| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TURKINGTON -v- JOHN HOLLAND CONSTRUCTION & ENGINEERING PTY LTD & ANOR [2003] WADC 12 CORAM : VIOL DCJ HEARD : 20-24 MAY & 31 OCTOBER 2002 DELIVERED : 24 JANUARY 2003 FILE NO/S : CIV 3618 of 1999 BETWEEN : LEON GILBERT TURKINGTON Plaintiff
AND
JOHN HOLLAND CONSTRUCTION & ENGINEERING PTY LTD
First Defendant
AND
FRANNA CRANES PTY LTD
Second Defendant
Catchwords: Negligence - Employer's liability - Whether unsafe system of work - Employee injuring back while lifting bonnet on crane - Whether fault in design and/or manufacture of crane - Whether breach of duty of care by employer and/or manufacturer of crane - Whether breach of statutory duty - Apportionment of liability between first and second defendants
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Legislation:
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA), s 7
Occupational Health, Safety and Welfare Act 1984
Result: First defendant held 20 per cent and second defendant held 80 per cent liable for plaintiff's injuries Representation:
Counsel:
Plaintiff : Mr D M Bruns
First Defendant : Mr P E Jarman
Second Defendant : Mr P B O'Neal
Solicitors:
Plaintiff : Separovic & Associates
First Defendant : Jackson McDonald
Second Defendant : Downings Legal
Case(s) referred to in judgment(s):
Achron Pty Ltd v Serco Water (WA) Pty Ltd [2001] WASCA 141
Australian Ship Building Industries (WA) Pty Ltd v Packer & Ors (1993) 9 WAR 375
Bull v Rover Mowers (Aust) Pty Ltd (1984) 2 Qd R 489
Coles & Ors v Montague Grant Architects Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 950374; 12 June 1995
D & F Estates Ltd & Ors v Church Commissioners for England & Ors (1988) 2 All ER 992
Donahue v Stevenson [1932] AC 562
Forsayth Mining Services Pty Ltd v Jack & Anor, unreported; FCt SCt of WA; Library No 950300; 10 May 1995
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
McLean v Tedman & Anor (1984) 155 CLR 306
Pennington v Norris (1956) 96 CLR 10
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Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Todman v Victor Ltd [1982] VR 849
Case(s) also cited:
Griffiths v Arch Engineering Co (Newport) Ltd [1968] 3 All ER 217
Katsilis v Broken Hill Co Pty Ltd (1977) 18 ALR 181
Martin v Stratman (1994) A Tort Rep 81262
Perre v Apand Pty Ltd (1999) 73 ALJR 1190
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Raimondo v State of South Australia 23 ALR 513
Steffan v Ruban (1966) 84 WN (Part 1) (NSW) 264
Suosaari v Steinhardt [1989] 2 Qd R 477
Taylor v Rover Company Ltd [1966] 1 WLR 1491; 2 All ER 181
Voli v Inglewood Shire Council (1963) 110 CLR 74
Wyong Shire Council v Shirt (1980) 146 CLR 40
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1 VIOL DCJ: The plaintiff was at all material times a crane operator. He is now 60 years of age, having been born on 25 June 1942.
2 In November 1996 the plaintiff was employed by the first defendant and was operating a Franna 18 tonne crane ("the crane"). 3 In the course of his employment the plaintiff was injured and alleges that such injury entitles him to claim damages against the first and/or second defendant. 4 The pleadings disclose the following background and issues. 5 In his statement of claim the plaintiff alleges that he was employed by the first defendant and that the second defendant manufactured the crane. It is also alleged that Statewest Crane Hire, formerly the third defendant, supplied the crane to the first defendant for use by the first defendant on the HDI/DRI project ("the project") at Port Hedland. It is the position that the plaintiff has discontinued his claim against the third defendant, although it is clear that the third defendant did in fact supply the crane to the first defendant. 6 It is alleged by the plaintiff that, as employer, the first defendant owed the usual duties of care to the plaintiff and owed a statutory duty to the plaintiff. The duty was termed "to take reasonable care for the safety of the plaintiff whilst he was carrying out his employment". So far as the second defendant is concerned it was alleged (par 4A) that it was "under a duty to take reasonable care in the design and/or manufacture of the crane to ensure that the bonnet of the crane could be lifted without the bonnet of the crane being stiff to pull or push when opened". 7 The plaintiff says that on 17 September 1998 he was, in the course of his employment with the first defendant, engaged in conducting his pre-start check of the crane he was to use; such check included lifting the bonnet of the crane. 8 The accident, the plaintiff alleges in par 6 of the statement of claim, occurred as follows:
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both arms fully stretched up holding the bonnet of the crane to its maximum height; c. in doing so the Plaintiff then felt pain in his back and left buttock." 9 It is alleged that the accident was caused by the negligence and/or breach of statutory duty and/or breach of contract of employment of the first defendant or its servants or agents. The particulars of negligence are pleaded in par 7 in the following terms: "The First Defendant, its servants or agents were negligent in that it or they:- (a) required the Plaintiff to lift the bonnet of the crane when the bonnet was stiff to pull and push; (b) required the Plaintiff to lift the bonnet of the crane in circumstances where there was only one handle on the bonnet which had the consequence of requiring the Plaintiff to adopt an awkward position in so lifting the bonnet of the crane; (c) failed to ensure that there was sufficient handles on the bonnet of the crane to enable the bonnet of the crane to be lifted without the need for an awkward posture to be adopted; (d) failed to ensure that the bonnet of the crane was not stiff; (e) failed to warn the Plaintiff of the danger of lifting the bonnet of the crane in the circumstances applying at the time of the accident; (f) failed to provide adequate information, instruction, training or supervision as necessary to enable the Plaintiff to perform his work in a manner so that he was not exposed to hazard; (g) failed to provide adequate inspection and maintenance regime in respect of its plant and equipment in that the Plaintiff's note in the crane log book that the bonnet was stiff was not acted upon by the First Defendant on the scheduled service on 16 September 1998."
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10 In addition the particulars of breach of statutory duty are alleged as follows:
11 Finally it is said that there was a breach of contract of employment by the first defendant as follows:
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"(a) The First Defendant, its servants or agents, were in breach of the term of the contract of employment referred to in paragraph 4 herein in that they:- (i) invited or required the Plaintiff to perform work that was dangerous or unsafe to the Plaintiff; (ii) failed to supply the Plaintiff information, instruction, supervision, assistance and facilities to ensure that the work performed by the Plaintiff would be carried out in a safe manner; (iii) failed to warn the Plaintiff of any and all dangers associated with the work that he was invited or required to carry out; (iv) exposed the Plaintiff to hazard and/or danger in the course of his employment; (b) The Plaintiff repeats the particulars of negligence herein as particulars of the First Defendant's breach of their contract of employment with the Plaintiff." 12 As to the second defendant it is alleged in par 7A of the statement of claim that the accident was caused by the negligence and/or breach of statutory duty by the second defendant, such breach being particularised as follows: "The Second Defendant, its servants or agents were negligent in that: (a) the only means of lifting the bonnet of the crane was a 'T' handle on top of the bonnet which required the Plaintiff to lean over, rotate the lock open and lift the bonnet. The position of the handle and the limited deck space either side of the bonnet made that operation difficult and required the Plaintiff to adopt a somewhat awkward stance; (b) the bonnet was stiff to pull and push; (c) the crane did not have sufficient handles on the bonnet to enable the bonnet to be lifted without the adoption of an awkward posture;
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(d) failed to provide any warning or notice to users of the crane such as the Plaintiff of the dangers in lifting the bonnet of the crane; (e) manufactured the bonnet such that the bonnet was comprised of relatively thick sheetmetal (approximately 3mm thick) and heavy. It was unstiffened around its opening and as a consequence of lifting the 'T' handle, which in turn, caused the sides of the bonnet to flex inwards in a pincer fashion and grip the sides of the cowl making it difficult to lift the bonnet; (f) failed to design the bonnet or re-design the bonnet to eliminate the foreseeable risk of injury to the Plaintiff in lifting the bonnet." 13 The plaintiff alleged that the accident caused a "large left L5/S1 disc protrusion, causing radicular leg pain". The sequelae to this injury are set out in par 9 to par 11 of the statement of claim. The plaintiff claimed damages for the loss of enjoyment of life, compensation for medical expenses and other matters. I confirm that the extent of damages have been agreed between the parties and that this matter is a matter for determination of liability only. 14 The first defendant, after making certain admissions in its defence, pleaded thus to par 5A of the statement of claim: "The first defendant does not plead to par 5A of the amended statement of claim except to deny that it had any knowledge that the bonnet was stiff to pull and push when being lifted and to deny that the bonnet was stiff to pull and push when being lifted." 15 The cause of the accident as alleged by the plaintiff and the allegations of negligence and/or breach of statutory duty and/or contract of employment were denied by the first defendant. 16 In par 6 of its defence the first defendant makes the following allegation: "The first defendant claims that if the plaintiff did suffer an injury on or about 17 September 1998 he suffered the injury when he slipped getting out of or into the crane or alternatively
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as he was bending down in the vicinity of the bonnet of the crane but not as a result of lifting the bonnet of the crane." 17 The first defendant says further and in the alternative that the plaintiff's own negligence caused any injuries he sustained. The particulars are as follows: "The Plaintiff was negligent in that he: (a) having noticed the bonnet was stiff on 16 September 1998 failed to take any or any appropriate action to ensure that he bonnet was not stiff on 17 September 1998 or when he sustained injury; (b) failed to properly maintain the bonnet so that the bonnet did not become stiff to pull." 18 In the defence of the second defendant certain admissions are made including the fact that the second defendant manufactured the crane. As to the allegation in par 4A of the amended statement of claim setting out the duty of care owed by the second defendant to the plaintiff, the second defendant, in par 6 of its defence, denies such allegation and pleads that the second defendant owed a duty to users of its products to take reasonable care to design and manufacture its cranes in such a manner as to avoid any foreseeable risk of injury to the operator. 19 There are either admissions or denials or a non-admission of the allegations concerning the accident and the second defendant in par 15 of its defence says that if it is found that the plaintiff was injured as a result of the bonnet of the crane being stiff to pull or push when being opened, which is not admitted, then such stiffness was due to or caused by: 20 In par 16 of the defence of the second defendant it is pleaded that if the accident occurred as alleged (which is not admitted), the accident was caused or alternatively contributed to by the negligence of the plaintiff and/or the first defendant.
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21 The particulars of the plaintiff's negligence are pleaded as follows:
"(a) The plaintiff lifted the bonnet of the crane when he knew or ought to have known that the bonnet of the crane was in need of maintenance or repair; (b) The plaintiff failed to bring the condition of the bonnet of the crane to the attention of the first defendant; (c) The plaintiff failed to take any or adequate care for his own safety and wellbeing by opening the bonnet of the crane which was in need of maintenance or repair; (d) The plaintiff lifted the bonnet of the crane in an unsafe and awkward manner, knowing that it was in need of maintenance or repair, when he knew or ought to have known to use a safe lifting position." 22 The particulars of the first defendant's negligence are in the following terms: "(a) The first defendant failed to inspect the crane to ensure that there was no foreseeable risk to operators before requiring the plaintiff to operate the crane, and in particular failed to inspect the operation of the bonnet; (b) The first defendant failed to maintain or repair or cause to have maintained or repaired the bonnet of the crane before requiring the plaintiff to operate the crane; (c) The first defendant failed to establish and maintain safe systems of work including proper instruction in lifting and a system of regular maintenance of equipment; (d) The first defendant failed to establish that the crane was suitable for use before requiring the plaintiff to operate the crane; (e) The first defendant failed to establish that the crane was in a state of good repair or well maintained before requiring the plaintiff to operate the crane; (f) The first defendant failed to establish that the gas strut was present and functional and that the bonnet could be opened without risk of injury at the time it hired the
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crane, alternatively before it required the plaintiff to operate the crane." 23 In his reply to the first defendant's defence the plaintiff pleaded to par 7 of that defence as follows: "As to paragraph 7 of the first defendant's defence, the plaintiff denies that he was negligent as alleged. Having noticed the bonnet was stiff on 16 September, the plaintiff made a note in the crane's log book so that the problem could be addressed at the scheduled service that evening." 24 Further it was pleaded that it was not part of the plaintiff's duties to maintain the bonnet (par 3) and that the first defendant's system of maintenance was defective in that the problem was not rectified at the scheduled service. 25 As to the second defendant's defence the plaintiff, having joined issue with the second defendant on some issues, pleaded to par 16 of the second defendant's defence, saying that the plaintiff: 26 There is a statement of claim by the first defendant against the second defendant amended on 20 May 2002. In such statement of claim the first defendant seeks an indemnity for any damages awarded for the plaintiff in its action against the first defendant. It is alleged that the second defendant was the manufacturer and supplier of the crane to the first defendant and, as such, owed a duty to all potential users of the crane to take reasonable steps to avoid the risk of foreseeable injury to persons using or driving the crane. It is alleged in par 6 of the first defendant's statement of claim against the second defendant that the plaintiff's injury was caused by the negligence and/or breach of statutory duty of the second defendant.
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27 The particulars of such breach are pleaded as follows:
"(a) The only means of lifting the bonnet of the crane was a 'T' handle on the top of the bonnet which required the plaintiff to lean over, rotate the lock open and lift the bonnet. The position of the handle and limited deck space either side of the bonnet made that operation difficult and required the plaintiff to adopt a somewhat awkward stance. (b) The bonnet was stiff to pull and push. (c) The crane did not have sufficient handles on the bonnet to enable the bonnet to be lifted without the adoption of an awkward posture. (d) It failed to provide any warning or notice to users of the crane such as the plaintiff of the dangers in lifting the bonnet of the crane. (e) It manufactured the bonnet such that the bonnet was comprised of relatively thick sheetmetal (approximately 3mm thick) and quite heavy. It was unstiffened around its opening and as a consequence of lifting the 'T' handle, the upper surface of the bonnet bowed upwards in the region of the handle, which in turn, caused the sides of the cowl making it difficult to lift the bonnet. (f) It failed to design the bonnet or re-design the bonnet to eliminate the foreseeable risk of injury to the plaintiff in lifting the bonnet." 28 It can be seen therefore that there are a number of issues concerning the manufacturer and operation of the bonnet on the crane. This will require some consideration of the evidence. 29 Before considering the evidence it is convenient to describe the crane and, in particular, the bonnet. The crane is shown in the photographs which are annexed to Exhibit C1, the report from Martin E Sims & Associates Pty Ltd, Chartered Consulting Engineers. I will not detail the photographs themselves, however, the crane is shown as a large truck type vehicle which is driven in one direction and which has the engine at the rear of the crane. That engine has an engine cover which pivots at the front of the engine, the whole cover lifting up and exposing the engine
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itself. The cover is approached by climbing to the platform behind the driver's cabin and one finds oneself on a platform which is made up of non-slip steel. The cover is a large box and, at the time of the accident, it was opened by turning a stainless steel handle and lifting the bonnet upwards and backwards. There was some dispute as to the weight of the bonnet, however, it is approximately 93 kilograms. There was an issue as to whether there was sufficient assistance for the lifting of the bonnet by the use of a gas strut or struts. The general system for the opening of the bonnet is for the operator to stand on the platform and turn the handle and lift the bonnet. After the accident a second handle was added to the bonnet. There was an issue as to the reason for this addition and whether it altered the proper method of lifting the bonnet. 30 The plaintiff is an experienced crane driver with a number of "tickets" enabling him to operate cranes up to 100 tonnes. He has been a crane driver for about 20 years. Before operating a crane each day he was required to do a pre-start check which involved checking the tyres, the fuel, water, ropes and steering. In particular, the hydraulics were to be checked to ensure there were no leaks. He did those checks on the morning of 17 September 1998. In order to check the oil it was necessary for him to lift the bonnet to get to the engine. He described how he lifted the bonnet. Shortly put, he said that he got up onto the platform, bent down, turned the latch, lifted the bonnet up and was seeking to "throw it back". He described how he got on top of the bonnet and squatted down on his haunches and used two hands after unlocking the bonnet to turn the handle and then lift it. He said that he adopted a posture similar to that of the witness Kenneth Sully as shown in Exhibit B (a photograph). He said the handle itself was not hard to turn but, when he went to lift it, the bonnet was "tight" the whole way up and required more power in the lifting. He then felt a pain in his back but managed to get it all the way up. He then moved around to the side, bent down and checked the oil using the dipstick, but the pain now went down his right leg - he was unable to stand up. In a crouched position he eased himself off the crane slowly and ultimately was assisted to first aid. The plaintiff said that he had noticed the tightness in the bonnet the day before and had made an entry in the log book. This book required operators to note that the oil was "okay" and the hydraulics or any other maintenance was required to be looked at. The log book, he said, was kept in the door of the crane and was normally read by the mechanical supervisor - the first defendant having its own mechanical workshop for servicing the crane. Having made the entry in the log book, being told that the crane was going to be serviced that day and therefore on the day of the accident (the next day),
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he believed that the service had in fact been carried out. He thought this was the case because there were dirty marks on the steering wheel and other different places around the machine, and also because it was not parked in the usual position. He told Ken Sully (the union safety officer) about the accident and also one Eddie Carvalho who was employed by Statewide Hire, the supplier of the crane. 31 The plaintiff said that not all cranes had bonnets as stiff as this one to lift. He denied having anything to do with the maintenance of the bonnet and said that the lifting position used by him in the photograph was the only one that he knew of. He denied the allegation in par 6 of the first defendant's defence ie. that he slipped getting out of or into the crane itself, or when he was bending down near the bonnet to check the oil and not to lift it. 32 The plaintiff was cross-examined by counsel for the first defendant. 33 The plaintiff was questioned as to a worker's compensation claim form which had been submitted by him, the form having been signed by him on 19 September 1998. The accident was described as having occurred on the "upper deck of crane" and as to the question "what were you doing at the time of the occurrence", the answer was "lifting bonnet to check oil". The action itself was described as "bending kneeling down to check oil on dipstick". He denied that he had hurt his back bending down to check the oil once the bonnet had been opened. He could not recall discussing the claim form with anyone, making a claim or filling it out because of the medication he had been prescribed for the pain. The printing was not in his hand. He had no explanation for the description as to what action caused the injury. He denied advising a John Wright, the supervisor on the job, that he suffered the injury when he slipped getting off or onto the crane. He thought the crane was serviced approximately every 250 hours and thought that the fitter who told him that the crane was scheduled for a service the night before the injury was known as "Shaun". He confirmed that not only did he note the fact that the bonnet was stiff in the log book, he would also have advised this man "Shaun". The plaintiff was then referred to his answers to the first defendant's interrogatories filed on 17 May 2002 and sworn on that date. Interrogatory 5 asked him this question, "Subsequent to noticing that the bonnet was stiff and prior to the accident did the plaintiff make any attempt, other than by making a note in the crane's log book, to inform the first defendant of the alleged defect in the bonnet? If so, describe those attempts". The answer was "No". He had in fact sworn the interrogatory three days before the first day of hearing. He was unable to give any
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explanation as to the answer. He was shown an entry from the service log book and confirmed that if the crane was showing 2,835 hours on 31 August 1998 and it would not have been due for a further 250 hour service until 3,085 hours. It was suggested to him therefore and on the evidence that was going to be given by Mr Carvalho the 250 hour service had been done only 130 hours before the accident and that therefore another one was not due the night before, namely the night that he said that he had the discussion with the other employee. He did not think that his memory had been affected by the medication and passage of time. The log book became Exhibit 2. He agreed that he had not sought to look at the log book before the hearing. It was the case that his statement of claim had been amended several days before the hearing to include the pleading that he had made a note in the log book the day before the accident and agreed that he had not sought to look at the log book before such amendment was made. He was not able to explain why such allegation had been made so late in the day. He did not, he said, tell the fitter some five days after he had had his injury that the bonnet was stiff and that they had to fix it. He thought that he had not seen the page from the log book put to him because there were not figures in it like the one shown to him, although it did resemble the one he did remember. He thought that he made a comment about the bonnet being stiff in the document it would be down the bottom of the document. He put the checklist back into the door and was unable to say whether the crane had been moved by some other person other than one of the maintenance employees. He agreed that safety was a high priority on the site. 34 The plaintiff was then cross-examined by counsel for the second defendant. The plaintiff was referred to Exhibit 2 - drawings of a Franna crane. He said that he opened the crane completely from the front and, in order to shut the bonnet, he had to stand on the side and grip the sides of the sheet metal and pull it down - there was no handle on the side to be used to pull it down. He said there was no training to teach him how to handle and lift the bonnet when he first started, although there was about lifting generally. He was told to keep an eye out for any machinery or difficult problems which might be a risk to safety on site. He agreed that it required considerable force to lift the bonnet on the day of the accident. He agreed that Mr Sully helped him take some pictures of the crane but could not remember when or where it was. He did not seek help from Mr Sully or speak to the union and ask for assistance in commencing his claim. 35 In re-examination he thought that he told the fitter about the stiffness of the bonnet before making a note in the log book.
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36 On the face of it the plaintiff appeared as a rather simple person who certainly did not appreciate the implications or niceties of the legal system or the system of pleadings operating in this Court. There is no doubt that he was severely affected by the accident and this may or may not have affected his reliability as a witness. The cross-examination of the plaintiff raised, save prima facie, some questions as to his reliability, however the suggested inconsistencies concerning the worker's compensation form and other matters were not of sufficient importance to assist either the defendants' attack upon the plaintiff's reliability and/or veracity. In fact the plaintiff struck me as a person doing his best to give an honest account of the history of the matter.
37 Mr Kenneth William Sully is now a trainer/assessor of crane operators and has his own company which offers training and assessing in the areas of dogging, rigging, crane driving etc. He was the site safety officer at the relevant time. He saw the plaintiff waiting for medical attention and walked over to see him. He was asked what he did when he walked over there and gave this answer: "What did you do when you walked over there?---He told me that he had sustained some sort of injury whilst trying to lift the bonnet and check the oil and go through the relevant procedures of what the operators are supposed to do, and I went over there and attempted that myself and found that there was a degree of difficulty in lifting the bonnet at that time. I consider myself reasonably strong and I actually found it difficult then, so I thought obviously there is a problem in that area and had a look at it and basically had a look at the logbook in the crane as well and a few other things. When you looked at the logbook was there anything relevant in there?---I looked in there and noticed that Gil had entered some information. I'm not sure how long ago or how many days prior to that but that's one of my jobs as well, to basically go round and keep an eye on these things that are done on the job and the operators keep up the maintenance and upkeep on the crane as well. Yeah, he made that entry in there - - - What did the entry say, as closely as you can remember?---What I just basically, that there was a degree of difficulty in actually lifting the bonnet of the crane. I can't remember a lot of the things word for word because it was a fairly large job and there was 1600 people on that job and I
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obviously had about 800 members that I represented and I would have somebody in there every half an hour with a different problem. Whether it be domestic, industrial, safety, I'd have to try and act as - sort of counsel them on it and then mediate with whoever we had to mediate with. I wonder if you can look at the photograph which is MFI B. Can you tell us about that photograph?---Yes, that photograph was taken on an 18-tonner pretty similar to the one that John Holland had on hire. I can remember that particular day going over the machine and checking - trying to sort of basically have a look at it again and recall what I went through when I looked a the 18-tonner of John Holland's. And I think - is that you shown in that photograph?---Yes. That's me, yes. If I could perhaps tender that as an exhibit now, your Honour? Yes. Thank you. Now, going back to the original crane you inspected on 17 September 1998, at what point did you find it difficult to lift? Was it before you turned the handle, after you turned the handle, when you were starting to lift it?---Basically, you know, after I turned the handle and just trying to lift it from that, you know, the very beginning it was very difficult. Did you tell anyone else about the problem on the crane?---I think I can recall telling the owner of the crane about the situation and - because I have had something to do with health and safety at work as well, I recommended to him that, you know, something should be done about it whether it be another handle or a strut, an extra strut, to help the person lift the bonnet whilst - and I've also spoke to Gilbert about it as well." 38 It is significant that in his evidence he corroborated the plaintiff's evidence in almost every important respect. He confirmed speaking to the owner of the crane and recommending that something be done about the difficulty in lifting the cover by the use of "another handle or strut, an extra strut". This advice appears to be consistent with his position as safety officer.
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39 Mr Sully was cross-examined by counsel for the first defendant. He agreed that he assisted the plaintiff in making a claim for compensation and that he was present when the plaintiff signed the form. The writing, he said, was his. As to the accident itself he was a little vague as to the exact circumstances in which the form was filled in. I note that in his evidence as to the explanation given by the plaintiff for the accident and Sully's understanding of it, he used the expression on several occasions "pieced it together" - in other words, "worked out" what may have occurred.
40 In the cross-examination by counsel for the first defendant a number of matters were put to him concerning the signing of the form, his discussions with the plaintiff and the circumstances of it, his inspection of the crane and his own attempts to lift the bonnet. His evidence and the manner in which he gave it gave me no cause for concern and he appeared to be making an honest attempt to recall the circumstances at the time. He agreed that he had not spoken to the construction superintendent John Wright, about the problems he saw with the bonnet because he rarely saw him. He was questioned about the service hours in the book (Exhibit 2) and agreed that if there had been a service between the regular 250 hours services, he would have expected it to be recorded in the book. He said that he did mention to Mr Carvalho the difficulty with opening the bonnet. The reason why he did not report the bonnet to the company and demand that something be done about it was because it was in the log book and that dealing with the problem should have followed such entry. As to entries in the log book he said that if it was a serious problem it would be fixed immediately, if other than serious something should be done about it within a week or so ie. it would not be necessarily attended to immediately. To note that of course that this was his understanding of the position as safety officer, although it could have been open for someone such as the plaintiff to have come to a different conclusion ie. that it would have been fixed before the next shift, particularly if there had been the discussion related by the plaintiff in his evidence. 41 Mr Sully was then cross-examined by counsel for the second defendant. He was shown a John Holland accident incident investigation report. The entry therein was, "The crane driver Gil Turkington was checking the oil level on the engine. While kneeling and ready to pull the dipstick out, his left leg became tight and he pulled a muscle". He was asked whether that is what the plaintiff told him and he said "that it was something along those lines that I can recall there". Mr Sully was an experienced operator with considerable on-site experience. His job as safety officer required him to be alert to safety problems.
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42 Notwithstanding several matters in his cross-examination already referred to, Mr Sully's answers to questions and his demeanour gave me reason to conclude that he was attempting to recall, as accurately and honestly as possible, the relevant events. In a number of respects his evidence corroborates that of the plaintiff's.
43 Mr Bodan Generowicz is a civil engineer but works as a "forensic engineer". A lengthy report was prepared by him and dated 27 November 2000; after legal argument the report was excised to a degree and is as appears in Exhibit A. 44 He saw the crane in Dili, East Timor in November 2000. He confirmed that there were friction marks on the crane as could be seen on photograph 7 in his report and, in particular, the top left hand side. He also noted that there were marks visible on the corner on the right hand side and on the sides and around the corner. The wear marks he said were also visible on the lip of the box shown in Exhibit A which was part of the cover involved. The marks he said were also shown on Exhibit 10, Exhibit 11 and Exhibit 12 in Exhibit A. He did not notice any damage caused by misalignment on the bonnet and when the bonnet cover was closed, it matched the seating perfectly. It was not distorted in any way. There was no evidence of any looseness or distortion other than the evidence of interference between the two parts mentioned above. He thought the rubbing marks were caused by friction. He noted that when he inspected the crane it was quite impossible to open the bonnet itself with the lockable lifting handle alone. The force needed to lift the bonnet (measured by use of a spring scale) was in excess of 23 KGF. He said the cover could only be opened with the aid of an additional handle fitted to the left of the cover by the crane's owner and as visible in photograph 4. 45 When cross-examined by counsel for the second defendant he confirmed that Mr Eddie Carvalho was with him when he inspected the crane. He said that when he inspected the bonnet there were some small brackets on the underside and periphery of the bonnet, he has since seen design drawings of the crane and learnt that there was in fact a 20 millimetre by 5 millimetre piece of steel reinforcing within a couple of hundred millimetres at the back of the bonnet. He did not report having observed any reinforcing during his inspection and did not think it was relevant to his inspection. He did not notice and report anything unusual with the functioning of the hinges of the bonnet. He did not measure the marks on the bonnet or the mid-bonnet. He was insistent that there were wear marks on the bonnet where he had described in examination-in-chief.
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46 I had no reason to doubt the observations of Mr Generowicz - he had the advantage of inspecting the crane and his evidence as to the difficulty in lifting the bonnet assists the plaintiff's case.
47 The final witness on behalf of the plaintiff was Mr Martin Eric Sims, a consulting mechanical engineer. He prepared two reports but the second was a compilation of both and became Exhibit C2. As the first part of the report (Question and Answer (1)) sets out Mr Sims' opinion as to how the plaintiff injured himself - these are largely matters upon which it is my view which is important and relevant. As to Question (2), it was the opinion of Mr Sims that at the time of the accident there was a "significant risk of suffering a back injury whilst attempting to open the bonnet as part of a daily set-up check". This arose, he said, because of the somewhat awkward location of the handle, the tendency of the bonnet sides to grip the cowl when the bonnet top flexed and as a consequence of the weight of the bonnet. He commented on the addition of a second handle to the left hand side of the bonnet after the accident and the fact that it provided, in his view, two benefits; firstly, that the operator could grasp two locations at the same time and does not therefore need to lean over quite so far and, secondly, that by pulling on the additional handle it tended to open the bonnet sideways and thereby relieved the "pincer" action induced by the flexing of the bonnet top. It was his view that the risk of injury by reason of the design of the bonnet in particular and the vehicle generally could be achieved most probably by trial and error but that five strategies could be implemented which would significantly reduce the risk. These were set out in par E on page 3 of the report: "(e) It is my opinion that the risk of injury does arise by reason of the design of the vehicle and that the vehicle could be easily redesigned to reduce or eliminate the risk. The most suitable design would probably be achieved by trial and error but the following strategies could be simply implemented and would significantly reduce the risk. (1) The fitting of adequate gas struts arranged to assist in opening the bonnet. NB: A single gas strut has been fitted adjacent to the radiator but this does not provide a sufficient mechanical advantage to effectively assist in the opening of the bonnet.
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(2) Springs could be utilised to cause the bonnet to pop open when the 'T' handle is unlocked. This arrangement is common virtually every passenger car and such springs would have prevented the 'pincer' effect described earlier. (3) The additional handle which was fitted at some time after the accident certainly assists in the opening of the bonnet and could have easily been fitted by the original manufacturer. (4) A torsion spring could have been used to assist lifting the bonnet through the first 45 degrees and this would have been easy to implement. (5) The bonnet could have possibly been redesigned to open in two halves along its centre line in the fashion of an old style truck bonnet." 48 Mr Sims thought that the selection of the best solution was a matter of practical experimentation and did not suggest that any one of the methods was ideal. He had no doubt however that it was a simple matter from an engineering point of view to provide lift assistance for the bonnet and it was further his view that this should have been done. As to start-up checks he did not consider any particular change was necessary as the checking of engine oil etc., was quite routine. As to the weight of the engine cover generally, it was Mr Sims' view that it was clearly more robust than needed to be structurally but this could have been offset by the sort of assistance mentioned by him already. There were no warnings as to the proper method of lifting the bonnet or checking the oil although it is his view that this instruction was generally not warranted as the persons using the machinery would have had ample exposure to operations involving those checks and knowledge of how to perform them. It was his concluding view that the design of the bonnet and the absence of adequate facilities to open it contributed to likelihood of injury occurring and that because a single gas strut was fitted by the original manufacturer in its present form, the bonnet was unreasonably difficult to lift and presented a significant risk of injury. 49 In his evidence-in-chief Mr Sims gave his view as to why he said the "T" handle was awkward and described the position of the feet necessary to lift the bonnet and the necessity to lean over in order to operate the handle and apply a lifting force to it. He spoke of two positions being
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awkward and difficult and then spoke of his observations as to the tendency of the bonnet sides to grip the cowl as they were opened; this involved the deforming of the upper surface of the bonnet as the cowl was pulled open. He gave more details as to the five possible methods of improving the safety of the bonnet itself. He confirmed his view that an opening force of 18 kilograms or 19 kilograms was unacceptable but did not go as far as suggesting that it was ergonomically unsound. He stated that it is possible for cranes of this nature and their parts to have tolerances which involve slightly different measurements to each part. He did some calculations on the phenomenon of the plate deflecting when one is pulling on it and these became the subject of Exhibit E. He disagreed with the suggestion by Dr Chew (an expert called by the second defendant) that there may have been some misalignment to the engine cover due to worn hinges. 50 In cross-examination by counsel for the first defendant Mr Sims agreed that with the extra handle on the crane, there was room on the lower shelf to place one's foot or feet to lift the bonnet. As to the fitted handle on the side of the cover it was his view that so long as there was no danger of falling or slipping as one lifted it the handle effectively broke the pincer effect in that it bowed the bonnet up and, as a result, the sides tended to be rotated inwards. This would make the bonnet easier to open. He was pointed to the photographs referred to in Mr Generowicz's report and in particular photograph 7. The marks, he said, were caused by the inner surface of the bonnet contacting the cowl at that point with sufficient pressure to wear the paint away. 51 Mr Sims was then cross-examined by counsel for the second defendant. Mr Sims confirmed that he saw the crane on two occasions, the second occasion to confirm the existence of the gas strut. He said that when he prepared his report he did not have the specifications on the gas strut which was used on the crane. His conclusions as to design, he said, would apply generally to all cranes, not just the cranes the subject of this matter. At the time he did not have the information necessary to calculate the force necessary to lift the bonnet without the assistance of a gas strut. When questioned as to why he did not observe the gas strut on the first occasion he said that at the time he lifted the bonnet on his first inspection the weight of it suggested that he was lifting the bonnet unassisted. He was asked whether a gas strut was a sensible means of reducing the effort needed to lift the bonnet and said that it was one of a number of possible means and it was a question for any manufacturer to pick a device that achieved the objective within the cost constraints that he wanted to apply. He was asked about lifting the bonnet with the assistance of the gas strut
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and confirmed that the maximum force necessary to lift it up and the time that was required to be used depended on the speed with which the bonnet was being opened. Importantly, Mr Sims gave the opinion that lifting a bonnet was absolutely different from lifting a load off the floor. I accept and agree with his opinion in this regard, particularly in the light of the bases upon which he gave it on page 232 of the transcript. As to the recommendation (1) in his report as to gas struts, it was his view that notwithstanding that he did not know the specifications of the gas strut or test it, it was not adequate ie. not effective to do its job. He agreed that a force of 15 kilograms would be a reasonable lifting force but probably upper limit of value. He confirmed that when he examined the crane and opened the bonnet he applied a force which he would have expected a normal person to apply in the manner that he would have expected them to apply. When he went to open the bonnet it did not open - "it jammed". He agreed that machines, like the crane, were required to be built in a robust if not rugged way to do the work and in the environment they are required to work in. He confirmed that when he inspected the crane he did not have a straight edge with him to check the level of the bonnet in its closed position. The bonnet did not flex the moment the handle was opened but did so when force was applied to it. Exhibit E was a computer model by which Mr Sims demonstrated that there were some 8 millimetres of flexing in the bonnet that he examined. This was contrary to Dr Chew's assertion that a deflexion of a few millimetres had not been established. Mr Sims said that the reinforcing down the back edge of the bonnet would have no effect on the deformation on the front edge. He agreed that had he included the reinforcing on the front edge of the bonnet into his figures it would have altered the analysis and reduced the deflexion slightly. Also he did not take into account further reinforcing ie. there were three pieces of metal reinforcing which he had not taken into account. He agreed that the reinforcing at the front had the effect of "springing" the bonnet when it was unlocked and accepted that the bonnet could then be safely lifted without interference from the latch. 52 He was shown some photographs of people purportedly measuring the bonnet movement while lifting and it was his view that the methods shown were inaccurate and crude. He confirmed his view that the design of the bonnet was such that it created circumstances where a "nipping" event could occur. He agreed that the wear marks he saw were primarily caused by vibration, but that did not mean the bonnet was of such a nature not to nip when under an applied load. 53 As to the five suggestions that he made in his report he confirmed that he had no doubt that each of the suggestions was possible. He agreed
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that if a defect was found out after a considerable time in the use of a machine, it would be reasonable, once an engineer became aware of that, to investigate whether it is likely to lead to a more widespread problem and consider re-designing the machine on that basis. He agreed with a number of the suggestions as to how one would go about testing the machine to see what was causing the defect. 54 In re-examination Mr Sims set out the reasons why he though the method of measuring the curvature in Exhibit 2D9 were crude and inadequate - his criticism appeared to be correct. At page 270 to page 271 he explained why it was that, in his view, the design of the bonnet had the effect of causing the catching which was complained of by the plaintiff. 55 Mr Sims struck me as a very practical and observant expert witness. He was not dogmatic but firm in a number of important respects, particularly that concerning the difficulty in lifting the bonnet and the possibility and cause of the "pincer" effect. His evidence was of considerable assistance to the plaintiff's case. 56 The first defendant's case commenced with the evidence of Mr John William King who was employed by the first defendant and is involved in purchasing and materials controlling at the Kwinana Works; that job also involves the looking after of archives in Western Australia. He searched all the relevant archives and obtained some documents relating to the crane and the incident but was unable to obtain any maintenance records relating to it. He later ascertained that at one point they had been in the filing cabinet in the maintenance workshop and looked through the filing cabinet himself. He found nothing. He had a recollection that there was a file missing of some kind relating to daily checks. 57 He made the archives available for a solicitor, Ms Kristy Weston, to look through at Kwinana. 58 He was unable, in cross examination, to say why the archiving of records according to the first defendant's procedures had not been complied with. In other words if the policy had been adhered to, the documents he was searching for, including the daily maintenance sheet, would have been accessible when he conducted his search. Mr King's evidence did nothing to dispel my concern as to the missing records and the reason for their absence in the relevant file. His evidence, as I find later, supports the plaintiff's case.
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59 Mr Paul Anthony Burton is a business improvement manager for the first defendant; he is also the regional safety manager for the first defendant. He confirmed the inability of the first defendant to find the file relating to this matter. He had some role in retrieving the recording of the injury in the first aid book. The page he saw was not the complete document. His evidence did not assist the first defendant's case.
60 Mr Nigel Paul Cass was the site maintenance supervisor in September 1998 and was employed by the first defendant. The crane, he said, was approximately 12 months old at the date of the accident and in excellent condition. The crane was serviced every 250 hours and each 1,000 hours there were a number of additional checks and repairs or adjustments. There was a proforma maintenance sheet, which became Exhibit 4. He said that the checklists would have been filed in his office in a filing cabinet, or a file, and then these records would normally be transferred to the Kwinana Depot. He referred to the crane's maintenance log which was a bound volume supplied by the manufacturer. Having looked at the log and identified it he said that on the basis of the entries in the normal maintenance system the crane was not due for a service on 16 September 1998. He recalled "vaguely" that when the crane came in for its 1,000 hours service, they installed a handle on the bonnet to assist with the raising and lowering on it. He said that, as a rule, if there was a note in a job sheet as to a safety issue, that would be attended to immediately. There was no complaint about the ergonomic safety of the Franna crane as far as he could recall. He also confirmed that if the mechanic observed that some part was broken or failing, or required oil or WD40, he would attend to this without reference to the manual. 61 He agreed in cross-examination by counsel for the plaintiff that the log book was deficient in the recording of the required services, in the sense that the service was not recorded and also the possibility that services not recorded had been skipped. He found no record to back up the requirement to install a handle on the Franna crane. He agreed also in cross-examination that the records out of which he obtained the log book entry were not up to date. 62 Mr Cass' evidence was of little assistance to the first defendant's case and confirmed the absence of proper records being available as to the crane and its servicing. 63 Mr John William Wright was one of the superintendents at the site at the relevant time and knew the plaintiff. With Nigel Cassidy, he supervised the work at the workshop. He thought the information on the
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daily checks was put on the computer by Mr Cass (the information that Mr Cass was unable to provide in relation to this crane). He did not recall seeing the plaintiff lift the bonnet of the crane. He was unaware of any problem in relation to the bonnet of the crane. He was unable to recall any conversation with the plaintiff about his back injury although he thought the plaintiff had something wrong with his knee, which had been caused by hitting his knee on the step of the crane. There was a report to the safety department but he could not recall when that was. The site, he thought, was the best safety site he had ever worked on and it received a "five star" rating. In cross-examination Mr Wright said that a copy of the daily sheets would be given to Mr Cass, who would put something on the computer and one copy would be put back in the crane. The other copy used to be filed. Mr Wright was apparently honest, but his limited recall of the events made his evidence of little value to the first defendant. 64 Mr Robert George Bond was called by the first defendant - he is a rigger and was employed as a rigger and safety representative in September 1998 on the site. He knew the plaintiff as a crane driver. He recalled the plaintiff coming in from a shift start and complaining of a pain in his lower back and to his side. He recalled that he was advised by the plaintiff that he was doing his pre-start check on the crane but did not have a very good recollection of the conversation. He recalled a discussion with a insurance assessor as part of the preparation of a note as to what he had been told by the plaintiff, the insurance assessor apparently told him that the injury to the plaintiff could have happened either way; ie. getting in and out of the crane or doing his pre-start check. He read a document which became Exhibit 2D5 in which he had written "strained muscle in left upper leg". He confirmed that he had signed a statutory declaration in which he had noted that he recalled asking the plaintiff what had happened and he replied that he could not recall but it might have been whilst getting out of his crane. 65 Mr Bond's evidence suffered from a lack of firmness and the contents of the statutory declaration made by him as to what the plaintiff may have said, I consider, are of little weight. 66 Mr Edmond Charles Spencer Carvalho was called by the first defendant. He is the owner of the company which purchased the crane from Franna Cranes and leased the crane to the first defendant. At the time he was employed by the first defendant as a re-fueller, but took the opportunity of purchasing the crane and then hiring it immediately to the first defendant. He saw the crane every day. He took the weekly sheets out of the crane and took them down to the maintenance workshop which
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was under the supervision of Nigel Cass. He was responsible for re-fuelling the crane plus approximately another 500 machines on site. He identified Exhibit 2, a log book extract relating to the crane. For September 1998, approximately 18 months after he opened the bonnet on a daily basis. He used the handle on the top of the bonnet together with the second handle fitted by the first defendant because the second handle "facilitates to open the bonnet basically". If he did not use the second handle, the bonnet he said, "was really a bit hard to lift". The reason why he found the bonnet hard to lift when one only used the top handle was because the bonnet "basically jams on the inner frame". He said "the handle at the side helped tremendously, you can actually do the job in no time by using the handle on the side". Other than the new (second) handle being fitted by the first defendant on the side of the crane there have been no other repairs or modifications since the plaintiff's injury. He recalled being told by Mr Cass that the handle was being placed on the bonnet after someone had got hurt and to "facilitate the bonnet being open". He confirmed that on the log book there were apparently some 250 hours service entries missing. He demonstrated the way in which he lifted the bonnet after the second handle had been installed on the bonnet and it is clear that the method he uses allows both feet to be on the main floor and does not involve a necessity to squat or stand on the bonnet itself - there was still an element of bending over but he was clear as to the way in which he was lifting. Mr Carvalho's evidence supported the plaintiff's claim in a number of important respects - his evidence was of very little value to the first defendant. 67 Exhibit 8 was a proof of evidence of a solicitor, Ms Kristy Weston, as to the attempts she made to find the file relating to this matter. 68 Mr Danny John Black was called by the second defendant. He is currently the design engineer for Franna Cranes and is a mechanical engineer. He commenced employment with Franna Cranes in November 1989. The crane (an AT18) came into production in 1996. He has been involved in the design of a number of other cranes for Franna. He explained that the crane itself was exemplified by the fact that they are a "pick and carry" crane meaning that the operator drives to the load, lifts it and then the load is carried whilst it is still suspended as the crane moves to another position. He explained the reasons behind, and the way in which the bonnet was designed. It was made with 3 millimetres, rather than 1 millimetre, steel for robustness and the necessity to allow people to stand on the bonnet to have access to components inside the boom. The flat bar was placed inside the bonnet to stiffen the bonnet to prevent it deflecting if and when one walked on it. The bonnet is manufactured with
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a slight springing effect in it so that when the handle is pushed down it clicks shut and when it is open, the bonnet "springs back up" to a particular level. In other words the bonnet and its top face has an inbuilt spring in it. He said that when the Franna cranes were first designed, there were no gas struts in the bonnet assembly, but these were included in February 1993, in a 4WD12 crane after complaints that the bonnet was heavy to lift. He gave evidence as to the calculations and methods used to determine the type of and size of the strut to be used for each crane. The effectiveness of the strut was tested by several people in the organisation lifting the bonnet. Ultimately the AT18 (ie. this crane) was designed with a strut of the type already tested, although the strut was positioned in a different place. Functional tests carried out before delivery in accordance with a quality assurance system the company has adopted and there was a Franna Cranes pre-delivery checklist (Exhibit 2D16) which related to the crane. In 2000, a number of modifications were made to the design of the bonnet. There appeared to be a considerable amount of work and thought having gone into the design of the crane, the bonnet and modifications required from time to time. There was also clearly a considerable and detailed system of checks when the cranes had been completed. 69 After the plaintiff's accident and having received a complaint through their "legal people", the bonnet was re-designed and a new and second handle was placed on the driver's side of the crane. He told me that even though the handle was ultimately used for opening the bonnet it was not his intention that it be used for the initial lift and that he still found the original handle in the middle the best method. Since the addition of the gas struts there have been no complaints about the bonnets being too heavy to lift. 70 He was involved in measuring, to assess whether or not there was flexing of the bonnet which caused a pinching effect. He did so after reading Dr Sims' report. He checked another AT18 crane and could find no deflection of the sort mentioned by Dr Sims. It appeared that the deflection he measured was in the area of 3 millimetres. It was his view that in order to lift the bonnet for the first 10 degrees, a force of 14.4 kilograms was required. 71 In cross-examination by counsel for the plaintiff, Mr Black said that the second handle included on the bonnet did not make it safer to lift because he did not use the side handle to lift it, he used the side handle to control the bonnet through the last 20 odd degrees and to close the bonnet from a fully exposed position. This evidence was given with the background that the new handle had been added after obtaining
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information about the plaintiff's accident and after considering Dr Sims' report, and considering the lifting effort required and the ergonomics involved in it. It was suggested that the handle was ultimately installed for a different reason to that about which Dr Sims spoke. I was a little concerned about the answers to these questions - Mr Black appeared to be attempting to justify the manufacturer's inclusion of the second handle, but also, at the same time, trying to avoid any relationship between that and the possibility that the absence of a handle caused the accident itself. He agreed that the operator's manual (supplied with the crane) contained no information as to the lifting of the bonnet. He agreed that, if when lifting the bonnet the top deformed in some way there would be pressure on the sides of the bonnet and would pull the sides in. He felt that what Mr Sims observed was the deflection from the release of the locking mechanism. He agreed that there was a possibility that over the life of the crane the force required to lift the bonnet would become greater and also that if there was a pincer effect with the sides rubbing together, that would require an additional force required to lift the bonnet. He agreed that if there was a pincer effect as explained by Mr Sims a side handle was going to make the bonnet easier to lift. 72 In re-examination he was of the view that if there was friction on the side of the bonnet near the second handle and that was pulled out and up that would produce the friction there, but would increase the friction on the other side. 73 Although Mr Black was at pains to suggest that the second handle was included (and used) for reasons other than assisting the lifting of the bonnet and making this easier (particularly in the event of any catching) he appeared to strengthen the plaintiff's case in this regard. 74 The second defendant called Mr Lou Parolin who was a boilermaker/welder by trade and ultimately became the owner of Franna Cranes. When he purchased the business only one crane was manufactured - a number have been built since that time. The crane was designed to be "operator friendly" ie. a one-man operation with ease of use and safety. The only complaint received about bonnets being too heavy to lift was in 1993 - this involved a 12 tonne crane and within the space of a very few weeks, they introduced a gas strut on all future bonnets - they had received no other complaints since that time. There was an extensive testing with trials conducted after the prototype gas strut was designed and installed. The crane was designed and manufactured with involvement of the Australian Standards Association. He confirmed in cross-examination that there were no documents kept in relation to the
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field test conducted. Mr Parolin's evidence was of limited value to the second defendant. 75 Mr Rodney Joseph Butcher gave evidence for the second defendant. He began as a boilermaker; his company now provides metal fabrication services to Franna Cranes, including making the bonnets and other components. He has personally built every bonnet ordered by Franna Cranes. He told me how they fabricated the bonnet, the mid-bonnet and cowl for the crane. The drawings used have tolerances which permit some degree of variation in the size of the parts used. He gave evidence as to the system used to avoid two parts having tolerances such that they would not fit. There is a 1 millimetre tolerance between parts and if a joint that did not fit properly they would discard the parts until a later date when it would be used or repaired or discarded and not used. In cross-examination Mr Butcher did not think that there would be unevenness in the thickness of steel received by him, which could not be seen with the naked eye. He agreed that the bonnet sections are required to be bent and if the bend was half a degree wrong, this would result in the bonnet being several millimetres out at the bottom; he said that 90 per cent of the time the gaps were within a millimetre tolerance. He agreed that there were several possibilities for the parts to be bent or misshaped after manufacture, including the painting and loading and unloading process. 76 Within Mr Butcher's evidence, there is room for a finding that bonnets may become distorted to such an extent that catching may occur in lifting and normal use. 77 Dr Stephen Chew, a consulting engineer and ergonomist, gave expert evidence for the second defendant. He prepared two reports dated 28 September 2000 (Exhibit 2D23A) and 20 February 2000 (Exhibit 2D23B). 78 He inspected a crane similar, he said, to the subject crane but not the one involved in this case. He found that the force required to lift the engine cover up from its fully closed position to fully opened position was largest at the start of the lift at 18 kilograms and would then decrease in magnitude and would be zero when the engine cover had been open by 32 degrees above the horizontal axis. The bonnet he inspected did not catch on the crane's body work and because he did not know what caused the engine cover lifted by the plaintiff to catch on the crane's body work, he was not in a position to comment on any action the first defendant could have taken to alleviate this tendency. He believed, from an
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ergonomic perspective, that the design of the crane allowed a person to adopt a safe lifting position when raising the engine cover of the crane. He believed that the design of the engine cover should have sufficient rigidity to prevent its two sides from flexing inward under normal operation of the crane. He believed that if either or both of the sides of the engine cover were to catch on the crane's body work it would have sustained deformation damage and when this occurred the engine cover would have been in need of prompt repair and maintenance. When he lifted the bonnet he used the handle on the top of the bonnet, with one foot on the top of the piece of metal to the front of the bonnet and his left foot on the crane's platform. 79 His second report (Exhibit 2D23B) was prepared after he examined another crane, he having been advised that that crane was identical to the Franna Crane the subject of this action. The lifting force to lift the crane was 17 kilograms. He found some rubbing contact between some areas of the bonnet and the crane itself and was of the view that due to vibration of the crane's engine, it is inevitable that rubbing contact will occur between the engine cover and the front cover. The 17 kilogram lifting force would have included the necessity to overcome this friction. He considered the design of the engine cover and included this in his report: "The design of the engine cover The engine cover on the crane I inspected at Myaree Crane Hire appeared to be in good condition. There was no evidence of damage or deformation on it. There were areas of rubbing contact between the two corners of the engine cover and the cover that was in front of it. However when I lifted the engine cover, it did not catch on the crane, and its corners did not catch on the front steel cover. The lifting force was largest at the start of the lift. It was test measured to be 17 kg - force (167 Newton). These observations were made when I lifted the engine whilst standing with one foot on the front cover. The design of the engine cover includes two metal braces welded on its interior face, with the front brace being 23.5 cm from its front edge. I believe: The installation of the two metal braces provides rigidity to the engine cover to prevent it from grabbing against the front steel cover when the engine cover is being lifted.
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The observed good condition of the engine cover, in combination with the presence of the two metal braces, are responsible for my observation that the engine cover did not catch on the crane's body work or the front steel cover, when the engine cover was being lifted and opened. The installation of the two metal braces, and the 3 mm thickness of the engine cover metal, are consistent with measures having been taken during the design stage to prevent the cover from distorting and catching on the crane's body work, or on the front steel cover, as the engine cover is being lifted and opened. If the engine cover were to catch on the crane's body work or on the front steel cover, either or a combination of the following could have occurred: The engine cover has sustained permanent deformation when it was struck by another object some time earlier. The engine cover's hinges are worn to the extent that the cover becomes misaligned. If either of the above has occurred, the engine cover is in need of prompt repair and maintenance." 80 Dr Chew was of the view that the bonnet, as he saw it, could have been lifted safely by the use of the handle provided, provided the lifter was a healthy male worker and was properly instructed and trained in safe manual handling techniques. Having read Mr Generowicz's report, Dr Chew felt the larger force reported by him to lift the cover could be due to the gas strut requiring need of service or replacement, or the engine cover being distorted or being misaligned or a combination of the three. He was of the view that the engine cover deformation hypothesis suggested by Mr Sims was not supported by his own engineering analysis. He was of the view that both methods of lifting described by Mr Sims were unsound from an ergonomic perspective because the person's spine was flexed forward substantially. In cross-examination by counsel for the plaintiff, Dr Chew agreed that the posture he recommended would be one to which most people would not come instinctively, but they would have to involve some instruction. He agreed that lifting a 23 kilogram weight may cause difficulty, particularly if it was not applied sparingly during the day and it was not lifted with the back upright, "pretty straight", with the hand very close to the front of the body. He agreed that there were tolerances involved in the gaps between two moving parts of a bonnet and
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the crane, and agreed that there may be cranes which behaved in different ways in this regard caused by the differences in tolerance, but also caused possibly by the bonnet of the cowl sustaining damage. Dr Chew agreed that the cranes he inspected may well have had some differences in tolerances to that involved in this present case. He thought that the rubbing on photograph 7 of Mr Generowicz's report showed more signs of rubbing than that seen by him on the crane he inspected. The position appeared to be similar. He was asked by counsel for the first defendant as to the methods he would suggest to design a bonnet to alleviate catching on the cowling underneath as the bonnet was being lifted. He mentioned perhaps a larger handle so one could use two hands to lift it but would not include two gas struts. 81 Dr Chew was a sensible and well-intentioned witness, however, as found by me in due course, I preferred the opinion of Mr Sims to that of Dr Chew in several important respects. 82 Mr Daryl John Stoddard is the proprietor of Myaree Crane Hire and confirmed that his firm has owned a Franna AT18 for 5-1/2 years. His crane has done 6,338 hours work. He opens the bonnet every day to do a service and every day to do the pre-start checks. A few times he has had problems lifting the bonnet of the crane but he has looked at the problem and put a bit of grease there. The problem appears to arise where the bonnet "sits down". He had never experienced a problem with his own back lifting a bonnet of a Franna crane - he in fact has a bad back himself. Mr Stoddard's evidence was of marginal assistance to the second defendant's case. 83 Arising from this examination of the issues and evidence, and the comments made already, a number of important factual issues can be determined: 1. Was the plaintiff injured as alleged by him? The plaintiff's evidence as to the accident was clear and firm. He was injured, he said, when he attempted to lift the bonnet to check the engine oil level. He turned the handle on top of the bonnet and, when he went to lift it, it effectively jammed - when he applied more power to overcome this, he felt an immediate pain in his back and left buttock. There is little doubt that around the time of the incident, the plaintiff suffered a serious back injury - such an injury is consistent with an accident of the type alleged by the plaintiff.
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The plaintiff complained immediately to Mr Sully as to the difficulty in lifting the bonnet and Mr Sully confirmed its difficulty himself. Such difficulty in lifting the bonnet was confirmed by Mr Generowicz and the reasons for difficulty were supported by Mr Sims. Mr Carvalho also confirmed the problem found by the plaintiff. 2. Whether the position adopted by the plaintiff could be described as "awkward" as alleged by the plaintiff. The photos of the bonnet and its surrounds show that, with only one handle to use (as was the case at the time of the accident), it was difficult for the plaintiff to lift the bonnet without being in a partly bent or crouched position - in addition, there was a relatively limited space for a proper footing to be available. These matters were confirmed by the plaintiff and other witnesses and lead me to conclude that the position required to be adopted by the plaintiff to lift the bonnet could be described as "awkward" in all the circumstances. 3. Whether the plaintiff made the entry in the log book the day before the accident. I have considered the plaintiff's evidence and cross-examination of him on this point. I am unable to find a sufficient basis and the questions and answers to detract from the plaintiff's apparent honesty in this matter. His evidence was, to a degree, corroborated by Mr Sully. Of considerable importance in this regard is the absence of the original document and/or the maintenance records as to the crane. No witness was able to give a satisfactory explanation for this absence. Further, it seems that the information in the documents as to the crane was deficient. |