The South Australian Brewing Company Limited v Islam Hodzic No. SCGRG 92/1095 Judgment No. 3710 Number of Pages 6 Negligence Liability of Master for Injury to Servant

[1992] SASC 3710

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2), MATHESON(3) AND COX(1) JJ

CWDS
Negligence - liability of master for injury to servant - Plaintiff workman injured when attempting to repair machine - whether acting in disobedience to factory instructions - formulation of issues at trial - contributory negligence - extent of injuries.

HRNG ADELAIDE, 9, 12 October 1992 #DATE 10:12:1992
Counsel for appellant:     Mr S H Milazzo
Solicitors for appellant:    Mouldens
Counsel for respondent:     Mr D G W Howard
Solicitors for respondent: Rainford and Associates

ORDER
Appeal dismissed

JUDGE1 COX J The respondent workman sued the appellant employer in the District Court seeking damages for injuries suffered in an accident at work in July 1987. He claimed that the accident happened because the appellant failed to take sufficient care for his safety. It was agreed that there was an accident, but the appellant denied that it was responsible for it. There was also a dispute about the extent of the respondent's injuries. The learned District Court Judge who tried the matter found for the respondent in all respects. The appellant challenges the finding of negligence; alternatively, it says that the respondent was guilty of contributory negligence. It also complains that a part of the damages awarded to the respondent was for an injury that was not caused by the accident. 2. The respondent was born in Yugoslavia in 1943. He came to Australia in 1973. He had a number of factory jobs and in 1976 he began working for the appellant at its Southwark brewery. He was a factory hand. His duties included tending a machine called a Speed Safety Decrater. He was working on this machine when he had the accident. The function of the machine was to pick up empty bottles from crates and move them to another part of the production line. Precisely how it did this does not matter, but the process involved a system of eight long vee-belts that were designed to catch the neck of a bottle and remove it from its crate. About half an hour after the start of his shift on 2 July 1987 the respondent saw that two of the belts had come off their pulleys. He tried to replace them, using his bare hands, but the belts were very stiff and when forcing the second belt onto its pulley he caught his finger between the belt and another part of the machine and broke his right index finger. He says that he injured his right wrist as well. 3. That the accident happened in the way generally described by the respondent was not in issue. The question was whether it demonstrated any negligence on the part of the appellant. The appellant argued that, while a vee-belt occasionally came off its pulley, it was the job of the maintenance fitters to replace it, using proper tools for that purpose, and that if the respondent hurt himself while gratuitously, indeed disobediently, trying to do the work of the appointed specialist he had only himself to blame. 4. The respondent's evidence included the following passage -
    "Q. Whereabouts, when the accident happened, whereabouts
    were you exactly?
    A. I was at the machine watching the bottles going through
    then suddenly the bottles start smashing. I stopped the
    machine, I had a look underneath, I couldn't see nothing from
    that side, I had to go under the machine on the other side, so
    when I went on the other side I realised there was a belt off.
    Q. I just want to interrupt you there. How often had this
    been occurring in the past?
    A. This belt sometimes coming every couple of minutes at that
    time. We can just fix it, put it on, restart the machine, you
    look at the bottles, it comes off again.
    Q. Can you tell the court, what did you do?
    A. What I do, I just can (clean?) up all the glass, take off
    the bottles off the belts, make sure that all bottles is out,
    push the glasses backward, make nice and clean there that I can
    reach those belts, try to put them on.
    Q. Then what happened?
    A. So, when I clean up all the bottles there and glass,
    everything, I realised there was two belts off, not one but two,
    so first I put one which is deeper inside and that one on the
    outside, so when I put that belt I realise straight away that I
    hurt myself there, because there is not much room to fix that,
    not only that those belts is very stiff and you can't stretch
    them, you just have to use your force to make sure they go back
    to that little grille where they're going around.
    Q. Were any tools provided to do this?
    A. There is no tools for us, because we are not allowed to
    use the tools there. There is also no fitters in that
    department, the fitters is far away from our department, so by
    the time you go to see the fitter, we lost at least 15 or 20
    minutes on production, so every time, if you go there, when the
    belt's off it means it wouldn't be good enough to operate that
    machine. You have to. You've got no choice but you have to fix
    up every time that belts go off, we have to fix him as soon as
    we can and keep going with the production, to minimise the loss
    of production.
    Q. How much pressure was there to maintain production?
    A. There was very big pressure at that time because we was
    running behind schedule. Every day we got the sheets made how
    much you have to produce. If you can't produce that that day
    for that particular eight hours, you have to stay longer, to
    make sure to produce that amount it was just required for us to
    choose.
    Q. Were you told that, if the belts came off, that you had to
    go and get it fitted and (get a fitter to?) put them back on?
    A. I was never told to do that. We was told by the leading
    hand to fix up ourselves.
    Q. What was the leading hand's name?
    A. My leading hand at that time was Les Grant.
    Q. Can you tell the court approximately how often the belts
    used to come off?
    A. I repeat again, every couple of minutes, every three
    minutes some time, every time, but very often, when I stay
    there, I certainly change every one hour around the places, then
    after we would change every half hour..." 5. The learned trial Judge appears to have generally accepted this evidence. It was supported in substance by the respondent's workmate, Mr Dolan, whom the Judge considered to be an impressive witness. Dolan said that a belt frequently came off the Decrater, sometimes five times a day, and the production workers would try to put them back manually. Sometimes the leading hand would try, too. It was only when all such attempts had failed that a fitter would be called in. The method used by the fitters was to slacken off the tension pulley with a spanner and replace the belt, using the proper tool, but no tool was provided to the production workers; indeed, they were not allowed to use tools. Dolan confirmed, as other witnesses did, that those on the production line were under pressure to keep the machines going. 6. The appellant called Mr Brown, its senior engineer and Mr Atkinson, its maintenance foreman. Brown said that if the belts were adequately maintained, they should not present any great problem. Atkinson said the belts did come off from time to time; when that happened it was the operator's duty to stop the machine and tell the leading hand who would summon a fitter. It was not appropriate for anyone to try and replace a vee-belt by hand. The question whether the respondent and his fellow workers had been specifically instructed to send for a fitter when a belt came off, and not to try and do the job themselves, raises a difficulty. The learned Judge, in discussing the pleadings, referred to one of the respondent's particulars of negligence that alleged that the appellant "failed adequately and properly to instruct the plaintiff as to the method to be adopted in rectifying the moving belts so that the said process could be carried out safely." As to this the Judge remarked that "the evidence ... was that the worker should simply stop the machine and call a fitter." Any possible uncertainty as to whether this was a finding on the Judge's part would appear to be removed by an earlier passage in the reasons in which the Judge stated, "The plaintiff said he was not allowed to use tools and the work procedure was that he had to call a fitter to replace the belt...". I interpret that to mean that the plaintiff (respondent) acknowledged in his evidence that this was the work procedure and that the men had been told that they were not to replace a belt by their own efforts. However, I have read and re-read the respondent's evidence and I can find no passage to that effect in it. On the contrary, the respondent was questioned several times about this and consistently maintained that he had not been instructed that belts should be replaced only by the fitters. When the cross-examiner tried to persuade him to a different view he restated his position and, indeed, added that there were occasions when the foreman was actually standing behind the process workers when they were fixing the machines. Dolan was not questioned on the subject by either counsel. The only witness to the contrary was Atkinson, and even in his case it may be that the evidence does not distinguish between specific instruction, on the one hand, and the normal and ideal work practice on the other. So if, as seems to be the case, the learned Judge was making a finding adverse to the respondent on this topic, he did not have much evidence to support it. He described the respondent as a good worker and, as I have indicated, appears to have regarded him as a generally satisfactory and reliable witness. On the strongly disputed question of the alleged wrist injury, he accepted the respondent's evidence in the face of a strong body of circumstantial evidence to the contrary from the medical witnesses. One might have expected that he would not reject the respondent on the instruction point without at least discussing all of the evidence on the subject, including, of course, the respondent's unambiguous and reiterated assertions, and without taking into account the appellant's failure to call the leading hand and the section foreman. I think it likely that, had the learned Judge not misread or misunderstood the respondent's own evidence on this subject, he would have found on the whole of the evidence that the respondent had not been instructed by his superiors that he should on no account attempt to replace a dislodged vee-belt. In the end, it probably does not matter very much, except perhaps on the question of contributory negligence, because there was clear evidence, that the Judge evidently accepted, that the respondent in attempting to replace the vee-belt was in any event acting in accordance with the precept and example of the appellant's leading hand. 7. The learned Judge expressly or by implication accepted the respondent's case that belts came off this machine quite often; that, because of the pressure on the men to keep the line going and the unwelcome delay that would often be caused by waiting for a fitter, the factory hands would generally try to get a belt back by their own efforts; and that they were encouraged to do this by the leading hand who was in charge of them. Having regard to the difficulty of replacement and the nature of the belt and the cramped conditions, it was foreseeable that a workman might hurt himself while attempting to replace a belt in this makeshift way, and that, in effect, is what the learned Judge found. He went on to criticize the appellant's maintenance procedures and in the end he based his finding of negligence on its failure to maintain the machine properly. Mr Milazzo, for the appellant, understandably complains that the respondent's pleading made no allegation of faulty maintenance and that this was not the basis on which the trial was fought. It appears from the transcript of evidence that the learned Judge himself introduced the topic of maintenance, at least as a potential issue. Perhaps the emphasis on maintenance was misplaced. The appellant's case in substance was that, whatever the declared policy and instruction about calling in maintenance fitters in these circumstances might have been, the fact of the matter was that the production workers were obliged, by the leading hand and by ordinary work pressures, to attempt to replace the vee-belts themselves if they could. It was really a system of work case - that the respondent was expected by his employer to put these belts onto their pulleys again without the proper training and equipment. It is clear, I think, that this was one of the issues on which the case was fought, even if the particulars of negligence alleged in the respondent's particulars of claim did not delineate it at all precisely. It is tolerably clear, particularly from his acceptance of Dolan, that the learned Judge was finding against the appellant on that issue. He was justified in doing so on the evidence. The appellant criticized certain passages in the reasons for judgement. They do not affect the substance of the decision. It does not matter very much whether belts were coming off this machine "continually", or only occasionally, or how many times a belt came off on 2 July 1987 prior to the accident. Nor was it important in the end for the Judge to decide whether the appellant could or should in some way have reduced the number of such mishaps. The critical question was what, when a belt did come off, the respondent was expected by those in charge to do about it. 8. For these reasons the finding that the appellant was in breach of its duty to the respondent should, I think, be sustained. 9. The position with respect to the appellant's plea of contributory negligence is even clearer. This was the common case of a workman doing his best to cope with a faulty work practice imposed upon him by his employer. Even if there was a general factory instruction that the replacing of slipped vee-belts was to be left to the fitters, that, as I have indicated, was practically countermanded, so far as the respondent was concerned, by the regular practice in the workplace itself that was not merely acquiesced in but positively enjoined by the appellant's leading hand. It was hardly to be supposed in the circumstances that the respondent would, in effect, work to rule and risk incurring the displeasure of his immediate superior. The learned Judge was correct in declining to hold that the plea of contributory negligence had been made out. 10. The appeal on damages can be dealt with quite briefly. There was no argument about the respondent's broken finger. The question was whether he had injured his wrist as well. It transpired that he had an old ununited fracture of the scaphoid bone. The respondent's case was that he felt pain in his wrist soon after the accident but there is no doubt that it was long after this, possibly as late as April 1989, before any of the numerous doctors who examined the respondent understood that he was complaining of pain in his wrist. If the respondent was a truthful and reliable witness, the explanation would appear to lie in the concentrated attention that was being given to the broken finger, coupled perhaps with a misunderstanding resulting from the ambiguity of the word "hand" in the respondent's native language. (The evidence as to the latter topic would have been more persuasive had it been supported by an independent language expert.) Whatever the objective probabilities of the matter, it was open to the learned Judge to believe the respondent when he said that he was getting wrist pain from the start and to find that the wrist disability from which the appellant was suffering at the time of the trial was the result of the dormant scaphoid fracture being stirred up by the work accident and so becoming symptomatic for the first time. Certainly there was not much medical evidence to support the learned Judge's causation finding but he saw the witnesses, including the respondent, and I do not think that this Court could properly say that it was not open to him to find for the respondent on this issue. 11. There is an appeal against the allowance of $8,600 for interest. It appears that the Judge failed to have regard to the workers compensation payments. The parties agree that the interest should be reduced to $2,250. 12. I would allow the appeal for the purpose only of reducing the amount of the judgement by $6,350.

JUDGE2 KING CJ In my opinion the appeal should be allowed and the amount of the judgment should be reduced by the sum of $6,350. I agree with the reasons of Cox J.

JUDGE3 MATHESON J I agree with the reasons of Cox J and with the orders proposed by him.