Suresh v Jacon Industries Pty Ltd - [2005] NSWCA 202

NEW SOUTH WALES COURT OF APPEAL

CITATION: Suresh v Jacon Industries Pty Ltd [2005] NSWCA 202

FILE NUMBER(S):
40100/04

HEARING DATE(S): 23 May 2005

JUDGMENT DATE: 22/06/2005

PARTIES:
Kumada Suresh (Appellant)
Jacon Industries Pty Ltd (Respondent)

JUDGMENT OF: Mason P Santow JA Basten JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3677/00

LOWER COURT JUDICIAL OFFICER: O'Reilly DCJ

COUNSEL:
R T McKeand QC, D W Elliott (Appellant)
D J Hooke (Respondent)

SOLICITORS:
W D Hunt & Associates (Appellant)
Nevill & Edwards (Respondent)

CATCHWORDS:
Negligence - employer's duty of care to employee - hazardous task - failure to take reasonable steps to provide safe system of work - failure to provide sufficient instruction in relation to the extent and nature of the hazards involved
Contributory negligence - requirement of some level of understanding of the dangers involved. (ND)

LEGISLATION CITED:
Compensation to Relatives Act 1897 (NSW)
Factories, Shops and Industries Act 1962

DECISION:
(1) Appeal allowed and judgment of District Court set aside
(2) In place of the judgment below, (a) enter judgment for the plaintiff against the defendant; and (b) order the defendant to pay the plaintiff's costs
(3) Remit the matter to the District Court for assessment of damages payable to the plaintiff without reduction on account of contributory negligence of the deceased
(4) Order the Respondent to pay the Appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if qualified.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40100/04
DC 3677/00
MASON P
SANTOW JA
BASTEN JA
22 June 2005

KUMADA SURESH v JACON INDUSTRIES PTY LTD

This is an appeal from a decision of the District Court which held that Jacon Industries Pty Ltd (the employer) did not breach the duty of care it owed to an employee who was killed when the metal rod he was turning on a lathe, distorted at high speed and inflicted fatal injuries on the employee.

The issues for determination in the Court of Appeal include:

whether the employer breached its duty of care; and

whether the employee was contributorily negligent.

Held as to (i):

Per Basten JA (Mason P and Santow JA agreeing):

The use of the lathe at 600rpm to machine a rod which did not fit as snugly as it might have within the bush and which extended for some 880mm, unsupported, beyond the headstock, was an essentially hazardous task and known by the employer to be so.

The employer failed to take reasonable steps to provide a safe system of work by failing to give the deceased sufficient instruction to allow him to appreciate the extent and nature of the hazards involved in machining bar stock with a significant degree of extrusion from the headstock and the means of avoiding them.

Held as to (ii):

Per Basten JA (Mason P and Santow JA agreeing):

Where a competent and generally careful employee has adopted a practice which involved a hazard not shown to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCA 202
Decision Date: 22 June 2005

CaseChat Overview and Summary

The appellant, Mrs Kumada Suresh, as the widow of the deceased, appealed to the Court against a judgment of the District Court which dismissed her claim for damages against the respondent, Jacon Industries Pty Ltd, under the Compensation to Relatives Act 1897 (NSW). The claim was based on the respondent's alleged negligence causing the death of her husband while operating a computerised numerical control metal turning lathe.

The legal issues before the Court were whether the respondent employer owed a duty of care to the deceased employee to provide a safe system of work, and if so, whether that duty was breached by failing to take reasonable steps to provide sufficient instruction regarding the hazards associated with the operation of the lathe, particularly concerning the excessive length of an unsupported metal rod protruding from the machine. The Court also considered whether the deceased was contributorily negligent, and if so, whether any such negligence should reduce the damages awarded.

The Court reasoned that while the deceased was a competent and experienced machinist, and the task itself was relatively uncomplicated, the operation of the lathe with a long, unsupported rod spinning at high speed presented a significant hazard. This hazard was acknowledged by the respondent's supervisor. The Court found that the employer had a duty to ensure the deceased was aware of the nature of this hazard and the means to mitigate it, even if the deceased possessed the skills to implement those mitigations. As the respondent led no evidence to demonstrate it had taken reasonable steps to warn the deceased of the specific hazard or to ensure his understanding of the risks, the Court inferred that no such warnings or instructions were given. The Court concluded that the employer had breached its duty of care.

The appeal was allowed, and the judgment of the District Court was set aside. Judgment was entered for the appellant against the respondent, with the matter remitted to the District Court for the assessment of damages payable to the appellant without any reduction for contributory negligence. The respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

(1) Appeal allowed and judgment of District Court set aside

(2) In place of the judgment below, (a) enter judgment for the plaintiff against the defendant; and (b) order the defendant to pay the plaintiff's costs

(3) Remit the matter to the District Court for assessment of damages payable to the plaintiff without reduction on account of contributory negligence of the deceased

(4) Order the Respondent to pay the Appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if qualified.

Background

Background to the litigation

By proceedings commenced on 5 February 2002 in the District Court, the present Appellant, Mrs Kumada Suresh the widow of the deceased, sought damages against the Defendant pursuant to the Compensation to Relatives Act 1897 (NSW) on behalf of herself and her daughter. Her entitlement to compensation depended upon establishing negligence on the part of the Respondent. She was unsuccessful in the District Court and now appeals against the judgment and orders of that Court.Background The injury suffered by the deceased was sudden and catastrophic. Although no one witnessed the accident directly, the immediate cause of death is not in doubt. On the day in question, the deceased was operating a machine known as a “computerised numerical control metal turning lathe”, also referred to as a Mori Seiki SL-4 lathe. It was referred to colloquially as the CNC lathe, a name which will be adopted below. The CNC lathe was largely enclosed in a metal casing, but the one inch metal rod (referred to variously as “the rod”, “the bar” and the “stock bar”) the end of which was being threaded at the time of the accident, extended approximately 886mm beyond the end of the CNC lathe, through a circular metal grip known as a cast iron spacing bush (“the bush”). The bush was located at a point described as “the outboard end of the headstock assembly”. The stock bar being threaded was clamped in the spindle of the lathe which, in accordance with a speed fixed by the operator, rotated at 600 rpm. The stock bar extending beyond the outboard end of the headstock passed through a fibreglass headstock guard, which was bolted at one end to the casing of the headstock and fully enclosed the outboard end of the headstock. The guard had a circular hole which allowed the stock bar being machined to pass through the guard into the headstock and thus through the machine to the operating area where the die which was used to thread the end of the rod was located. The die was held in a unit called the “tool post”. If machining was required towards the middle of a long rod, there was a further section of the lathe known as the “tail stock”. Like the headstock, a function of the tailstock was to hold the rod steady so that, inside the spindle, it spun truly along its centreline. The tailstock was not being used in the present case, because the threading was being undertaken at the end of the rod. The importance of holding the rod firmly so that it spun along its centreline was demonstrated in unequivocal fashion in the present case. Where one end of the rod was unsupported, and was spinning at high speed, any deviation from the centreline would have a tendency to cause the unsupported end to bend: once it started to bend, the tendency would be rapidly accentuated, so that the unsupported end would bend until it revolved like a propeller blade. That is precisely what happened in the present case. After the accident, the rod, extending from the headstock, was bent at almost 90° to the centreline of rotation.

Evidence

Evidence Before The Court

As may be seen from the respective positions, a proper assessment of the case involves both general considerations and specific circumstances. It is appropriate to commence with the general considerations, as the specific circumstances must be fitted within the general context in order to appreciate the causative effect of the different factors in relation to the accident.Evidence of Respondent’s officers With the knowledge of the accident itself and the evidence of Mr Burn, it is possible to understand, with hindsight, the risk involved in the procedure adopted with the CNC lathe on the day in question. In relation to the extrusion of the rod beyond the headstock, the statements of both the supervisor, Mr Varga, and the managing director, Mr Rutten, contain matters relied on by the Appellant. As might be expected, their statements were equivocal or ambiguous in some respects and, as neither gave oral testimony at the trial, difficulties remain in assessing their evidence. The more specific evidence was given by Mr Varga. In relation to the hazard involved in the present instance, he answered a number of questions from the Workcover investigator.“Q27How often does Jacon Industries Pty Ltd receive jobs of making tie rods of excessive length or over two metres?A27Nothing above two metres. (Michael [Varga] pointed out that the order on Drawing no. 1 was for 1925mm.Q28Are you aware that a material protruding from the end of the spindle past the guard of the CNC metal-turning lathe is a hazard?A28Yes, it is a hazard. I’ve learned from the time I’ve been introduced on working on lathes that you do not have bars protruding past the end of the spindle or the guard without a bar feeder or a bar support.Q29What equipment on site does Jacon Industries Pty Ltd have for guarding or supporting the protruding length at the end of the spindle past the guard of the CNC metal-turning lathe?A29We don’t have one for the CNC but we have one for the turret lathe. For the CNC, we normally bush the end of the spindle to suit the particular bar.Q30What system of work was in place for the safe operation of the CNC metal-turning lathe?A30Safety was always my concern. But I felt that Suresh was competent enough as a matured tradesman. So, for me, to watch over his shoulders I didn’t think was necessary as they knew the safety aspect and the demands towards safety. …Q31 Is there anything you wish to add regarding this matter?A31In my opinion, although he had taped around the bar to make up for the slack in the bush; which was still a bad practice but it would still be safe because it was only a minute difference between the bar and the bore of the bush. It would have been safe if it weren’t for the extra length of the bar which was protruding.” The first inference which can be drawn from this record of interview, with some confidence, is that Mr Varga was in little doubt that an unsupported rod of any length protruding beyond the end of the spindle was a hazard. It may also be inferred that, in relation to the CNC lathe particularly, he would have treated anything beyond two metres as hazardous. Further, as the job in question was within about 4% of the limit, that evidence invites a question as to the nature of any instruction given to the deceased with respect to the particular job.

Decision

Reasons for decision

After referring to a number of authorities which supported the proposition that the duty to provide a safe system of work will not extend to “isolated operations of no complexity outside the normal system or simple uncomplicated operations within it” his Honour concluded that the present was “a simple operation well within the competence of the deceased”. He continued:“The accident was caused by reason of the excessive length of the bar stock associated with the failure to machine a bush of the appropriate diameter.”Conclusions on appeal His Honour’s specific findings, noted above, may properly be accepted and, indeed, were not directly challenged in this Court. In other words, there is no doubt that the deceased was well able to machine a bush to an appropriate size and cut the bar stock to an appropriate length. It was also accepted that the machining of the relevant bar stock was a relatively uncomplicated activity for a machinist of the training and experience of the deceased. Finally, it was accepted that the deceased was a person with above-average skills and competence in the relevant area and was reasonably treated by the employer as someone well able to undertake tasks of the kind in question without supervision. However, none of these conclusions addresses the real question in issue. The critical question depends on recognition that the use of the lathe at 600rpm to machine a rod which did not fit as snugly as it might have within the bush and which extended for some 880mm, unsupported, beyond the headstock, was an essentially hazardous task. Further, it was known to be hazardous to the shop supervisor, Mr Varga. The ultimate question is whether the employer failed to take reasonable care in not ensuring that the deceased was aware of the nature of the hazard and the means of reducing it. The fact that the means were all within his competence to effect, does not mean that he appreciated the need to adopt them. There was no finding by the trial judge that the deceased was or should have been aware of the relevant hazards. Nor was there any evidence as to the nature of the training or expectations of machinists in that regard. Accordingly, once the hazard was admitted by Mr Varga, it was a matter for the Respondent company to establish that it took all reasonable steps to draw the nature of the hazard to the deceased’s attention and ensure that he understood the means of reducing such hazards to a reasonable level. The company called no evidence at all. The proper inference from the evidence of Mr Rutten and Mr Varga, outlined above at [31] and [24] respectively, is that the deceased was given no warning at all in this regard. No doubt partly in response to the allegation that the deceased was not qualified to work the CNC lathe or work it without supervision, supported in part by Mr Burn’s reports, which the trial judge clearly rejected, the Respondent company relied upon the statements of Mr Rutten and Mr Varga as to the competence, experience and care which the employer was satisfied the deceased exhibited. That evidence was, however, potentially double-edged for the employer. Once it was accepted that the deceased did have such qualities, and if it be accepted (as I would accept) that the deceased nevertheless proceeded to use the machine with a less than ideal bush, with too long an extrusion of bar stock and at the speed established, there is an inference that he simply had no understanding of the nature of the hazard he faced. That conclusion is given some further, if limited, support by the fact that when something drew his attention to the area of the headstock, he clearly had no immediate apprehension as to what might be occurring.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.