Drew v Makita (Australia) Pty Ltd [2010] QCA 171

SUPREME COURT OF QUEENSLAND CITATION: Drew v Makita (Australia) Pty Ltd [2010] QCA 171 PARTIES: PAUL DREW (plaintiff/respondent) v MAKITA (AUSTRALIA) PTY LTD ACN 001 117 335 (defendant/appellant) FILE NO/S: Appeal No 92 of 2010 DC No 4664 of 2004 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 2 July 2010 DELIVERED AT: Brisbane HEARING DATE: 17 June 2010 JUDGES: Chief Justice and White JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDERS: 1. That the appeal be dismissed, with costs to be assessed on the indemnity basis; 2. That paragraph 1 of the order made in the District Court on 23 December 2009 be varied so that it reads as follows: “In relation to the costs ordered by Judge O’Sullivan on 11 December 2009: (a) the costs of the first trial held on 19, 20, 26 November and 5 December 2007, be assessed on the standard basis; and (b) the costs of the retrial held on 12, 13, 14 October and 10 and 11 December 2009, be assessed on the indemnity basis.” CATCHWORDS: APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where the respondent suffered a serious injury to his left hand while using a circular saw manufactured by the appellant – where the primary judge found that the falling of the substantially cut material led to the exposure of the blade which was unprotected by the guard and the consequent injury to the respondent – where appellant submits that the primary judge -- 1 of 8 -- 2 was not justified in concluding that the sheet of material fell from the workbench – where appellant relied on suggested inconsistencies in evidence – whether the primary judge was justified in concluding that the sheet of material fell from the workbench APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where the primary judge found that the guard covering the blade did not retract to the closed position when the blade became separated from the cut and that this was a design defect – where expert evidence at trial identified potential for the jamming of the guard as a design defect in the saw – where appellant submitted that the primary judge was not justified in concluding that the guard for the blade jammed in the open position – where appellant further submitted that there was no explanation provided by the primary judge as to why it was found that the guard had jammed – whether the primary judge was justified in concluding that the guard for the blade had jammed in the open position TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where appellant submits that the primary judge should have made a finding of contributory negligence against the respondent – where the primary judge found the defect in the saw to be the cause of injury – whether primary judge’s finding should be disturbed on appeal PROCEDURE – COSTS – APPEALS AS TO COSTS – GENERALLY – where the trial in this proceeding followed a successful appeal against a judgment entered in favour of the respondent at an earlier trial – where the Court of Appeal ordered a fresh trial and that the costs of the first trial abide the result of the fresh trial – where the primary judge ordered that the appellant pay the respondent’s costs of both trials and adjourned for further consideration of whether costs should be assessed on the standard or indemnity basis – where another judge later ordered that the costs of both the first and second trial be assessed on the indemnity basis – where the respondent made an offer under Rule 360 Uniform Civil Procedure Rules 1999 (Qld) after the appeal against the first judgment was instituted but prior to the appeal being heard – where the respondent’s offer to settle was in an amount less than the amount of the judgment ultimately secured – where respondent had also made a mandatory final offer before first trial – whether costs should be assessed on the standard or indemnity basis Personal Injuries Proceedings Act 2002 (Qld), s 40 Trade Practices Act 1974 (Cth), s 75AC Uniform Civil Procedure Rules 1999 (Qld), r 360 -- 2 of 8 -- 3 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, cited COUNSEL: R I Myers for the appellant J Lee with M McLennan for the respondent SOLICITORS: Clayton Utz for the appellant Wellners Lawyers for the respondent [1] CHIEF JUSTICE: The appellant appeals against a judgment entered in favour of the respondent in the District Court for damages in the sum of $194,454.86 together with interest and costs. The amount of the damages was agreed. The issue tried was the appellant’s alleged liability in negligence and under s 75AC of the Trade Practices Act 1974 (Cth). [2] The respondent suffered a serious injury to his left hand on 19 December 2001. He was using a circular saw manufactured by the appellant to cut a piece of “Weathertex”, material used for cladding houses. Assisted by a Mr Varyo, the respondent had assembled a workbench by placing hardwood planks over two separated workman’s trestles. He wished to cut the strip of Weathertex down the middle lengthwise. He therefore placed the material on the hardwood planks so that a little more than half protruded over the side. Then he used the saw to cut the material. Mr Varyo brought up the rear to support the length progressively being cut. [3] The learned trial Judge found that when the respondent had cut to a point 100 to 200 millimetres from the end, “the board in one piece fell off and onto the stools” (a distance of 50 millimetres). At that time, separated from the cut, the blade of the saw was exposed and remained so. Reacting to the falling material, the respondent went to seize it, but instead inadvertently brought his left hand into contact with the moving blade, cutting it. [4] Her Honour found that the guard covering the blade, lifted to facilitate the cutting operation, did not retract into the closed position when the blade became separated from the cut, and that that exposed the respondent to the risk of injury in the event of contact. The reason was that the cover “jammed because of a design defect”. Two mechanical engineers, Mr McDougall and Dr Grigg, identified that potential for jamming as a design defect in the saw. [5] Counsel for the appellant, in his outline, has submitted, as the critical issues, whether the learned Judge was justified in concluding that the sheet of material fell from the workbench, and that the guard for the blade then jammed in the open position. Falling of material [6] On the Judge’s findings, the falling of the substantially cut material led to the exposure of the blade, unprotected by a closed guard, and the consequent injury to the respondent. The respondent gave evidence that when he had cut to between 300 and 400 millimetres from the end (the board was 3.6 metres long), “the board started to fall and (he) took a grab for the board”, which he missed, cutting his hand on the blade. While Her Honour pointed to the limited extent of that evidence, it was there, and she was entitled to act on it as she did. -- 3 of 8 -- 4 [7] It is significant that so far as one may gauge from the record, the respondent was measured in his evidence, apparently not overstating things, and readily conceding that he could not recall certain aspects of the matter. [8] The appellant’s contention is that the only material which fell, in all probability, was the strip which had been cut, leaving the saw in the cut. The appellant relies on suggested inconsistency between the respondent’s evidence that the entire board fell, and the surgeon Dr Coleman’s evidence of what the respondent told him about the circumstances of the incident: “′I was at home. I was helping a neighbour to cut a piece of weathertex cladding. I was using it with a 7 and quarter inch Makita hand-held saw. The board dropped when it was near the end and the board was 3.6 metres long’. He – another person was helping him hold the other end and the board was put on a set of stools and a plank. He said: ‘I was using my left hand to steady the saw when the board started to fall’ as he was approaching the end of the cut. He said that: ‘I went to grab it but grabbed the blade of the saw.’ He told me that the saw blade was still in the cut. He also told me that, ‘I noted the guard hadn’t fully covered the blade. ” [9] The appellant particularly relies on Dr Coleman’s evidence that the respondent told him that “the saw blade was still in the cut”, and that he noted that “the guard hadn’t fully covered the blade”. The respondent denied saying those things (p 1-76, l 18 transcript), and Her Honour is to be taken to have accepted his denial (notwithstanding Dr Coleman’s evidence at p 2-77 l 48 and p 2-78), as she was entitled to do. [10] As emerges from those passages of transcript, the respondent said that the blade was still in the cut “before the board dropped”. The Judge was entitled to draw from that that he denied having indicated that the blade remained in the cut thereafter. The respondent’s evidence at p 1-76 that “I wouldn’t have said that…because I don’t know what happened”, may reasonably be regarded as referable only to the immediately preceding statement: “The guard had not fully covered the blade?” Having regard to Dr Coleman’s evidence as to the manner in which he compiled his note, the Judge was entitled to regard it as at least unclear whether, if the respondent told the doctor that the blade was still in the cut, he was speaking of a time after the board had dropped. [11] Counsel for the appellant sought to diminish the value of the respondent’s evidence of the falling of the entire board by reference to this exchange in cross-examination: “You don’t know why it fell, do you? – I don’t know why it fell, no. ‘And you agree with me that a supported piece of Weathertex can’t fall? – Yes. I’ve got to agree with that. ‘You have no explanation for the whole of the board falling on this occasion? – I’ve got no explanation for the board falling at all, no. ‘And, in truth, it is only the off-cut that can fall because it is unsupported? – Well, no, I don’t think so. ‘All right. And, it’s likely isn’t it, that the off-cut will fall when –if, in fact, the falling piece of the off-cut is unsupported and you’re within 100 to 200 mills of the end? --- -- 4 of 8 -- 5 ‘MR MYERS: But at that stage the off-cut is unsupported in the front, isn’t it? – No. It’s still connected to the other piece of the board, the piece that we haven’t protruded through the cut. ‘Yes? – There’s 400 millimetres of board holding that up. ‘All right. I’m suggesting to you that once you get beyond the 400 mills and you approach to within 100 to 200 millimetres of the end of the cut there is a real likelihood, a real probability, that the off-cut will fall? – No, it won’t. That means that the material will have to break. ‘Well, perhaps that’s the word I’m looking for, is it? There is a real likelihood that when you get to within 100 to 200 mill of the cut, of the end of the cut, the material will break off? – No. Not at 3 to 400 mill from the end.’” [12] While the respondent could offer no explanation as to why the board might have fallen, he significantly did not disavow his evidence that it did. The evidence that the system of work adopted by the respondent was regarded as safe did not necessitate Her Honour’s rejection of the respondent’s evidence that the board fell. [13] The learned Judge was entitled to accept the respondent’s evidence that the board fell as he claimed. [14] Counsel for the appellant criticized the Judge’s acceptance of the respondent’s primary evidence because Her Honour rejected his evidence on other matters, which Counsel characterized as untruths. An example is the distance from the end of the board the respondent had reached before the fall. Whereas in the respondent’s oral evidence he said he had reached 300-400 millimetres from the end, the Judge found he had reached to a point 100-200 millimetres from the end. She is to be taken to have regarded him as mistaken in that oral evidence. It is trite to observe that the Judge was entitled to accept parts of the evidence, while not accepting other parts. In any case, in her reasons she said in effect that the difference in distances was immaterial (para 27). [15] Counsel referred to various other pieces of cross-examination (eg p 1-60) for a contention that the respondent’s evidence should have been rejected as untruthful. The Judge was not however constrained by such evidence to reject the respondent as a witness of truth. Jamming of the guard [16] There was evidence that a sufficient application of force to the guard could cause it to be jammed in the upper housing of the saw. The respondent did not give evidence of having noticed that the guard was jammed. Having found that the entire board fell, so that the blade left the cut and remained exposed, leading to the respondent’s injury, Her Honour has inferred that the guard had remained in the lifted position, and not had automatically retracted into the closed position, as should have occurred. [17] Her Honour’s finding was made in the context of evidence from Dr Grigg that there was potential for the guard to remain jammed in the open or lifted position, and his evidence explaining how that might occur. Both mechanical engineers described such a prospect as a defect in design. -- 5 of 8 -- 6 [18] Her Honour was in those circumstances entitled reasonably to draw the inference that the guard must have jammed. [19] Counsel for the appellant submitted Her Honour did not explain why she found the guard jammed. It was sufficient that she referred to the expert evidence of the design defect, with the potential for the guard to jam, coupled with her findings: “[The respondent’s] reflex action of attempting to catch the board placed his hand in contact with the blade of the saw. This could not have happened if the guard had retracted so as to cover the blade once the saw was separated from the cut.” [20] That the guard did not retract, as it should have, founded the reasonable inference it had jammed, as it was prone to do because of its design fault. Adequacy of Her Honour’s reasons for judgment [21] The appellant’s counsel substantially criticized Her Honour’s reasons for judgment as inadequate. It was contended, for example, that she did not explain her preference for the respondent’s evidence in the context of Dr Coleman’s notes. [22] Her Honour referred in her reasons to the respective bodies of evidence. She plainly considered the respondent’s evidence the more reliable, and was presumably influenced by the evidence previously referred to, at p 1-76 l 18, p 2-77 l 48 and p 2-78. [23] Counsel criticized other aspects of the Judge’s reasons. My overall impression is that while they could have been expressed more comprehensively, it is sufficiently evident why Her Honour made the findings, and reached the conclusions, which she did. The reasons, overall, adequately explain Her Honour’s findings and judgment. Jones v Dunkel [24] The respondent was criticized at the trial for not calling three possible witnesses, his assistant Mr Varyo, and two bystanders at the scene, Stephen Mackie and one Graham. The primary Judge drew the inference under Jones v Dunkel (1959) 101 CLR 298 that neither Mr Mackie nor the person Graham could give evidence to advance the respondent’s interest in the matter. The Judge declined to draw the inference in relation to Mr Varyo, because of prior consultation between Mr Varyo and the appellant (the appellant had a signed statement from him which the appellant used at the first trial), in circumstances where the appellant did not itself call Mr Varyo at the second trial. Her Honour’s approach to this matter was unexceptionable. Contributory negligence [25] Counsel for the appellant submitted that there should in any event have been a finding of contributory negligence against the respondent. The appellant’s primary position before the learned Judge was that the respondent was “solely responsible for his injuries”. In his written submissions at the trial, Counsel for the appellant set out the bases for that, concluding with the contention that “the plaintiff’s negligence (or contributory negligence) is overwhelming”. In her reasons for judgment, the learned Judge dealt with each of those points, concluding that the respondent had proceeded safely. -- 6 of 8 -- 7 [26] Her Honour has found the defect in the saw was the cause of the injury. There is no evidence, on the Judge’s findings, that any want of reasonable care on the part of the respondent contributed to the injury. [27] Her Honour was entitled to find the appellant solely responsible. Conclusion [28] Although the notice of appeal listed some 20 grounds of appeal in relation to the issue of liability, the appeal was argued on the basis that they might be distilled into the two issues particularly addressed in this judgment. [29] I would order that the appeal be dismissed. Costs [30] The trial in this proceeding followed a successful appeal against a judgment entered in favour of the respondent at an earlier trial. The Court of Appeal then ordered that there be a fresh trial, and ordered that the costs of the first trial abide the result of the fresh trial. The present respondent was ordered to pay the present appellant’s costs of that appeal (which fell to be assessed on the standard basis). [31] The primary Judge ordered that the appellant pay the respondent’s costs of the trial before her, and of the first trial. That was consistent with the order of the Court of Appeal. Her Honour adjourned for further consideration whether costs should be assessed on the standard or indemnity basis. A fortnight later another Judge ordered that they be assessed on the indemnity basis. [32] That Judge was influenced by the circumstance that after the appeal against the first judgment was instituted, but before it was heard, the present respondent made an offer to settle the proceeding in an amount less than the amount of the judgment ultimately secured. The respondent made that offer under Rule 360 of the Uniform Civil Procedure Rules 1999 (Qld). On the face of it, that justified an award of indemnity costs for the second trial, although the costs of the first trial should have been left for assessment on the standard basis. [33] Counsel for the appellant relies on s 40 of the Personal Injuries Proceedings Act 2002 (Qld), which provides, in relation to a proceeding such as this, that “the court must, if relevant, have regard to the mandatory final offers in making a decision about costs”. The respondent’s mandatory final offer, communicated before the first trial, was in the amount of $244,000, which is more than the amount of the judgment secured, and the appellant’s was nil. [34] Section 40 obliged the court to have regard to the mandatory final offers “if relevant”: by the time of the second trial, the effect of those mandatory final offers had been spent, their relevance had ceased. They would have been opened and examined, for example, by the first trial Judge (s 40(7), (8)). The only relevant offer by the conclusion of the second trial was that made under Rule 360. [35] The costs of the first trial should be assessed on the standard basis because the offer under Rule 360 was made subsequently. The costs of the second trial should be assessed on the indemnity basis because the amount recovered exceeded the amount specified in the Rule 360 offer. Consistently, the costs of the instant appeal, in -- 7 of 8 -- 8 which, on my judgment, the respondent would succeed, should be assessed on the indemnity basis. Orders [36] These orders should be made: 1. that the appeal be dismissed, with costs to be assessed on the indemnity basis; 2. that paragraph 1 of the order made in the District Court on 23 December 2009 be varied so that it reads as follows: “In relation to the costs ordered by Judge O’Sullivan on 11 December 2009: (a) the costs of the first trial held on 19, 20, 26 November and 5 December 2007, be assessed on the standard basis; and (b) the costs of the retrial held on 12, 13, 14 October and 10 and 11 December 2009, be assessed on the indemnity basis.” [37] WHITE JA: I have read the reasons for judgment of the Chief Justice and agree with the orders he proposes and with those reasons. [38] ATKINSON J: I agree with the orders proposed by the Chief Justice and with his Honour’s reasons. -- 8 of 8 --