work for Castalloy at Castalloy’s extensive foundry complex. This work consisted of repairs, alterations, fabrication, plumbing and refixing; (see Hendy p.216).
Likewise, as at the 29th December 1993, Brambles had a history of carrying out maintenance for Castalloy and that work included moving heavy machinery and equipment; (see Hendy p.216). Over an unspecified period of time, prior to the 29th December 1993, a relationship of cooperation had developed between Blueline and Brambles which derived from them working together on jobs, and working at the same locations; (see Darling pp.328, 329). Hendy spoke of a previous job at Castalloy’s premises where Brambles moved one of the furnaces and Blueline moved the ancillary equipment. Hendy recounted how on another occasion prior to the 29th December 1993, at Castalloy, employees of Blueline assisted Brambles to move a furnace into a new location; (see Hendy pp.216, 217).
In 1988, a low pressure tilt barrel furnace was installed in the Low Pressure Foundry at Castalloy’s complex. Some time prior to 1993, the furnace had been raised 100 millimetres from the foundry floor. So, as at the 29th December 1993, 100 millimetre legs or packers supported a platform upon which this furnace stood; (see Darling pp.326, 327).
Some time prior to the 29th December, Castalloy had purchased a new ladle to carry “more molten aluminium”; (see Hendy p.219.5). It was to be fitted underneath the furnace. On or about the 26th December 1993, Blueline had attempted to raise the chute of the furnace to accommodate this new ladle, without success. It was decided that the furnace itself had to be raised and, in anticipation, six new 350 millimetre legs or supports were fabricated; (see Hendy p.219).
So, on the 29th December 1993, the foreman at Blueline, Brian Darling, despatched Lawrence Slattery and Ian Hendy to Castalloy’s premises to raise the furnace a further 250 millimetres and replace the 100 millimetre supports with the 350 millimetres supports. Slattery and Hendy, following instructions from Darling, loaded into the Blueline utility the six supports and, en route to Castalloy’s premises, picked up two 15 tonne Trewallor mechanical jacks from Coates Hire at Reynella. They arrived at Castalloy’s premises at about 7.30 am; (see Hendy p.220; see also Darling p.327; see also Exhibit D3). Hendy was in charge; (see Hendy pp.220, 221).
The jacks were equipped with levers which were about “1, 1½ metres long”; (see Hendy p.222). They were placed under the platform on one side of the furnace and “spaced out evenly” from the ends of the platform. The plan was to “see-saw” the furnace up - that is to jack it up some distance on one side, then pack that side up and do the same on the other side until the lift of 250 millimetres was achieved; (see Hendy pp.221, 222; see alsoExhibit D3). However, the furnace would not budge despite the best efforts of both Slattery and Hendy, which on one occasion involved them putting their combined weight on one lever; (see Hendy p.222). Geoffrey Poole, a sub-contractor, was, at the same time, removing the hydraulic rams or cylinders from the same furnace for the purpose of overhaul and maintenance. He observed the fruitless efforts of Slattery and Hendy. He too, vainly, attempted to work the jack to raise the furnace; (see Poole p.318). He also witnessed subsequent events which I will come to in a moment.
Hendy rang Darling for further instructions. He told Darling that the mechanical jacks were not doing the job and asked Darling what the weight of the furnace was. Darling told him that it weighed between 30 and 45 tonnes. Darling then instructed Hendy to see Wally Geier, the in-house engineer at Castalloy, and Dominic from Brambles and ascertain whether Brambles had something that would be able to lift the furnace; (see Hendy p.223).

Assistance provided by Brambles by its servant “Beare” - conflict between Hendy and Beare - resolution of conflict

This now brings me to an area of conflict, namely, what passed between Beare, of Brambles, and Hendy at the time Brambles were asked for and gave assistance.
As previously indicated, on the 29th December, Brambles were working at the Castalloy premises in the Manifold Foundry which was some 200 metres from the Low Pressure Foundry; (see Hendy p.223). Brambles were there to move a 50 tonne furnace from outside a building to inside and then lower it some 700 millimetres into a pit; (see Beare p.504).
Hendy, was unable to find either Wally Geier or Dominic but he knew that Brambles were on the premises and so he went, with Slattery, to the Manifold Foundry. Beare was apparently in charge there or at least he was the person who actively responded to enquiries; (see Hendy p.223).
I now turn to the respective accounts of Hendy and Beare. There are material conflicts between them. I start by recounting Hendy’s evidence as to his dealings with Beare:-

·....... Hendy, accompanied by Slattery, located Brambles at the Manifold Foundry and there spoke with Beare. He recounted the difficulties he and Slattery had when attempting to lift the furnace and asked Beare if he had anything which would help raise the furnace; (see Hendy p.224).

Beare replied that he would have a look at the furnace and so he walked back to the Low Pressure Foundry with Slattery and Hendy; (see Hendy p.224).
Beare surveyed the scene at the furnace and told Hendy that he had a couple of jacks with slippers that would be able to lift the furnace; (see Hendy p.224).
Beare then asked Hendy if he had oxyacetylene equipment and, if so, would he come and do a bit of cutting out because the furnace Brambles were installing would not fit; (see Hendy pp.224, 225).
Hendy agreed to do the cutting out and he, Hendy, walked back to the Manifold Foundry with Beare whilst Slattery drove the utility over with the oxyacetylene equipment on board; (see Hendy pp.224, 225).
The cutting out requested by Brambles took five minutes. Hendy did it himself. The furnace was then re-positioned with the assistance of a crane; (see Hendy p.225).
Then Beare handed over to Hendy and Slattery two hydraulic jacks and two slippers. He demonstrated the use of the slippers and warned Hendy and Slattery to stand aside when jacking up the furnace because of the propensity of the jacks to slip out. According to Hendy, Beare also added that the lift should be achieved 50 millimetres at a time, with the furnace being chocked up using timber before being jacked up again. In particular, in answer to Hendy’s question about whether the jacks would do the trick, Beare said “Yeah they should do. They’re 35 tonne jacks and they’ve got 14 tonne slippers on them”; (see Hendy pp.226, 227).
Hendy and Slattery, having returned to the Low Pressure Foundry, were positioning the jacks under one side of the furnace when Beare came into the Low Pressure Foundry, apparently en route “to smoko”, and stood behind them and said that they should be careful because the jacks can slip out and to stand to one side when jacking the furnace up; (see Hendy p.227).
After the accident, Hendy said that he went to the Manifold Foundry and approached Beare with the news that one of the slippers had broken. According to Hendy, Beare’s response was to ask “Which one broke? The cast one or the manufactured one?”. After Hendy had replied that it was the cast slipper, Beare said “No worries we’ve had them break on us before”; (see Hendy p.234).

Beare took issue with some but not all of Hendy’s account. His evidence as to the same events was, in summary, as follows:-

·....... Beare said that it was “a gentleman who introduced himself as an engineer from Castalloy”, who approached him with an account of the failed lift and a request for help; (see Beare p.485).

Beare said that he then walked to the Low Pressure Foundry, in company with the engineer, and inspected the furnace. He said that the Blueline workers were not present; (see Beare p.485).
Beare agreed that he then offered equipment, which was capable of jacking the furnace up, to the Castalloy engineer and at that stage proffered advice about doing the lift safely by “making sure that they put the jacks in properly, that they pack the unit as they go up and that they only jack 50 to 75 mil at a time ...”; (see Beare p.486).
Beare denied that there was any request for help cutting with oxyacetylene equipment or that any such work was done; (see Beare pp.584, 585).
Beare denied returning to the Low Pressure Foundry whilst Hendy and Slattery were setting up and denied proffering more advice, saying that he had no reason to go through that building for “smoko”; (see Beare p.586).
Beare added that the “engineer and another man” carried the jacks and slippers from the manifold factory by hand to the Low Pressure Foundry and did not load them into a vehicle for carriage between the two points; (see Beare p.585).
As to the final conversation after the accident, Beare denied that he asked about a fabricated slipper or that he indicated, when told that the cast slipper and not the fabricated slipper had broken, that “... we’ve had a couple of those break on us before”; (see Beare p.487).

It can be seen that Beare accepted that he proffered the advice and equipment, albeit through the medium of a person who identified himself as an engineer from Castalloy. Further, in cross-examination, Beare accepted that he knew that the mechanical jacks which had failed to lift the furnace were two 15 tonne jacks and that the furnace was about 50 tonnes in weight; (see Beare pp.581, 582).
Such is the extent of the conflict.
I prefer the evidence of Hendy to that of Beare where it is in conflict. I do not regard Beare as untruthful. Rather, I regard his evidence as unreliable. I find, firstly, that Beare’s evidence, in material respects, is internally inconsistent. Secondly, it is specifically inconsistent, in several respects, with a previous statement made by him on the 27th September 1994; (see Exhibit D6). Thirdly, it is inconsistent with other independent evidence. Further, I consider Hendy’s account to be more intrinsically likely in the sense that it fits in with, and has support in, the balance of the acceptable evidence.
In particular, I base this finding of credibility on the following:-

·....... Hendy’s unchallenged evidence was that he had previously met Beare and had worked with him on a previous job at Castalloy’s. Hendy identified Beare in Court; (see Hendy pp.216, 217). On the other hand, Beare did not know, name or identify Hendy; (see Beare p.578).

There was no reservation in Hendy’s evidence as to Beare being the person to whom he spoke. On the other hand, Beare’s evidence about the identity of the person to whom he spoke about the problems of lifting the furnace, including who told him about the accident, is vague, confusing and, in places, inconsistent. In my view, he has confused Hendy with the Castalloy engineer; (see pp.486 line 35, 487 line 6, 488 line 29, 583 line 24, 584 line 11, 585 line 34, 588, 589; see also Exhibit D6 p.3). In cross-examination, at p.589, Beare admitted to the possibility that the person who told him of the accident could have said “Well it’s just smacked my mate in the face” (the italics are mine). Slattery would more aptly be described as Hendy’s mate than the mate of “the engineer” whom Beare originally asserted was the bearer of news of the accident; (see Beare p.487; see also Exhibit D6), unless “the engineer” is Hendy.
Hendy’s evidence is substantially consistent with his prior statement; (see Exhibit D3). On the other hand, Beare’s evidence, as to whether or not a fabricated shoe was supplied, and secondly, as to whether there were cracks and problems in the shoes before the day of the accident, is inconsistent with his previous statement of the 27th September 1994; (see Exhibit D6; see also Beare pp.506 - 510).
The evidence as to there being a fabricated shoe supplied by Beare - a proposition categorically denied in evidence by Beare, (see Beare p.503), is supported by the independent witness, Poole, (see Poole pp.322 -324), and also by Darling; (see Darling p.334).
Hendy’s evidence as to doing the cutting out work - a proposition categorically denied by Beare, is supported by Slattery; (see LJ Slattery p.87). It is one of the few events recalled by Slattery who suffered amnesia.
Further, the picture painted by Hendy, who was unshaken in cross-examination, is more intrinsically likely given all the evidence. It fits in more easily with all the evidence than does the evidence of Beare. For example:-
·....... if there was the culture of cooperation deposed to by Darling (see Darling pp.328, 329), which makes good sense, why would Hendy use Geier, if he is the Castalloy engineer referred to by Beare, as a go between;
·Hendy’s assertion that he directly solicited help from Brambles, that is Beare, fits in with the evidence of Darling, which was that he instructed Hendy to do just that; (see Darling p.328);
·....... Slattery himself remembered firstly, there being oxyacetylene equipment in the utility (see p.43) and, secondly, once at Castalloy, driving the Blueline vehicle to the Brambles site in the Manifold Foundry and not only doing the oxyacetylene work but also loading the jacks and toes into the vehicle; (see LJ Slattery p.44, 45, 46, 87);
·Beare’s assertion that the 28.2 kilo jacks were manually carried by two “gentlemen” away from the Manifold Foundry is itself improbable (see Beare pp.486, 585), and all the more improbable if the oxyacetylene work was done for Brambles by Blueline, which I infer, necessitated the presence of the utility;
·....... Beare’s assertion that one of “the gentlemen” who manually carried away the jacks and toes was “the engineer”, (see Beare p.585 line 34) is improbable, unless “the engineer” is Hendy;
·Beare probably did visit the Low Pressure Foundry en route to “smoko” as Hendy said; (see Hendy p.227). Beare accepted that he did go to “smoko” and passed by the Low Pressure Foundry to do so; (see Beare p.586).

Put more generally, if it is accepted that Beare had mistaken Hendy for “the engineer” then much of the conflict dissolves.
Wally Geier, who was the Castalloy engineer present on the day of the accident, and Peter Musch were absent from the armouries of both sides. I decline to draw any inference one way or the other from the absence of such material witnesses. I was not asked to draw any inferences by either side.

So, having accepted the accounts of Hendy and Slattery where they conflict with Beare, it follows that I find that the events unfolded as deposed to by Hendy and summarised above.
Before returning to the narrative, I insert here some detail about the way in which the jacks and toes were used to raise the furnace. These matters were uncontentious.

The jacks and toes - the mechanics of lifting the furnace - lifting capacity

I will be here referring for the first time to the evidence of an expert witness, Mr Henry Kutek, who is a forensic metallurgist and engineer. He was called by the plaintiffs and was the only expert witness in the trial. I accept Mr Kutek’s evidence. Having said that, Mr Kutek ultimately postulated two causes for the failure of the claw. I preferred one rather than the other. I will come to that later.
The method of lifting was to position the toes of the jacks under the edge of one side of the furnace sufficiently in from the ends to share the weight. Then by synchronised application of the levers, raise one side of the furnace. After raising that side by incremental lifts and “chocking up”, the operators move to the other side and repeat the process. This is called “see-sawing”. This was the method originally attempted by Hendy and Slattery with the mechanical jacks and that which I find was implicitly approved of by Beare when he loaned the jacks and claws to them. Indeed, on my findings, he saw the mechanical jacks in such a position when he initially visited the furnace in the Low Pressure Foundry and later on during the “smoko” visit when he saw the Brambles jacks in much the same position.
There is no dispute in this case that the two jacks and toes loaned to Hendy and Slattery were hydraulic claw jacks, sometimes called Web Tool Jacks, with a lifting capacity of 35 tonnes together with claws of 14 tonne lifting capacity. The specifications for such a jack and claw are seen in Exhibit P21. The dimensions and weight capacity are particularised. It can be seen that the jacks weigh 28.2 kilos each. The claw jacks are designed to lift objects which are low to, but not sitting flush, upon the ground or floor. The claw fits over the piston of the jack and the toe of the claw is inserted under the edge of the item to be lifted.
As its name implies, the hydraulic jack relies “on someone pumping a lever which operates a small piston which pumps hydraulic fluid into a larger piston which actually does the lifting ...”; (see Kutek p.403). On the other hand, a mechanical jack operates by means of force or effort applied by the operator of the lever being transmitted to a ratchet or cogs; (see Beare p.581).
One of the other matters of note, deposed to by Mr Kutek and the other riggers who gave evidence, was just what is meant by a jack or more importantly, a toe having a specified lifting capacity (eg 14 tonnes). Kutek’s evidence about this, which I accept in preference to any other evidence on this topic, was that, in the design of most load bearing equipment, there is a general safety factor of 2 which allows for “dynamic force efforts”, (see Kutek p.396) and wear and abuse; (see Exhibit P15 para 3.1; see also Kutek pp.403, 404). He explained the parameters of this safety margin in the following exchange with counsel, Ms Layton QC:-
"Q.... What does it mean to have a factor of 2. Does that mean you can lift 28 tonnes with it, or does it mean something else than that?
A...... No, it doesn’t mean you can lift 28 tones, but it means you can lift 14 tonnes and allowance has been made for the dynamic forces of lifting that 14. If you were to lift 28 with a safety factor of 2, with a claw of a capacity of 14 but a safety factor or 2, then chances are it would fracture.”
(see Kutek pp.396-397).

He explained what he meant by dynamic forces at page 397 line 13 as follows:-

“The dynamic loadings that it would take into account are the actual process of lifting, so you are applying a force to overcome the effects of gravity - you are trying to raise it and if there is any sudden give or movement in the lifting gear, then it, should be able to accommodate that with some degree of safety.”

Kutek later explained that the dynamic forces which ought to be catered for included also the forces of friction generated in the lift, being the friction between the backside of claw and the jack, as the load rises; (see Kutek p.412).
Kutek said, further explaining the concept of dynamic force, that a 14 tonne toe given a safety factor of 2 could support 28 tonnes if such a weight was gently lowered onto it but it would fail if required to lift such a weight; (see Kutek pp.396, 397).

Provenance of the offending jack and claw used by Slattery and establishing the chain of evidence in respect of the claw

I find in relation to the claw, Exhibit P3, that:-

·....... it was manufactured by Fletchers for SES;

it was acquired from SES by Brambles;
it was loaned on the 29th December 1993 by Beare to Blueline;
it was used by Slattery and fractured in the course of the lift;
it was recovered and tested by Mr Kutek and found to have casting defects.

It is only Fletchers who challenge this chain of evidence. In particular, counsel, Mr Hanus, contended that it had not been proven that one of the shoes made by Fletchers and collected by Tom Giles of SES was the shoe which fractured and injured Slattery. He agreed that Exhibit P3 was the shoe which struck Slattery and presumably also that it was P3 which was tested by Mr Kutek. So he challenged the intermediate links in the chain.
So I will briefly refer to the evidence which, despite Mr Hanus’ submissions, I find supports the above chain. There emerged from this evidence a number of other facts which are material to liability.
SES started business in or about September/October 1984 and at that time purchased four web tool jacks of 35 tonne capacity together with four toes or claws; (see Giles pp.337-339). These four toes were rated at 14 tonnes; (see Giles pp.350, 358, 366). In May 1990, after approximately five years of use, the four toes were subjected to a radiograph examination by a firm named INTICO and found to be defective. It is to be noted that the cost of the examination was $40.00 each, a total of $160.00; (see Exhibit P13). SES retained Fletchers to reproduce the four toes. However, through no fault of Fletchers the reproductions were defective. So on or about the 16th September 1990, SES had a third set of four toes made by Fletchers; (see Giles pp.342, 344; see also Exhibit P11). This third set of four toes was tested by Tom Giles of SES by putting the jack and toes one by one under the back of an SES crane which was then lowered onto the claw. The weight of the crane was 25 to 26 tonnes; (see Giles p.345). The claws had no problems supporting the weight and so the claws were put into service. They were used by SES thereafter and were not further tested. Giles knew of no other toes manufactured for SES by Fletchers; (see Giles pp.346, 359, 371). The toes made by Fletchers for SES were distinctive in that they were not dimpled like others and were not stamped with their rated capacity; (see Beare p.488, 481, 474). It can be seen from an examination of the fractured toe, Exhibit P3, that it is neither dimpled nor stamped with its capacity. This is apparently rare; (see Beare p.481; see also Exhibit P15 figure 12 which shows dimpled claw).
By April 1992, SES was experiencing financial difficulties. Giles moved to an opposition company, Nicholls Cranes. SES was liquidated and there was an auction of SES equipment in about October 1992; (see Giles p.346). The jacks and toes were not in the auction and nor was the stillage which contained, not only the said jacks and toes, but other SES lifting equipment; (see Giles p.375). Giles all but recognised the fractured toe, Exhibit P3, as one of the four toes his evidence focussed on; (see pp.347, 356).
Beare also worked for SES for 6 ½ / 7 years until its voluntary liquidation; (see Beare p.462). He was a rigger and came to know the equipment SES used. Beare obtained work at Brambles about six weeks after leaving SES; (see Beare p.474). He recognised the web tool jacks and the toes and indeed the stillage containing the lifting equipment as having come from SES; (see Beare pp.474, 482). The inference which arises is that Brambles purchased the SES stillage and its lifting equipment from the liquidator before the auction.
Beare recognised the fractured toe, Exhibit P3, as one of the toes from the “third set” of toes commissioned from Fletchers by SES; (see p.482).
Also, the expert engineer, Mr Kutek, recognised Exhibit P3 as the claw which he tested; (see Kutek p.383).
So it was that I arrived at earlier findings as to provenance and the chain of evidence.

The furnace is lifted 75 millimetres - the claw on Slattery’s jack fractures

The evidence as to these events comes from Hendy. Slattery has little memory of what happened.
Following the representations of Beare, Hendy and Slattery prepared to make the lift. They located the Brambles jacks and toes on one side of the furnace near to the mechanical jacks; (see Hendy pp.227, 228; see also Exhibit P1, photograph 3). Hendy said he and Slattery reminded themselves of the necessity to synchronise the operation of the levers; (see Hendy p.228). They then levered the side of the furnace up 50 mm. Then they jacked up the mechanical jacks to take the weight and also packed up that side with timbers in case the mechanical jacks would not hold when they released the hydraulic jacks; (see Hendy pp.229-230). Following this, they dropped the hydraulic jacks and repositioned them under the furnace. This is what has been referred to as the first lift.
They repeated the process, watching one another in an attempt to ensure that the levers were operated in harmony. On this, the second lift, they raised the furnace 25 mm (see Hendy pp.230, 231).
However, they could not quite fit the packing timbers underneath and so decided to raise the side a little more to accommodate the timbers; (see Hendy pp.230, 231). So they commenced the third lift. Hendy said that they “started again for the further 25 mm” ... and “there was a loud bang and I turned to look at Lawrence and saw Lawrence falling down ...”. At the time of the bang Hendy saw “a lump of metal or something ... skidding across the floor away from the furnace ...”; (see Hendy pp.231-233).

Aftermath

Hendy and Geoffrey Poole, a sub-contractor who was working on the hydraulic cylinders on the same side of the furnace, attended to the unconscious Slattery. Hendy left to summon an ambulance. When the ambulance officers arrived Hendy, retrieved the broken claw and showed it to the ambulance officer “to let them know what hit him”; (see Hendy p.234). Hendy identified the fractured claw, Exhibit P3, as part of what he picked up. Once the ambulance had left, taking the stricken Slattery, Hendy gathered up the parts of the fractured claw and put them near the jack. After lowering the other jack, he gathered up the portion of the fractured claw which he saw “skidding across the floor” and walked back to the Brambles location in the Manifold Foundry and spoke to Beare. I set out Hendy’s evidence as to this conversation which, as I have previously indicated, I accept:-
"Q.... When you went over there, what did you do.
A...... I went up to Ralph and I said to him ‘One of your slippers on your jacks has just broken.’
Q...... Did he say anything.
A...... He turned around and he said to me ‘Which one broke, the cast one or the manufactured one?’ and I said ‘The cast one’ and he turned around and he said ‘No worries, we’ve had them break on us before.’
Q...... What did you say, if anything.
A...... I said ‘Well, it’s just smacked my mate in the face’ and that was the end of the conversation.”
(see Hendy p.234)
Clearly the two claws, the fabricated one and the fractured cast one, were recovered from the scene by Brambles. Darling was invited to a meeting at Brambles headquarters at Hanson Road to discuss the accident with two of Brambles’ managers. At the meeting, he saw a deformed pre-fabricated claw and the broken cast claw; (see Darling pp.333-336).
I find that Beare supplied a pre-fabricated claw and a cast claw to Hendy, although Hendy did not realise it until the conversation with Beare; (see Hendy pp.273-274). In so finding, I rely upon the evidence of Geoffrey Poole (see p.324) and the inferences arising from the evidence of Darling as to what he saw at the subsequent meeting about the accident at Brambles’ headquarters; (see Darling p.334). Beare’s statement, Exhibit D6, also supports such a finding.

Testing of the claw - expert evidence

Mr Henry Kutek tested the claw. He found structural defects in the claw, namely, “hot tears” and “porosity problems” and he described the causes as being inadequacies in foundry practice; (see p.383). He said that he would have expected the foundry to have screening methods in place to check for these defects; (see p.384). He expanded on the techniques for checking available to the foundry, some of which were quite inexpensive; (see pp.385-393). He said the claw should have been rejected and not put into service; (see Exhibit P15). He was also critical of the lifting procedures adopted on the 29th December 1993. I will be canvassing this aspect of his evidence later.

Liability

Particulars of first plaintiff’s common law negligence claims

The plaintiffs seek damages against all three defendants for common law negligence.
The negligence alleged against Beare, broadly speaking, is that he provided advice and the jacks and shoes to Hendy and Slattery for lifting the furnace, when he knew, or ought reasonably to have foreseen, that there was a risk that the shoe was not structurally capable of achieving the lift and in failing to do so would expose Hendy and Slattery to the risk of injury.
The negligence alleged against Brambles is both direct and vicarious. Firstly, the plaintiffs allege that the proffering of equipment and advice by Beare was within the course of his employment with Brambles and that, therefore, Brambles was vicariously liable for Beare’s wrongful conduct in that respect. Further, the plaintiffs allege that Brambles was directly negligent in not checking its lifting equipment upon purchase from SES and in not having in place a system of ongoing surveillance to test the structural integrity of its plant and equipment and, in particular, the toe which failed on this occasion. The plaintiffs also allege against Beare, and, therefore, Brambles, that Beare provided Hendy and Slattery with the claw:-

·..... when he knew or ought reasonably to have known that it might have been cracked;
·..... when knowing that such claws had a history of bending and cracking, failed to warn them of it; and
·..... when knowing of such history, failed to warn them of the lack of testing by Brambles.

Finally, the negligence alleged against Fletchers is that their failure to take reasonable care in the manufacturing process resulted in a toe which was structurally defective. Specifically, it was cracked and porous by reason of casting problems, and therefore, was incapable of safely lifting 14 tonnes or thereabouts which was its purpose. These problems were capable of easy and economical detection at the manufacturing stage, but were not checked. The pleadings against Fletchers use the Sale of Goods Act 1895 terminology of “fitness for purpose” and “merchantable quality”. However, Ms Layton QC, counsel for the plaintiffs, explained in her final address (see p.697), that there is no claim under that Act by the plaintiffs. Rather, the use of those phrases was intended to indicate the scope of the duty of care.
This claim against Fletchers is, on its face, statute barred; (see ss.35, 36 of the Limitation of Actions Act 1936 as amended). So the plaintiffs apply in these proceedings for an extension of time in which to institute this action against Fletchers pursuant to s.48 of the said Act. Since the belated proceedings were instituted by way of amending the existing proceedings to add Fletchers as a third defendant, (amendment allowed on the 7th March 2000), the plaintiffs necessarily rely on Brooks v The Flinders University (1988) 47 SASR 119 which permits such a procedure rather than the institution of separate proceedings which hitherto was considered appropriate.

Negligence - the parameters

To succeed in proving an entitlement to damages in respect of these claims, or any of them, the plaintiffs must prove on the balance of probabilities that:-

·....... the defendants owed the plaintiffs a duty of care;

the defendant(s)’ conduct breached that duty;
the plaintiffs suffered a loss;
the loss was caused by the defendant(s)’ breach of duty; and
the loss suffered was not too remote in the sense that the loss or injury complained of was not only caused by the alleged negligence but also was an injury of a class or character which was reasonably foreseeable as a possible result of the negligent act or omission.
(see Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307 at 322).

I put aside for the moment the fact that the claim against Fletchers is prima facie statute barred and an extension of time is necessary to pursue the claim.

Liability of Beare and Brambles - common law negligence - Findings

I turn to the liability of Beare and Brambles.
In my view, the assistance given by Beare to Hendy and Slattery was within the course of his employment with Brambles. I take particular account of what I have characterised as a culture of cooperation which existed between Brambles and Blueline. Accordingly, Brambles are vicariously liable for any negligence of Beare arising from the assistance given by him to Blueline.
Beare owed a duty of care to the Blueline employees, Hendy and Slattery. The relationship of proximity between Beare and the Blueline employees was such that it was reasonably foreseeable that if Beare did not exercise reasonable care in the provision of advice and equipment that Hendy and Slattery could suffer harm; (see Wyong Shire Council v Shirt (1980) 29 ALR 217 per Mason J at 218).
I now turn to the issue of breach of duty. In Wyong Shire (supra), at 221, Mason J, as he then was said of this issue:-
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
The system employed to lift the furnace by see-sawing it up, using two jacks and toes in tandem and relying upon Hendy and Slattery to maintain synchrony in the operation of the levers, was inherently dangerous. If the operators failed to maintain synchrony, neither of the jacks and claws was capable, by itself, of supporting the entire weight; (see Kutek pp.404, 405; see also Exhibit P15 first report para. 3.11). That the load might have been flexible does not address the inherent risk that the loads borne by each jack and toe might vary dangerously during the lift. Nor, in my view, is it an answer to say that such methodology was standard practice in the industry; (see F v R (1983) 33 SASR 189 per King CJ at 194).

The inherent danger alluded to above was further exacerbated by the use, in this case, of a jack with a lifting capacity of 35 tonnes in conjunction with a claw with a load-bearing capacity of only 14 tonnes. In his report and in his evidence, Kutek considered that the incongruity of having a jack with a lifting capacity of 35 tonnes raising a claw or “clip-on”, as he called it, with only 14 tonnes capacity raised “alarm bells”; (see Exhibit P16 para 3.9; see also pp.418, 419). I agree. The jack had the capacity to safely raise a weight of 35 tonnes, yet the claw could only lift 14 tonnes safely. Only the jack had a safety valve which would cut in and “bleed off” when the jack exceeded its safety margin of 35 tonnes; (see Ewens at pp.594, 595). However, no such fail safe mechanism existed to cater for the much lower capacity of the claw when it was used in unison with the jack; (see Ewens p.494 line 25). Beare, in his evidence, erroneously said that the safety valve on the jack operated to prevent the claw being overloaded; (see Beare pp.496, 497). Even without the correcting evidence of Ewens, such evidence is illogical. When pressed by Mr Hanus, counsel for Fletchers, Beare said that he was told that by A.D. Automation. No doubt such evidence provoked Fletchers, as part of their case, to call Mr Ewens, from A.D. Automation, who gave evidence of the correct position which I have particularised above. Beare was a rigger of long experience and it is alarming if he truly nurtured such a fundamental and illogical misunderstanding about the safe operation of the jack when a claw is employed.
Further, Beare ought to have realised that, as Hendy and Slattery had failed “to budge” the furnace with two mechanical jacks, each of 15 tonnes lifting capacity, that attempting to do so with two claws of 14 tonnes lifting capacity, to use Mr Kutek’s words, was “fraught with danger”; (see Kutek’s first report Exhibit P15, para 3.10). Before providing the equipment, Beare visited the scene and inspected the furnace and assessed its weight. He understood that the two 15 tonne capacity mechanical jacks were unable to lift the load; (see Beare pp.580, 581). Yet he recommended and supplied the jacks with the 14 tonne shoes. In the circumstances, he ought to have concluded that there was at least a prospect that the furnace weighed more than 50 tonnes. Indeed, at page 402 of the transcript Kutek said about this matter:-
“Basic arithmetic says that if they were using two 15 tonne jacks and couldn’t lift it, then in unison they were trying to lift 30 tonnes and so that would have been more than half of the weight, so that furnace would have weighed in excess of 60 tonnes.”
If those factors for which the 2:1 safety margin is provided are added to the equation such as:-

·....... the dynamic forces, (see Kutek pp.396, 397; see also Exhibit P15 para 3.1); and

the wear, tear, abuse and fatigue sustained by the jacks (which would mean that notwithstanding perfect synchrony by the operators the jacks might nonetheless perform differently), (see Kutek pp.402-406);

the operation advocated by Beare was, to use Mr Kutek’s phrase again, “fraught with danger”.

For the above reasons, Beare ought to have foreseen that his conduct in providing the jacks and toes and representing that they would safely lift the furnace involved a risk of injury to Slattery. His response should have been to decline to provide such equipment. The warning to guard against slippage of the jacks was not sufficient response. Accordingly, I find that Beare was negligent and in breach of the duty of care owed to such people as Slattery. Brambles is vicariously liable for this breach by Beare.
There are further allegations of negligence against Beare, and therefore Brambles, namely, that Beare provided Hendy and Slattery with the claw:-

·....... when he knew or ought reasonably to have known that it might have been cracked;

when, knowing that such claws had a history of bending and cracking, failed to warn them of it; and
when knowing of such history, failed to warn them of the lack of testing regime by Brambles of such equipment.

I decline to find that Beare knew or ought to have known that the claw was cracked. He said that he learned of previous cracking problems in his time at SES which, of course, was some three years before the accident; (see Beare pp.576, 588, 589). As to the failure to warn of the problems experienced by him at SES, I note merely that they arose three years earlier, that is in September 1990, and the evidence did not convincingly establish any more recent problems. What Beare said to Hendy at Castalloy’s Manifold Foundry after the accident, seemed to be referring to more recent problems with the claws, as did his previous statement made on the 27th September 1994, Exhibit D6. Without more, however, I am unable to find that he had a duty to warn as alleged. For the same reason I decline to find that the failure to warn of a lack of a testing regime at Brambles constituted a breach of duty. The compulsion for giving such a warning had diminished with time and the untroubled use of the claw over a period of some three years.
I now turn to the allegation of what I have called direct negligence against Brambles, namely that of not having in place some regime of screening or testing its lifting equipment and, in particular, the claw - firstly, upon its acquisition and thereafter from time to time during its use. I conclude from the evidence that in fact no checking or ongoing surveillance of the structural integrity of such equipment was in place at Brambles; (see Beare p.589). In all the circumstances, it is my view that Brambles owed a duty of care to users, such as Hendy and Slattery, in the same way as the duty owed to its employees. Its duty being to take all reasonable steps to ensure that its lifting equipment was structurally sound. Further, I find that Brambles breached this duty. The evidence already canvassed by me demonstrates the existence of readily accessible methods of testing at a reasonable cost.
I now turn to issues of causation. Given that damage is the gist of an action in the tort of negligence, it must be shown that the plaintiffs suffered loss, (see Distillers Co. v Thompson 1971 AC 458 per Lord Pearson at 468G), such loss not being trivial or negligible, (see Sellars v Adelaide Petroleum (1994) 179 CLR 332 at 355.5) and further that such loss was caused by the breach or breaches of duty. Certainly in this case, the plaintiffs have suffered loss and damage. However, the question which arises is ‘has it been caused in the legal sense by neglect and in this case whose neglect?’ The plaintiffs are obliged to prove causation on the balance of probabilities, (see Hall v Foong (1995) 65 SASR 281 per Debelle J at 301; Sellars v Adelaide Petroleum (supra at 355). What must be proven is that the breach of duty “caused or materially contributed to the damage”; (see Birkholz v Gilbertson Pty Ltd (1984) 38 SASR 121 per King CJ at 130; March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506; Bonnington Castings v Wardlaw (1956) AC 613). I need also to direct myself that causation is a question of fact which is to be decided by reference to commonsense rather than philosophical or scientific considerations; (see March v Stramare (supra); per Mason CJ at 509; Birkholz v Gilbertson Pty Ltd (supra) per King CJ at 130-132).
There are three arguably competing or contributing causes for the failure of the claw, namely:-

·....... that the weight it was subjected to exceeded its capacity, given the safety factor and that the structural defects were immaterial;

that the structural defects rendered it incapable of lifting 14 tonnes safely; or
that both overloading and structural defects in some way together contributed to the failure.

In large measure these questions turn on Mr Kutek’s expert opinion. I start with his reports Exhibit P15. This topic of what caused the failure is the subject of the first report of the 27th November 1995. The emphasis in this report is upon the unsafe method used to achieve the lift, namely:-

·....... the incongruity of a jack with a lifting capacity or rating of 35 tonnes being used in conjunction with a claw of only 14 tonnes capacity;

in the circumstances, the failure of the two 15 tonne mechanical jacks to lift the furnace indicated that the furnace may have been too heavy to be lifted by two 14 tonne claws;
the use of 35 tonne jacks and the 14 tonne toes created a potential overloading hazard by reason of the need to take account of dynamic load effects and the risk of the two operators not synchronising the lift.

As to the structural defects, Mr Kutek was circumspect about the degree to which they were implicated in the failure. In paragraph 3.3 he said, inter alia:-
“The surface defects present in the fractured claw would effectively have reduced the load bearing capacity of the claw, but it is not possible to accurately predict by how much”.
(the italics are mine)

At paragraph 3.11 he concluded, inter alia:-

“However, it is possible, if the claw being used by Mr Slattery had not been defective, that the operation could have been carried out successfully”.
(the italics are mine)

None of the three reports in Exhibit P15 assert that the claw, given its defects could not lift 14 tonnes safely or put another way perform to its rating with the safety factor of 2:1.
So without more, Mr Kutek’s reports do not support a case against Fletchers beyond the structural defects in the shoe being a possible contributor to the failure. The reports do, however, provide a base from which I could conclude on the balance of probabilities that in several respects the failure was due to the claw being overloaded. However, Mr Kutek’s oral evidence took this issue further.
Mr Kutek said that if a defective claw such as P3 was used and was subjected to a sufficiently high load it would fracture quite suddenly; (see p.396).
Mr Kutek addressed the part played by the structural defects in the following series of questions and answers:-
"Q.... Given all you know about what happened, what’s your ultimate opinion. Ms Layton asked you what caused this claw to fracture, in your opinion, given all you know.
A...... It was loaded higher than its carrying capacity in the condition that it’s in, and it’s obviously weakened by the presence of those defects.
XN
Q...... Just following up from one of his Honour’s questions, if the claw had been in good condition and not defective, would there have been a difference with what would have happened if too much load had been placed on it, than what did happen in this case.
A...... Yes. It’s a cast steel, so it’s relatively ductile, it’s not inherently a brittle material like some cast irons are. When I first looked at this, because of the way it fractured it was a cast iron, but the metallographs indicated it was in fact a cast steel, and because it is to a degree ductile, then when it’s loaded to near its maximum capacity, it will not suddenly break, as this one has done, a sound one would bend, as we’re talking about here (INDICATES), and it would bend, absorb some of that energy, and then if it’s still held in place and the load was increased still further, then ultimately it would break, it would fracture, but in that case, the fracture surface would have been quite different. Thus we can marry the parts back into virtually right angles, there’s no plastic flow, there’s no deformation of the thing, it’s gone totally without warning.
Q...... If in this case, after there had been the fracture of P3, the other claw, which was a fabricated claw, remained but ended up deformed, what does that tell you.
A...... It tells me that the fabricated one was a good deal stronger than this one, that’s about it. Because if it’s deformed but not broken, and still supporting the majority of the load, then certainly it’s a good deal stronger than this one.
Q...... So the fracture in this instance is related to the defects that you have located to his Honour exists in this particular P3.”
(see Kutek pp.414-415).
Kutek confirmed this in cross-examination by Mr Walsh QC, counsel for Beare and Brambles; (see Kutek pp.421, 422).
So pausing here, the evidence of Kutek might support the contention that the foundry defects caused the failure before the toe had exhausted its rated carrying capacity. In saying this, Mr Kutek was postulating the theory that if the claw was being drastically overloaded it would bend as its capacity was exceeded, before ultimately fracturing. No such bending was detected.
However, I find that what Kutek said in response to cross-examination by counsel for Fletchers, Mr Hanus, is what happened.
First of all, Mr Kutek confirmed what his position had always been, namely that there being no evidence of plastic deformation or fatigue, the fracture of the toe was a sudden event; (see Kutek pp.434, 435; see also Exhibit P15 paras 2.5 and 3.3). Then Mr Kutek was referred to the test which Mr Giles conducted, namely, subjecting the toe to a static weight of 25 or 26 tonnes by lowering the back end of a crane onto the toe. He said that the test did not necessarily prove that the claw could lift 14 tonnes safely. It merely indicated that it could support 25 or 26 tonnes (see Kutek p.437). Then Mr Hanus asked Mr Kutek to assume what I have found to be a fact, namely that:-

·..... the two jacks and toes raised the side of the furnace 50mm (ie the first lift);
·..... the weight of the furnace on that side was then taken by the two mechanical jacks, the raised side of the furnace was chocked up with timber, and the jacks and toes were repositioned;
·..... the two jacks and toes then raised that side of the furnace another 25 mm (ie the second lift); and
·..... finally in an attempt to lift the furnace a third time the claw fractured (ie the third lift).

On the basis of those assumptions, he agreed that as the claw had apparently managed the first two lifts there had to be something different about the third lift to account for the failure; (see Kutek p.438:1). Further, he agreed with the suggestion that on the third lift the toe must have been bearing a higher load than it was in the first two lifts. He accepted that the most likely explanation was that the distribution of the load between the jacks had become uneven; (see Kutek p.435:5).
Mr Kutek said that what emerged from the above events was that, assuming a synchronised lift for the first two lifts, it can be said that the claw had the capacity to bear a quarter of the total weight of the furnace; (see Kutek p.439:5). Further, using the failure of the 15 tonne mechanical jacks to lift the furnace as an indicator that its weight together must have been in excess of 60 tonnes, entails that the toes, on the first two lifts, were lifting in excess of 30 tonnes; (see Kutek p.439:9). Accordingly, Kutek agreed that the subject claw must have had the capacity to lift 15 tonnes; (see Kutek p.440). In particular, Kutek agreed then that on the third lift the toe must have been carrying more than 15 tonnes; (see Kutek p.440).
Finally, the following exchange took place:-
Mr Hanus“Can I suggest this to you on the basis of what you’ve said, given that there was no sign of deterioration over time and given that it was a fracture, given the results of the crane test that was done when the jack toe was first acquired, given the first two successful lifts firstly of 50 mm and then 25 mm, and given your view that the likelihood on the third lift was that there was an uneven load distribution between the two jacks, can I suggest that you’re not in a position to say that even with its defects that the jack toe was not suitable for lifting loads of 14 tonnes. You’re not in a position to say that, are you.
Mr Kutek No.”
(see Kutek p.440)
Despite the negatives, the transcript which follows makes it plain that Mr Kutek agreed that he was not in a position to say that, even with its defects, the toe was not suitable for lifting loads of 14 tonnes.
In my view, the evidence of Kutek from pages 434 to 441 which I have attempted to distil above undermines any categorical assertion that it has been proven that the toe must have failed before its rated capacity had been exhausted. Kutek’s evidence throughout, makes it plain that it is wrong to treat the 2:1 safety factor as, in effect, doubling the capacity of the claw. The safety margin is for friction and the dynamic forces of the lift all of which were playing a part in the first two lifts. The probabilities are that the claw did lift in excess of 15 tonnes on the first two lifts and it failed because, when Slattery and Hendy started the third lift, they did not operate the levers in synchrony, so that Slattery’s claw was suddenly subject to weights significantly in excess of the 14 tonne rated capacity and perhaps in the region of 30 tonnes. Mr Kutek, in his earlier evidence, explained how this could occur at p.405:-
"A..... (INDICATES) If we plot a graph, this is the load and here we have the height that is being lifted. The full weight of the furnace is up here, 50 per cent - because we are only lifting one side - is about there. Now, if both jacks are working absolutely in unison all the time, then they will share each half of that 50 per cent. So as the thing rises the load that they would be each carrying would be basically 25 per cent of the total. If there is an imbalance in the load sharing what will happen is that one will pick up more and the other will pick up less - they are supposed to be equidistant - so the average is that plus that still comes to 50 per cent. So if the one that is gradually picking up more and more load gets to a point where something is going to break, it will, and it will leave the other one carrying the full load for as long as it can.
Q...... Just assuming, for argument’s sake, that the object to be lifted is 50 tonne, not 60, and that that was what the person who was providing the equipment thought it was, and bearing in mind the factors that you have mentioned which may affect the load, bearing in mind it is being done in tandem, what sort of loading could have occurred on one of the toes as it was being lifted, in spite of the best endeavours to keep it in synchronisation.
A...... So if we have got 50 tonne total, as they were lifting one side it would be 25 tonne, basically, that they were trying to lift. If they were in perfect sync they would be 12 and a half each. If they got out of step then eventually it could end up that one was carrying basically the full 25 tonne and the other carrying very little.”
Accordingly, I find that the plaintiffs have proved that the breaches of duty by Beare, for which Brambles are vicariously liable, caused the failure of the claw and the consequential injury to Slattery. I find that the structural or casting defects in the claw did not cause or contribute to the failed lift, or, therefore, Slattery’s injuries.
It follows that the failure of Brambles to check its lifting equipment did not, in the required legal sense, cause the loss or damage of the plaintiffs, because on the basis of my finding, adequate testing of its weight bearing capacity would have shown that the toe could have lifted 14 tonnes safely.
I now turn to the final issue of remoteness. In my view, risk of injury to the operator of the jack was foreseeable if reasonable care was not taken in connection with lifting the furnace. The fact that the injury resulted not from a slipping jack but from what may be regarded as an unusual event, namely the fracture of the toe, will not avail the defendants. It was an injury of a class or character which was reasonably foreseeable (see Malcolm v Broadhurst (1970) 3 All ER 508 at 511; The Wagon Mound No. 1 (1961) AC 388; Webb v SA (1982) 43 ALR 465).
Accordingly, the first plaintiff’s action against the first and second defendants for damages for the tort of negligence succeeds.

Liability of Fletchers - common law negligence - Findings

I now turn to the liability of Fletchers in negligence.
Fletchers owed a duty of care to Slattery. However, it follows from my findings as to causation that Fletchers manufactured a claw which was fit for its purpose or of merchantable quality in the relevant sense. Namely, that although it contained the hot tears and the porosity problems, it was structurally sound and capable of bearing 14 tonnes safely in accordance with its rating.
The question which remains is whether Fletchers should be required to guard against misuse of the claw by overloading it to the point of failure. It could be said that such misuse is a foreseeable risk as was the cricket ball inflicting injury on persons passing by the cricket ground in Bolton v Stone (1951) AC 850. However, it may be that, as was held to be the case in Bolton v Stone (supra), the risk of injury arising from misuse here, is the sort of risk that a reasonable man would be justified in ignoring, given the commercial and expert setting in which this equipment is used and the difficulties of setting some standard. For instance, if the foundry is capable of manufacturing a claw which comfortably complies with its intended rated capacity, but the casting process, as a matter of course, often results in the sort of defects which occurred here, then screening would not be warranted. I note that Mr Kutek said that it’s not unusual for such foundry defects to exist in cast products such as the claws. There was no evidence about such matters beyond the canvassing of screening mechanisms and the cost thereof. The plaintiffs, in my view, have not in this respect discharged the onus of putting me, as the tribunal of fact, in the position of considering fully “the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action ...”; (see Wyong Shire Council v Shirt (supra) per Mason at 221).
In my view, what occurred here amounted to almost a gross misuse of the claw. Without more convincing evidence I am unable to find that Fletchers were in breach of a duty to guard against such misuse.
Accordingly, there is no need to consider the application by the plaintiffs to extend time within which to institute these proceedings against Fletchers.
Therefore, the action by the plaintiffs against the third defendant for damages for negligence fails.

Particulars of first plaintiff’s claim against Brambles pursuant to s.82 for breach of s.52 of the Trade Practices Act - the parameters

Section 52(1) of the Trade Practices Act provides:-
“A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”
The above section “establishes a norm of conduct, failure to observe which has consequences provided for elsewhere in the same statute ...” (see Brown v Jam Factory Pty Ltd (1981) 53 FLR 340 per Fox J at 348). A breach of s.52(1) above gives rise to a right under s.82 to recover the amount of the loss or damage.
Section 82(1) provides:-
“A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV, IVB or V or section 51AC may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.”
Section 52 is within Part V of the Act.
The first plaintiff’s claim under the Trade Practices Act is necessarily confined to Brambles, the corporation. There was no contention made that Beare was personally responsible under the complicity provision, namely s.75B of the Act. The case against Brambles here is that it, by its servant Beare, was in breach of s.52 in that it misrepresented that the furnace could be lifted safely with the jacks and toes. Further, it is alleged that Brambles was in breach of s.52 in failing to warn the Blueline employees of the alleged previous occasions of cracking and the absence of any screening protocols of its equipment. It is alleged that such are misrepresentations by silence. Silence can constitute a misrepresentation and “misleading or deceptive conduct” where there is a duty to disclose or, put another way, if the overall circumstances render the failure to speak up as misleading or deceptive; (see Commonwealth Bank v Mehta (1991) 23 NSWLR 84 per Samuels JA at 88; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 per Lockhart J at 94, 95).

Trade Practices Act claim - parameters

I now draw attention to some of the principles which touch upon this case in particular, and which have emerged from the volume of litigation spawned by s.52. They are as follows:-

·....... Exercise of statutory construction:
Construing ss.52 and 82 is an exercise of statutory interpretation. So, effect has to be given to the ordinary meaning of the words employed in sections (see Brown v Jam Factory (supra) per Fox J at 348; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (supra) per Lockhart J at 93).
·....... Relevance of common law concepts:
Common law concepts drawn from, for instance, the law of torts, cannot qualify the meaning of the words but nonetheless “may prove helpful in deciding a case under s.52(1)”; (see Brown v Jam Factory (supra) per Fox J at 348).
·....... Beneficiary of action can be other than ‘consumer’:
Though s.52 is found in Part V of the Act which is headed “Consumer Protection” it is well settled that a person other than a consumer is entitled to claim for a breach of s.52; (see Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594). Accordingly, in this case there need be no debate as to the correct characterisation of Slattery.
·....... Conduct must be misrepresentative or lead into error:
For conduct to be misleading or deceptive, the conduct must convey in all the circumstances of the case a misrepresentation; (see Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202). In each case “it is necessary to examine the conduct whether representational in character or not, and ask the question whether the impugned conduct of its nature constitutes misleading or deceptive conduct”; (see Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (supra) per Lockhart J at 93). Whether particular conduct is misleading or deceptive is a question of fact which turns upon the circumstances of each case. In Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, Gibbs CJ at 198 said of the words of s.52 as follows “...one meaning which the words mislead and deceive share in common is to lead into error.” Whether conduct is “misleading or deceptive or is likely to mislead or deceive” is an objective question of fact for the Court to decide in all the circumstances of the case. The section contemplates the effect of the conduct on reasonable people; (see Puxu (supra) per Gibbs CJ at 198-9).
·....... Corporation is the usual respondent:
Subject to limited exceptions, s.52 proscribes the behaviour of “a corporation”. There is no dispute here that Brambles is a corporation.
·....... Conduct must be ‘in trade or commerce’:
The proscribed conduct must be “in trade or commerce”. In Concrete Constructions (NSW) Pty Ltd v Nelson (supra) at 604 Mason CJ, Deane, Dawson and Gaudron JJ said as follows:-
“... the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public. In some areas, the dividing line between what is and what is not conduct “in trade or commerce” may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character. The point can be illustrated by reference to the examples mentioned above. The driving of a truck for the delivery of goods to a consumer and the construction of a building for another pursuant to a building contract are, no doubt, trade or commerce in so far as the relationship between supplier and actual or potential customer or between builder and building owner is concerned. That being so, to drive a truck with a competitor’s name upon it in order to mislead the customer or to conceal a defect in a building for the purpose of deceiving the building owner may well constitute misleading or deceptive conduct “in trade or commerce” for the purposes of s.52. On the other hand, the mere driving of a truck or construction of a building is not, without more, trade or commerce and to engage in conduct in the course of those activities which is divorced from any relevant actual or potential trading or commercial relationship or dealing will not, of itself, constitute conduct “in trade or commerce” for the purposes of that section. That being so, the giving of a misleading handsignal by the driver of one of its trucks is not, in the relevant sense, conduct by a corporation “in trade or commerce”. Nor, without more, is a misleading statement by one of a building company’s own employees to another employee in the course of their ordinary activities. The position might well be different if the misleading statement was made in the course of, or for the purposes of, some trading or commercial dealing between the corporation and the particular employee.”

This is a major issue in this case and I will return to it later.
·....... ‘Intent’ is not relevant:
The intent of the defendant is not relevant. All that is required is that in fact the conduct was misleading or deceptive or likely to be so; (see Hornsby Building Information Centre v Sydney Building Information Centre (1978) 140 CLR 216 per Stephen J at 223).
·....... Reliance and causation:
To recover damages pursuant to s.82 the plaintiffs must prove that the loss or damage was sustained “by” the conduct which breached s.52. In Wardley Australia Ltd v WA (1992) ATPR 41-189 Mason CJ said at 40, 571:-
“The statutory cause of action arises when the plaintiff suffers loss or damage ‘by’ contravening conduct of another person. ‘By’ is a curious word to use. One might have expected ‘by means of’, ‘by reason of’, ‘in consequence of’ or ‘as a result of’. But the word clearly expresses the notion of causation without defining or elucidating it. In this situation, s 82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this court in March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506, except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act. Had Parliament intended to say something else, it would have been natural and easy to have said so.”

In this matter, arguments were directed to me about reliance and whether or not the plaintiffs have proved that Slattery himself relied on the conduct of Beare and therefore Brambles. This issue of the necessity for reliance is canvassed at length in Janssen-Cilag Pty Ltd v Pfitzer Pty Ltd (1992) 37 FCR 526, where Lockhart J, after an exhaustive analysis of the authorities, concluded, correctly in my view, that entitlement to recover loss or damage under s.82 of the Act is not necessarily confined to persons who rely on the representation made in contravention of s.52. At 531 Lockhart J said:-
“Section 82(1) should not be given a restricted meaning to be available only to the person who suffers loss or damage by reason of his own reliance upon the representations which constituted the relevant contravention of Pt IV or V; nor for that matter should it be given an extended meaning which strains the language used by the legislature. But a person who suffers damage by reason of or as a result of the conduct of the contravener (albeit that that person does not himself rely upon the representations) is not to strain the language of the subsection, but to interpret it according to its ordinary and natural meaning. For a person to recover under the section he must suffer loss or damage by reason of or as a result of the contravention. There is nothing unduly wide about that.”

·....... Vicarious liability:
The conduct of a servant, such as Beare in this case, which is “within the scope of the actual or apparent authority of the servant”, is deemed to be the conduct of the corporation - in this case Brambles; (see s.84(4) of the Act).
·....... Measure of Damages - Tort or Contract
The Trade Practices Act, in particular Parts IV and V, does not prescribe the measure of damages. So the question arises should the measure of damages be assessed in tort or contract. In Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 Mason, Wilson and Dawson JJ said at 11, 12 and 14 that the tortious measure of damages, namely, placing the injured plaintiff, so far as money can do it, in the position in which he or she would have been had the tort not been committed, “is appropriate in most, if not all, Part V cases, especially those involving misleading or deceptive conduct ...”.

Such then are some of the parameters for claims arising from breaches of s.52 of the Trade Practices Act. I now turn to my findings.

Liability of Brambles for damages pursuant to s.82 for breaches of s.52(1) of the Trade Practices Act - Findings

I find that the conduct of Beare, in connection with the provision of advice and equipment to effect the lift of the furnace, was conduct within his authority as a servant for Brambles and so is “deemed to be” the conduct of Brambles, the corporation. Further, I find that Brambles, by its servant Beare, misrepresented to Hendy and Slattery that the furnace could be lifted safely with the two 35 tonne jacks and the 14 tonne toes. The conduct, namely, the representation, was “misleading and deceptive” or was erroneous for all the reasons set out above in the findings as to common law negligence.
I find that the impugned conduct was engaged in by Brambles, by its servant or agent Beare, “in trade or commerce”. The facts in this case are distinguishable from those in Concrete Constructions (NSW) Pty Ltd v Nelson (supra). The applicant worker in Concrete Constructions (supra), whilst removing a grate over an air-conditioning shaft fell to the bottom of the shaft thereby injuring himself. The grate gave way. The allegation was that the foreman wrongly told the worker that the grates were fixed by three bolts on each side and that it was safe to remove them in a certain way. The majority justices of the High Court held that the pleaded facts did not give rise to a cause of action under s.52 because the foreman’s statement was not conduct “in trade or commerce”. The statement of principle by the majority justices is found at 604. I have set it out above. The misrepresentation by the foreman was held to be “an internal communication by one employee to another employee in the course of the ordinary activities in and about the construction of a building”; (see Mason CJ, Deane, Dawson and Gauldron JJ at 604, 605). In this case, however, Blueline and Brambles were involved in activities of a trading or commercial character. Blueline, albeit informally and for no direct reward, engaged Brambles’ expert assistance to lift the furnace for their mutual client Castalloy. This was clearly a primary trading or commercial activity which benefited a mutual customer, namely Castalloy. The fact that when considered in isolation, it was gratuitous, is not to the point; (see In re Ku‑Ring-Gai Co-operative Building Society No. 12 Ltd (1978) 36 FLR 134 per Deane J at 167). It was the product of a history of cooperation which existed at that time between the two companies and so in a sense was not gratuitous.
I find also that the plaintiffs suffered loss or damage “by” the above conduct of Brambles, by its servant Beare, as required by s.82. I find that there is established in the evidence the necessary causative link between the loss or damage suffered by the plaintiffs and the misleading or deceptive conduct of Brambles which I have found above. As indicated above, it is my view that the plaintiffs do not have to establish that the first-named plaintiff relied upon the “misrepresentation” of Brambles by its servant Beare. However, if I am wrong about that, there is abundant circumstantial or inferential evidence that Slattery, and Hendy, relied upon the advice and assistance provided by Beare. The mechanical jacks would not lift the furnace and so both Hendy and Slattery sought the assistance of Brambles with the encouragement of their boss. The fact that Slattery played a subordinate role in seeking out the help and was not present or within hearing distance during some of the conversations between Hendy and Beare does not prevent the inference arising that he too was reliant on, and indeed induced to act upon, the representations made by Beare. It matters not that by reason of his injury he is unable to give detailed evidence about the events. The inference of reliance arises from the primary facts and has not been rebutted. It is not necessary for Slattery to say the words “I relied upon the representations of Beare ...”; (see Gould v Vaggelas (1985) 157 CLR 215 per Wilson J at 236-239).
Therefore, I conclude that the plaintiffs have established that Brambles was in breach of s.52 and pursuant to s.82 the plaintiffs are entitled to the consequential loss or damage, the assessment of which, I will turn to in a moment.
Further, I am of the view that the allegations of failing to warn about earlier difficulties with the claw and lack of any protocols for monitoring the structural integrity of such equipment do not amount to misleading or deceptive conduct because in the overall circumstances the failure to speak up was not misleading or deceptive. I decline to make any finding about whether the failure by Brambles to have in place any protocols for checking the structural integrity of its equipment constituted misleading or deceptive conduct. Even if such silence constituted misleading or deceptive conduct I am not persuaded that it “caused” the loss or damage suffered by the first plaintiff.

Particulars of first plaintiff’s claim against Beare and Fletchers pursuant to s.84 of the Fair Trading Act for breaches of ss.56 or 63 of the said Act - the parameters

Section 56(1) of the Fair Trading Act provides:-
“A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”
Like its Commonwealth counterpart, the above section establishes a standard of conduct the breach of which provides a remedy in damages under s.84 of the said State Act.
Section 84(1) provides:-
“A person who suffers loss or damage by conduct of another in contravention of a provision of Part X (other than section 57) may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.”
The claim against Fletchers also involves s.63 which provides:-
“A person shall not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods.”

Fair Trading Act claims - parameters

In painting this glum picture, I have not overlooked the evidence that the plaintiffs, since the accident, have improved their lot by collecting from an insurance policy and spending the proceeds on, inter alia, a holiday home at Coobowie on the Yorke Peninsula and a cabin style fishing boat. Further, they have moved to a more suitable home at Hackham. There have also been driving holidays interstate.
For pain, suffering and loss of enjoyment of the amenities of life, I am of the view that the first plaintiff is entitled to a substantial allowance. I award him $120,000. Of that sum, I apportion $60,000 for past detriments.

Interest on past non-economic loss

The first plaintiff is entitled to interest on this heading of loss; (see s.39 of the District Court Act). Interest is allowed on only the past loss on the basis that the first plaintiff has been kept out of his money; (see Thompson v Faraonio (1979) 24 ALR 1). The period of the calculation is a matter for the discretion of the Court. In this case, there is no reason why the period of the calculation should not date back to the accident; (see Wheeler v Page (1982) 31 SASR 1). The interest rate for the calculation is 4 percent per annum (see MBP (SA) Pty Ltd v Gogic (1990-91) 171 CLR 657). The allowance should be discounted to take account of the accumulation of the principle sum over the period of the calculation. Accordingly, the calculation (ie $60,000 x 4% per annum x 7.25 years ÷ 2), results in an allowance of $8,700 for interest.

Economic losses

The first plaintiff is entitled to damages for economic loss being the extent to which the loss or diminished earning capacity, brought about by the accident, has been and will be productive of pecuniary loss; (see Graham v Baker (1961) 106 CLR 340 at 347; Mann v Ellbourne (1973) 8 SASR 298; Medlin v SGIC (1995) 182 CLR 1).
The plaintiffs were in a partnership called Southway Plumbing at the time of the accident, whereby presumably they intended to divide the income equally between themselves for the purposes of deriving some income tax benefits. The second plaintiff said that she did some book work but that the first plaintiff did “99 percent of the work”; (see BL Slattery p.169). At one time this type of arrangement had the potential of causing problems in the assessment of economic loss. However, it is now clear that an assessment of past and future loss of income for a plaintiff is not to be calculated by reference to some voluntary family arrangement such as a family trust or a husband and wife partnership agreement. Rather, the assessment is to proceed on the basis of the financial loss which results from the impairment of the plaintiff’s earning capacity. For instance, in this case, the assessment of the first plaintiff’s loss is not be calculated or limited by reference to his share of partnership profits; (see Husher v Husher (1999) 165 ALR 384). At 389 and 390 of Husher (supra), Gleeson CJ, Gummow, Kirby and Hayne JJ said:-
“There are two critical elements. First, the whole of the income of the partnership came from the efforts of the appellant and the exploitation of his earning capacity. As a matter of practical reality, his wife’s contribution to the income was negligible. Secondly, the partnership was a partnership at will. The appellant would very probably have chosen to maintain those arrangements but that was his choice. If he chose to make some other arrangement concerning the fruits of this labour, effect would be given to that choice, whatever view his wife may have held. What the appellant would have had under his control and at his disposal but for the accident was, therefore, the whole of the fruits of his skill and labour. And it is, then, the whole of those fruits that he has lost. In this regard, the case is no different from the injured plaintiff who would probably have devoted some or all of the income earned in the future to charity.”
Therefore, the assessment of economic loss in this case is to proceed in accordance with normal principles. Therefore, the male plaintiff recovers in his claim for damages the extent to which the loss of his earning capacity has in the past and will in the future cause pecuniary loss.
Further, since it is usually the case that the award is for net loss, the incidence of income taxation must be taken into account. The question then arises as to what rate of income taxation is to be used in the situation where an injured plaintiff is effectively splitting his income, albeit legitimately, with his wife and therefore pays less tax than would otherwise be the case? The case of Husher (supra), in this respect, adopts what Perry J said in Spargo v Haden Engineering (1993) 60 SASR 39 at 54. Namely, the tax rate to be utilised is that applicable if the whole of the gross earnings were apportioned to the claiming plaintiff.
I turn now to the assessment of past and future economic loss.

Past economic loss

To value this component of the first plaintiff’s loss it is necessary to examine the known earning history and make some predictions as to what might have come to pass in the seven and a quarter years since the accident.
The income taxation records, (see Exhibit P5), reveal the following earning history:-
1990/1991        Taxable income  $36,367
1991/1992        Taxable income  $38,519
1992/1993        Taxable income   $33,774
Some time in 1993, the first plaintiff forsook the sub-contracting work with D&G Plumbing. Mr Hollis, the owner and manager of the business, said when giving evidence on the 19th May 2000 that the business initially paid the first plaintiff $20 per hour and $25 per hour by the time the first plaintiff left in 1993; (see Hollis p.312; see also LJ Slattery p.39). Hollis added that plumbers of the ilk of the first plaintiff could “now”, (ie as at 19th May 2000) earn in excess of $30 per hour; (see Hollis p.313). Hollis agreed that there had been a lot of plumbing work around since 1993 and said that his business had expanded; (see Hollis p.314). I accept all of Mr Hollis’ evidence, including the tribute he paid to the first plaintiff’s qualities as a plumber and worker.
The first plaintiff’s father, Mr Edgar Slattery, gave evidence that he was intending to retire in January 1994. He said that he intended to pass his clients to his son. Further, he said that before the accident he had commenced this process with a client named Carbone. He assisted his son prepare a tender for work to be carried out for Mr Carbone at St. Marys. However, as a result of the accident, Mr Slattery senior did not retire at the beginning of 1994. Indeed, he completed the Carbone job for his son together with a number of other jobs. He said he completed four other jobs for existing clients, whom he intended to refer to his son. The receipts from this work totalled $7,325; (see EC Slattery p.308). Further, he said that he carried out $6,500 worth of plumbing work for new clients whom he would, but for the accident, have referred to his son; (see EC Slattery p.308). I accept, without reservation, the evidence of Mr Slattery senior which, in the end, was not challenged. I accept also that there was some prospect in early 1994 of the first plaintiff obtaining work from Mr Peter Hurley, a hotelier in Adelaide, who was known to the first plaintiff; (see BL Slattery p.172).
I now turn to the issue of the unemployment benefits. The first plaintiff accepted that, from October 1993 until December 1993, he was in receipt of unemployment benefits. The evidence satisfies me that from the beginning of 1994 the first plaintiff would have slowly built up to the earning levels indicated by his earlier taxation records and the evidence of Messrs Hollis and Slattery senior. It would be a misrepresentation to treat the $6,936 net profit from the plumbing business for the first half of the 1994 financial year as indicative of his earning capacity..
Accordingly, in order to ascertain the value of the first plaintiff’s earning capacity, I intend to draw upon the income taxation records for the financial years 1992, 1993 and 1994, combined to some extent with the evidence of Mr Hollis. The aggregate of gross taxable income for the said three taxation years is, rounded up, a total of $108,750. This translates to a weekly net taxable income of say $700 per week. The evidence of Mr Hollis is some indicator of what the first named plaintiff could have earned from 1993 onward. As I have indicated earlier, he said that the first plaintiff was earning about $25 per hour in 1993 when he ceased working for D&G Plumbing and could have been earning more than $30 at the time of trial. The gross weekly income therefore ranges from $1000 to more than $1200 per week for a 40 hour week. From these gross weekly figures, the expenses of running the business of a sub-contract plumber must be deducted to arrive at net income before tax. The first plaintiff’s income taxation returns indicate that these business expenses were about 10 percent of his gross receipts in the 1990/1991 year and increased to about 15 percent by the 1992/1993 year; (see Exhibit P5). Taking 15 percent, the Hollis figures then reduce to a span of between $850 to more than $1020. So, the overall range of indicators of net weekly loss before tax are from $700 to more than $1020 over the period of past loss being from 29th December 1993 to date of this judgment 29th March 2001.
Since the accident, the first plaintiff has been in receipt of income maintenance from WorkCover. So the exercise of calculating the past loss is complicated by the requirement that the first plaintiff be compensated, to the extent of the WorkCover income maintenance payments, at the gross amount of those payments; (see Fox v Wood (1980) 24 SASR 138). Underlying this requirement is the statutory obligation to repay WorkCover the gross amount of such payment from this judgment. The plaintiffs’ counsel proffered to me in final address on the topic of past loss of income, two Schedules which include the quantum of the WorkCover payments. These payments were proffered and discussed without demur. I will assume they are agreed. The Schedules also included tax rates said to be applicable to the various levels of income the subject of the calculations. I accept the rates since there was no challenge to them, though I have consulted the applicable legislation as to the tax rates for the time since trial.
So, as a starting place for a calculation of the first plaintiff’s past loss of income, I set out hereunder the Schedules. I have extrapolated from the calculations to account for the passage of time since trial and, as indicated, I have used the “post GST” reduced tax rates for the period from 1st July 2000 to this judgment, namely, 29th March 2001. It can be seen that the effective rate of income taxation for the first plaintiff given the dependant spouse rebate and the allowance for dependant children is approximately 21 percent in the first Schedule and 26 percent in the second.

Period of Past Loss	Projected Past Gross Earnings	Actual Earnings	WorkCover Payments (Gross Received)	Projected Gross less WorkCover Gross	Net after Tax Value of Projected Gross less WorkCover Gross received “net surplus”
1/1/94 - 30/6/94	$700/wk = 18,200	Nil	15,250.75	2,949.00	35% tax à 1,917.00 net
1/7/94 - 30/6/95	$750/wk = 36,400	Nil	29,324.43	7,075.00	34% tax à 4,670.00 net
1/7/95 - 30/6/96	$800/wk = 41,600	Nil	24,762.36	16,837.00	34% tax à 11,112.00 net
1/7/96 - 30/6/97	$850/wk = 44,200	Nil	25,917.98	18,282.02	38% tax à 11,335.00 net
1/7/97 - 30/6/98	$900/wk = 46,800	Nil	26,620.99	20,179.01	38% tax à 12,510.00 net
1/7/98 - 30/6/99	$950/wk = 49,500	Nil	27,487.32	22,012.68	40% tax à 13,207.00 net
1/7/99 - 30/6/00	$1000/wk = 52,400	Nil	28,395.00	23,605	40% tax à 14,163.00 net
1/7/00 - 29/3/01	$1050/wk = 40,950	Nil	21,296.00	17,201.25	21% tax à 13589.00 net
$199,054.83	$82503.00

So on the basis of this calculation the first plaintiff’s past loss is the WorkCover payments of $199,054.83 plus the net after tax surplus of $82,503.00 a total of $281,557. 83.

Period of Past Loss	Projected Past Gross Earnings	Actual Earnings	WorkCover Payments (Gross Received)	Projected Gross less WorkCover Gross	Net after Tax Value of Projected Gross less WorkCover Gross received
1/1/94 - 30/6/94	$700/wk = 18,200	Nil	15,250.75	2,949.00	35% tax à 1,917.00 net
1/7/94 - 30/6/95	$750/wk = 36,400	Nil	29,324.43	7,075.00	34% tax à 4,670.00 net
1/7/95 - 30/6/96	$800/wk = 41,600	Nil	24,762.36	16,837.00	34% tax à 11,112.00 net
1/7/96 - 30/6/97	$900/wk = 46,800	Nil	25,917.98	20,882.00	38% tax à 12,946.00 net
1/7/97 - 30/6/98	$1000/wk = 52,000	Nil	26,620.99	25,379.00	38% tax à 15,735.00 net
1/7/98 - 30/6/99	$1100/wk = 57,200	Nil	27,487.32	29,712.00	40% tax à 17,827.00 net
1/7/99 - 30/6/00	$1200/wk = 62,400	Nil	28,395.00	34,005.00	40% tax à 20,403.00 net
1/7/00 - 29/3/01	$1300/wk = 50,700	Nil	21,296.00	29,404.00	26% tax à 21,759.00 net
199,054.83	$106,369.00

On the basis of this calculation the first plaintiff’s past loss is the WorkCover payments of $199,054.83 plus the surplus of $106,369.00, a total of $305,423.83.

The above calculations are self-explanatory. The first table assumes an annual increase of $50 per week from $700 per week in the first half of the 1994 year and arriving at $1050 per week for the period ending 29th March 2001. The second table assumes an annual increase of $100 per week reaching $1300 per week in the year 2001.
The above calculations give a false air of precision to the exercise of calculating the first plaintiff’s past loss. At best, the exercise is one of informed estimation. The permutations are endless. However, his receipts from 1991 to 1993 are not suggestive of the climbing weekly incomes in the above Schedules. Indeed, there is a slight downturn in the 1993 year. That was a time of recession. The Schedules whilst helpful paint an overly optimistic picture of what might have happened in the last 7¼ years.
A better indicative calculation is to use the receipts from D&G Plumbing as at 1993 when the first plaintiff left, that is $25.00 per hour for a 40 hour week and assume that level of income throughout the past 7¼ years. Accordingly, $25 per hour gross for a 40 hour working week is $1000 per week. Deducting 15 percent for business expenses, reduces that to $850.00 per week or an annual taxable income of $44,200.00. For 7¼ years the total is $320,450 before tax. Deducting the $200,000 gross repayable to WorkCover leaves a surplus of $120,450. The average of the tax rates lifted from the Schedule is 35 percent. So the net after tax surplus notionally due to the first plaintiff after repayment to WorkCover is $78,292.50. Again, I think even starting at $25.00 per hour as at January 1994 is still a little optimistic given the history. In my view, it would have taken the first plaintiff some further time to build up to that level of income, though I am content that he would have done so and indeed achieved a slightly higher income level by now.
The calculations could be endless. I am of the view that a fair estimate of the first plaintiff’s past loss of earnings to the 29th March 2001 is $250,000, which sum includes approximately $200,000 gross receipts from WorkCover, which is to be repaid.
I decline to discount the above allowance. The evidence of Mr Edgar Slattery and that of Mr Hollis of D&G Plumbing point, with reasonable certainty, to a continuity of work. The first plaintiff’s health was good. In my view, during this closed period of 7¼ years, the prospects are that he would have worked uninterrupted by such adversities as illness, loss of continuity of work or a non-compensable disabling accident.

Interest on past economic loss

Interest is allowed on this past component of economic loss. The period of the calculation is from the time the liability to pay arose, namely, the date of the accident to judgment. Since the allowance for past loss of earnings is calculated on the value of the losses as they occur, the prevailing commercial interest rates are appropriate; (see Tripodi v Leonello (1982) 31 SASR 9 per Jacobs J at 17). The appropriate rate of interest is 8 percent being an approximate average for the commercial rates prevailing over the period from 29th December 1993 to the present time; (see 3rd Schedule Supreme Court Rules). Interest on damages prior to judgment is awarded “to compensate a plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period”; (see MBP (SA) Pty Ltd v Gogic (supra) at 663). In this case, much of the first plaintiff’s past economic loss has been paid to him by WorkCover. However, there is a shortfall as indicated in the above Schedules. Therefore, deducting from the allowance of past loss that which is to be repaid to WorkCover, the amount of unreceived past loss of income is $50,000. It is upon this sum that the first named plaintiff is entitled to interest; (see Batchelor v Burke (1981) 148 CLR 448 per Gibbs CJ at 450-5). Accordingly, the calculation (ie $50,000 x 8% per annum x 7.25 years ÷ 2) results in an allowance for interest of $14,500. The discounting by half is to account for the slow build up of the principle over the period of 7¼ years as opposed to it being owed on day one of the period of loss.

Future loss of earnings

I now turn to the first plaintiff’s future loss of earnings or earning capacity.
I will not repeat in detail the evidence of, in particular, Professor Burns as to the first plaintiff being unemployable. This view, in large measure, is supported by the other medical, psychiatric and psychological evidence; (see Neurology Dr J.P. Rice Exhibit D4 p.2, Psychiatry Dr Zsolt Lukacs Exhibit P4 pp.28, 29, 33, and Professor Robert Goldney Exhibit D4 pp.12, 13, Neuropsychology Mr Anthony Walsh Exhibit D4 p.23, General Surgeon M.R. Ravindran Exhibit P4 pp.72, 74). Whatever the differing emphasis, I find that the first plaintiff, for all practical purposes, is unemployable because of the lack of motivation.
The plaintiff can drive a vehicle, cut a lawn and tend a garden, but he is not able to organise himself, concentrate and persist at work in a regular structured and competitive way, such as is required by the market place; (see Burns pp.514, 521, 522, 537). Professor Burns said that work on a regular basis would need to be in a sympathetic employment situation; (see Burns p.522). Even if the first plaintiff could obtain such a job, it would not cause any but a modest discounting to the allowance for future loss of earnings because of the plainly tenuous nature of any such position; (see Gipson v BHAS (1985) 120 LSJS 458 per King CJ at 465).
So what is the value of this lost capacity for work? The problem with such calculations results from the difficulties associated with making reliable predictions about the first plaintiff’s pre-accident working life and the amount of his prospective earnings. I find that the first plaintiff, like his father, but for the accident, would have worked as a plumber until retirement at about the age of 60 to 65 years. Plumbing work plainly requires some dedication and a degree of physical fitness. The first plaintiff had both. I will address the issue of contingencies in a moment.

The first plaintiff was receiving $25.00 per hour when he ceased work with D&G Plumbing in 1993. Mr Hollis said that as at May 2000, he, as a sub-contract plumber, could have commanded “more than $30.00 per hour”. In order to estimate the weekly loss, it would not be unreasonable to start at the midpoint, namely, a gross hourly rate of $27.50 or $1100 per 40 hour week. Taking into account a 15 percent reduction for the costs of running a sub-contract plumbing business, the net weekly income before income tax becomes $935. Income taxation of approximately 19 percent reduces that sum to $760.00 per week.
It is here in fixing the weekly loss that I should bring to account any residual earning capacity. The first plaintiff can perform, in a fashion, mundane maintenance work and has been doing so at the Christies Beach High School three hours per day for three days a week. He does not attend regularly and when he does, he is left to his own devices. He rests often; (see LJ Slattery pp.64, 65). As I have indicated, this evidence is hardly indicative of any true residual capacity. It did not move Professor Burns to consider the first plaintiff to be employable or even self employable. Indeed, Professor Burns and the second plaintiff expressed the views that the first plaintiff could not manage a Par 3 golf course or a caravan park; (see Burns pp.522, 523; see also BL Slattery pp.195, 196). I agree. The first plaintiff’s wife did venture the suggestion that he might be able to undertake a self employed gardening business; (see BL Slattery pp.196, 216). I find that he would be capable of some menial work in a structured, supervised and accommodating setting, but that it would be tenuous and poorly rewarded. I reduce the tentative weekly loss figure by $60.00 to $700 to account for this slender residual capacity.
Counsel for the plaintiffs placed before me an Actuarial Certificate effective as at 16th May 2000; (see Exhibit P19). Rather, I have had regard to the Australian Life Tables 1980-82 published at p.545 of Lunz, Assessment of Damages 3rd Edition. The average of two annuities producing $1.00 per week to a male aged 42 years, the annuities to cease respectively at the ages of 60 and 65 years is $758. The discount rate in the tables is 3 percent which is appropriate to this case; (see Todorovich v Waller (1981) 150 CLR 402). So, applying the estimated weekly loss of $700.00 net after tax to the average annuity value produces a capitalised figure of $530,600.00.
I now turn to the question of discounting for the so called vicissitudes of life such as illness, lack of continuity of work, and non-compensable disabling accidents. There is no presumption in favour of discounting for the “adverse contingencies of life”; (see Bresatz v Przibilla (1962) 108 CLR 541 per Windeyer J at 543; Campbell v Nangle (1985) 40 SASR 180 per King CJ at 186, 187; Fitzgerald v Goonan (unreported) [2000] SASC 332). I acknowledge that, putting the accident aside, the first plaintiff had a long journey ahead. However, there is no evidence which would support a finding that the above disadvantageous contingencies of life would outweigh the advantageous. There is at least an equal prospect that the first plaintiff may have done better but for the accident than the above prognosis suggest. He was a Master Plumber about to take over this father’s business. He had history of hard remunerative work. He was well regarded and sociable with good health and an happy marriage.
Accordingly, there is no basis to discount.
I round up the figure slightly and fix the allowance for future economic loss or loss of future earnings at $532,000. This loss attracts no interest; (see Thompson v Faraonio (supra) at 6).

Cost of hospital attendance - Wilson v McLeay damages

As indicated, the second plaintiff visited her husband daily at the Flinders Medical Centre and at the Vales. He was an in-patient at these institutions for some three weeks; (see BL Slattery p.173). The first plaintiff is entitled to an award under this heading on the basis that his wife’s attendances had the capacity to assist in his treatment. There was no direct evidence establishing the benefit to the first plaintiff of the wife’s visits but I infer that such was the case. This award is in the nature of special damages; (see Wilson v McLeay (1961) 106 CLR 523; Richardson v Schultz (1980) 25 SASR 1). The second plaintiff, in order to visit her husband and be with him, made arrangements with her mother to mind the child Amy; (see BL Slattery p.173, 174). She travelled to and from the Flinders Medical Centre and the Vales Hospital from Morphett Vale to be with him each day. There is only generalised evidence as to this and so I must err on the side of moderation. I allow $1000 for this heading of loss which allowance includes interest. Included under this heading is the value of the voluntary service, namely, baby sitting, provided by the second plaintiff’s mother.

Gratuitous services - Griffith v Kerkemeyer Damages

The first plaintiff is entitled in his claim to recover in damages an allowance for the care and attention provided for him by his wife, quite apart from the attendance upon him at the hospital by her; (see Griffith v Kerkemeyer (1977) 15 ALR 387; Van Gervan v Fenton (1992) 175 CLR 327). The underpinning characteristic of this loss is the provision, albeit gratuitous provision, of care and attention for the victim of the accident. The need for the provision of this service, care or attention must necessarily have been created by the neglect or breach of duty of the defendants. I find from all of what the second plaintiff has said that she was providing gratuitously a species of supervisory care. She watched over him in the early months. He was not able to drive a motor car for six months. He had continuing headaches and was dizzy, uncommunicative and irritable. The second plaintiff drove him to the Flinders Medical Centre for the various appointments in the outpatient clinic. All this persisted for some six months; (see BL Slattery pp.174-176). Indeed, the second plaintiff said that she contemplated leaving the relationship in about 1995 because she “just couldn’t cope with the two babies and him”; (see BL Slattery p.195). It should be noted that the second plaintiff gave evidence to the effect that during this period she was forced to attend to all the outside work which her husband had previously done, namely, tending to the garden, the swimming pool etc. This work which is not directed to the needs of the victim is not within the character of the loss recoverable under this heading.
I allow the sum of $5000 under this heading. This award attracts interest on an ordinary commercial basis; (see Marsland v Andjelic (1993) 32 NSWLR 649 at 653-4; s.39 of the District Court Act). Again, the rate of interest is the ordinary commercial rate as set out in the Third Schedule of the Supreme Court Rules. This is due to the fact that I am not fixing it by reference to present day dollar values, but rather to the value as best I can estimate it at the time of the liability, namely, the first half of 1994. The calculation, ($5,000 x 8% per annum x 7.25 years) results in an allowance for interest of $2,900. I have not discounted the accumulation of this loss over the period since the accident because I take the view that the loss crystallised in 1994 and so it has been running since then.

Special Damages

Special damages are agreed in the sum of $23,830.63. The accounts making up that sum have been paid by WorkCover and so there is no interest entitlement on this loss.

Cost of management of the fund

The evidence in this matter, in particular from Professor Burns, is that the first plaintiff would not be competent to administer for himself the large sum of money which is his entitlement in this action; (see Burns p.549). Accordingly, a protection order should be made pursuant to s.8a of the Aged and Infirm Persons’ Property Act 1940. The Public Trustee will be appointed to take possession, control and manage the first plaintiff’s estate until such time as it is abundantly clear that he can manage it himself. Such being the case, the first plaintiff is entitled to allowance in his damages for the cost of management of the fund; (see Campbell v Nangle (supra)). I indicate that I would order payment out to the second plaintiff of the amount of the award for Gratuitous Services including interest thereon; (see Griffith v Kerkemeyer (supra) per Stephen J at 176). Further, I indicate that I will favourably entertain an application to order the payment out of the first plaintiff’s damages, a further sum of $85,000, for the purposes outlined in the letter from the plaintiffs’ solicitors dated the 22nd March 2001. Therefore, the sum to be managed and administered by Public Trustee will be the balance of the award to the first plaintiff. The cost of managing the fund is $32,187.00. I allow that sum in the first plaintiff’s claim.
I now move to the second plaintiff’s claim for impairment of consortium.

Second plaintiff’s claim for loss and/or impairment of “consortium”

This cause of action at common law was only available to a husband. By s.33 of the Wrongs Act (SA) 1936, a corresponding right was conferred on a wife for the loss or impairment of her husband’s consortium.
This cause of action originally termed consortium et servitium, given the statutory extension, entitles a spouse to recover damages for the lost or impaired comfort society and fellowship previously provided by the other spouse and includes damages for the loss of ability of the injured spouse to perform household duties; (see Toohey v Hollier (1955) 92 CLR 618). In particular, it is confined to “material or temporal loss capable of estimation and money”; (see Toohey (supra) at 628). There is to be no recovery for suffering, distress or depression consequent upon the injury to the other spouse; (see Andrewartha v Andrewartha (1987) 44 SASR 1).
So, in this matter, there are two aspects to have regard to, namely:-

the loss which the second plaintiff suffers as a result of her husband being unable to carry out services around the house; and
the loss or impairment of his society, companionship and comfort including the deprivation of and/or diminution in the quality of their sexual relations; (see Kealley v Jones (1979) 1 NSWLR 723 per Samuels JA at 750-1).

In respect of the loss of services, I find that the second plaintiff carried out all the outside gardening and maintenance work previously done by the first plaintiff and it was not until the expiration of something like six months after the accident that the first named plaintiff slowly resumed this maintenance work, albeit in a listless and disorganised way; (see BL Slattery pp.174, 175).
In respect of the loss or impairment of society and companionship, the second plaintiff painted a glum picture indeed. She said that before the accident her relationship with her husband “was wonderful” and if they went out somewhere “we used to hold hands and he would pat me on the bottom and give me a kiss on the cheek in front of people where he was just affectionate and loving”; (see BL Slattery p.172). According to her, he was “very loving, very outgoing, a very happy person, always shows his affection”. She added that the sexual relationship between them was “excellent”; (see BL Slattery pp.172,173). After the accident all that changed. The second plaintiff said that her husband has been miserable, inert and uncommunicative. He is no longer outwardly affectionate and the sexual relationship between them “is probably about a quarter of what it used to be”; (see BL Slattery p.178). She described her husband as anti-social and reclusive. Together they have decided to have no more children despite a pre-accident determination to have another child after Cody; (see BL Slattery pp.194, 195). Indeed, as previously indicated, in 1995 the second plaintiff was contemplating abandoning the relationship. In the course of her evidence, she accepted only a slight improvement over time. I accept, without reservation, what the second plaintiff says about these matters.
Accordingly, it is clear that, whilst the loss of servitium has ceased, the impaired consortium is ongoing and probably permanent.
I am mindful in assessing damages under this heading, that the damages do not include compensation for non-temporal or spiritual consequences of impaired consortium, namely, feelings of loneliness and emotional distress which result from having an injured spouse. Quarantining those aspects is difficult. I allow the sum of $25,000 under this heading. Of that amount, I allocate or apportion $8,000 to the past and the balance to the future.
Interest will be allowed on the past component of that loss and since it is a temporal loss, interest should be allowed at the commercial rate. The calculation, ($8000 x 8% per annum x 7.25 years ÷ 2), results in an allowance for interest of $2,320.

WorkCover Payments - effect on assessment

On the 15th March 2001, I foreshadowed my decision on both liability and quantum to enable the plaintiffs’ representatives to adduce evidence of Public Trustee’s charges for managing the first plaintiff’s fund of damages, for incorporation into the final judgment. At that time, counsel for the plaintiffs, Mr Rau, told me that WorkCover had, since the time of trial, redeemed the first plaintiff’s income maintenance payments by payment to him of a lump sum. On the 26th March 2001, at my request, particulars of the WorkCover payments were placed before me in the form of a letter from WorkCover’s solicitors. I set out the relevant text of the letters:-
“We confirm your request that we provide final advice as to the amount that the WorkCover Corporation seeks by way of recovery, pursuant to the provisions of Section 54 of the Workers Rehabilitation and Compensation Act.
1.     Medical and like expenses pursuant to Section 32 of the              $24,115.41
         Workers Rehabilitation and Compensation Act (“the Act”)
2. Income maintenance payments made pursuant to Section 35 177,274.06
of the Act.
3. Lump sum payment pursuant to Section 42 of the Act to 76,750.00
         redeem the future entitlement to income maintenance payments
4. Lump sum payment pursuant to Section 42 of the Act to 750.00
         redeem the ongoing entitlement to income maintenance expenses
5. Lump sum payment pursuant to Section 43 of the Act in 36,128.90
relation to permanent residual disability assessment
Total   $315,018.37
We confirm that your client was in receipt of income maintenance payments, on a weekly basis, up until 21 June 2000. On that date he received the lump sum payments pursuant to Section 42 of the Act, in redemption of his ongoing/future entitlement to both income maintenance payments and medical and like expenses.”

In my view, the s.43 lump sum payment of $36,128.90 made on 21st June 2000, being in the nature of a payment for non-economic loss, has to be brought into account in the calculation of interest on the past component of non-economic loss. A slight discounting of the previously calculated sum of $8,700 is required. I fix $8,000.00 interest on the allowance for past pain and suffering.
So too, the redemption payment of $76,750.00 on the 21st June 2000 should be brought to account in the calculation of interest on past economic loss. Again in my view, only a slight discounting of the previously calculated sum of $14,500 is indicated. I fix $13,000.00 as interest on the allowance for past loss of income.
None of the other payments impart on my assessment.

Conclusion re quantum

I set out a summary of the plaintiffs’ entitlement in this action.

First Plaintiff Past Future Total
non-economic loss

Pain and suffering 60,000 60,000 120,000
Interest 8,000 8,000

Economic loss

Loss of earnings  250,000             532,000               782,000
         Interest  13,000   13,000
         Loss of services  5,000   5,000
             (Griffith v Kerkemeyer’s claim)
         Interest  2,900   2,900
         Cost of hospital attendances
             (Wilson v McLeahy damages)            1,000   1,000
         Special damages  23,830   23,830

Cost of management of fund $32,187

$987,917

Second Plaintiff

Consortium et servitium 8,000 17,000 25,000
Interest 2,320 2,320

$27,320

Entry of judgments - whether above assessed loss appropriate to that of the successfully prosecuted causes of action

Putting aside the second plaintiff’s claim for consortium, the first plaintiff’s damages entitlement, calculated above, has been measured in tort, that is calculated with the object of placing the injured plaintiff “in the position which he would have been had the tort not been committed”; (see Gates (supra) at 11, 12, 14). This measure of damages is appropriate to damages pursuant to both s.82 of Trade Practices Act and s.84 of Fair Trading Act; (see Gates (supra) at 11, 12, 14).
Further, this Court, which is exercising Federal jurisdiction in respect of the Trade Practices Act claim, has jurisdiction pursuant to s.86(3) of the Act to award interest pursuant to s.39 of District Court Act; (see Truss v Brazier (1993) 1 QdR 691).
So, in respect of each successfully prosecuted cause of action being:-

common law negligence;
ss.82 and 52 of the Trade Practices Act;
ss.84 and 63 of the Fair Trading Act;

the first plaintiff is entitled to judgment for the above assessed losses plus interest, but to the extent that there be recovery from Beare and Brambles of only one lot of damages and interest thereon.

In my view the claim by the second plaintiff pursuant to s.33 of the Wrongs Act for impairment of consortium probably stands on a different footing. Such a loss would not be recoverable under with s.82 of the Trade Practices Act because I doubt that this Court has jurisdiction to award such damages under s.86(3) of the Trade Practices Act or by any parity of reasoning from Truss v Brazier (supra). It may be that such a loss would be recoverable under s.84 of the Fair Trading Act but as no argument was addressed to these issues and bearing in mind that there is full recovery by the second plaintiff in any event I do not propose further exploring it.
Therefore, there will be judgment for the first named plaintiff against the defendants, Beare and Brambles, in the sum of $987,917.00, which sum includes interest.
Further, there will be judgment for the second named plaintiff against the defendants, Beare and Brambles, in the sum of $27,320.00 which sum includes interest.
The actions against Fletchers are dismissed, or put another way there will be judgment for the defendant, Fletchers, against the plaintiffs.
I will hear the parties as to costs, and the final orders.

[2001] SADC 44

29 March 2001