Crooks v Fitzgerald [2001] QSC 371

SUPREME COURT OF QUEENSLAND [2001] QSC 371 File No S9310 of 2000 BETWEEN: PAUL WILLIAM CROOKS Plaintiff AND: BARRY FITZGERALD Defendant MOYNIHAN J – REASONS FOR JUDGMENT DELIVERED ON: 1 October 2001 HEARING DATES: 17 – 18 September 2001 ORDER: The plaintiff’s action is dismissed. CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – REASONABLE FORSEEABILITY OF DAMAGE – PARTICULAR CASES – DUTY OF OCCUPIER – Where plaintiff assisting defendant to cut out rust from a trailer – where an angle grinder was in use – where angle grinder disintegrated and plaintiff’s ankle was injured – whether injury is a consequence of the use of the angel grinder rather than an incident of occupation – whether there was a breach of the duty. Chapman v Hearse & Anor (1961) 106 CLR 112 Jones v Bartlett (2000) 75 ALJR 1 COUNSEL: R D Green for the plaintiff. S R Lumb for the defendant. SOLICITORS: Boyce Garrick Solicitors for the plaintiff. Moray & Agnew Solicitors for the defendant. [1] The plaintiff was born on 21 July 1967 and is a carpenter by trade. On the morning of Sunday 24 October 1999, he went to a house, near his own, owned by the defendant’s parents and occupied by the defendant and his family. The plaintiff and the defendant were acquaintances, if not friends. -- 1 of 4 -- 2 [2] Neither the plaintiff’s nor the defendant’s recollection of the events leading up to the injury for which the plaintiff sues is completely reliable. It seems however that the plaintiff went to the defendants following a conversation with the defendant on the previous night. The defendant either asked the plaintiff for assistance in carrying out work on a trailer or accepted the plaintiff’s offer to do so. It is unclear whether the defendant’s brother-in-law was present when the plaintiff arrived at the defendant’s house or whether he came later. It is also unclear whether the plaintiff assisted in setting up the trailer so work could commence or whether work on it had commenced before the plaintiff arrived. The resolution of those issues is however not crucial to the determination of this case. [3] In any event the defendant intended using an angle grinder fitted with a cutting disc to cut out rust from the panels of the trailer box before replacing them. He had purchased the angle grinder at a garage sale and, as the plaintiff observed, it was in a dilapidated condition and was not fitted with a safety guard. Shortly before Sunday 24 October the defendant went to a hardware store, asked for and was supplied with a metal cutting disc to fit to the grinder. It was used for the first time on the morning of the 24th. [4] The defendant had little experience in operating an angle grinder. The plaintiff had more experience. He expressed concern about the dilapidated state of the grinder and the absence of a guard. He was also concerned about the position chosen for the grinder handle. The handle was fitted on the top rather than the side of the grinder. In the plaintiff’s view the latter option gives greater control to the operator of the grinder. [5] The plaintiff said it would be better to use a power saw. He had a power saw at home and he went and got it. When the plaintiff returned the defendant put aside the angle grinder and the saw was used instead. Probably the plaintiff used it first and then the defendant. I should mention that the plaintiff and the defendant were wearing T-shirts, shorts and thongs. The power saw blade became hot and it was necessary to cease using it to give it time to cool down. The plaintiff was going on a family outing and at that stage he went to speak to his wife, who had arrived and was waiting in the car at the bottom of the driveway, to tell her that he would not be much longer. He probably told the defendant he was going to do so. The plaintiff returned and stood about five metres from the trailer. The defendant was cutting on the other side so that the box of the trailer was between the plaintiff and the defendant. The defendant had resumed the use of the angle grinder rather than wait for the power saw to cool. [6] Shortly after the plaintiff returned the cutting disc on the angle grinder disintegrated without warning and a fragment or fragments of it struck and penetrated the plaintiff’s left ankle. [7] The case is pleaded on the basis of occupier’s liability. The plaintiff’s injury however was as a consequence of the use of the angle grinder rather than an incident of occupation. In my view, as the law now stands the defendant was under an obligation to take reasonable care to avoid foreseeable risk of injury to the plaintiff; the practical extent of the duty being determined by the circumstances; Jones v Bartlett (2000) 75 ALJR 1, Gleeson CJ at 11 and Gummow and Hayne JJ at 18. -- 2 of 4 -- 3 [8] There is no evidence to sustain a conclusion as to the risks inherent in the use of an angle grinder or of the disintegration of a cutting disc. The evidence is silent as to the cause of the disintegration of the disc. It does not found a conclusion that it was caused by a defect or deficiency in the angle grinder or its operation. Nor does it indicate whether it was because of some defect in the disc, much less whether that ought to have been foreseen. [9] The grinder was not fitted with a safety shield but the evidence is to the effect, as counsel for the defendant accepted, that its purpose was to protect the operator and had it been fitted it would not have protected the plaintiff. I accept the defendant’s evidence to the effect that he considered the plaintiff’s reservations about the use of the grinder to be a consequence of concern for danger to the operator as distinct from a bystander. That was not an unreasonable view of what the plaintiff said. The evidence does not found a conclusion that there was any element of risk to someone who took up the position the plaintiff was standing in when the disc disintegrated. To use the grinder without a safety guard, goggles or other precautions may well have been irresponsible but those considerations are irrelevant to what occurred to the plaintiff. [10] I am not persuaded that the plaintiff has established that he was injured as a consequence of a breach of duty of care the defendant owed him. Indeed in my view the evidence does not establish any basis for concluding the disintegration of the disc was caused by a breach of duty on the part of the defendant or anyone else. For these reasons the passages in Chapman v Hearse & Anor (1961) 106 CLR 112 at 120 relied on by the plaintiff does not assist. It does not in my view relieve a plaintiff from the need to establish a breach causing the damages for which he sues. [11] In the event that my conclusions above are wrong, the following findings are made. After the injury the plaintiff fell to the ground. There was little bleeding because the hot fragments of the disintegrated disc cauterised the wound. He was taken to his general practitioner and then to the Nambour Hospital so that the wound could be properly debrided. His leg was put in a half-cast and he spent three or four days in hospital on crutches with a partial cast. The injury was painful and while in hospital he received injections and later took pain killers. [12] When he was discharged his mobility initially was severely restricted and he needed assistance in showering, dressing and other tasks which he had previously been able to carry out himself. The cast was removed and his foot gradually became weight bearing. After about 11 months he resumed work, although with difficulties to which it will be necessary to refer later. [13] The plaintiff has a permanent five percent impairment of his left lower limb as a whole. He has desensitized skin which makes him prone to pressure sores or rubbing from wearing boots, etc. The plaintiff was and is restricted from activity which he previously enjoyed, for example walking, jogging and the like. There is likely to be some further small improvement in his disability. [14] On the basis of the conventional heads of damages, I would have assessed the plaintiff’s damages as follows:- 1. Pain, suffering and loss of amenities $30,000.00 -- 3 of 4 -- 4 Interest $380.00 2. Past economic loss: The plaintiff was off work for about 11 months as a consequence of his injury. The plaintiff’s gross income for the financial years 30 June 1996 to 30 June 2000 is as follows:- For the year ended 30 June 1996: $24,298.00 For the year ended 30 June 1997: $1,789.00 For the year ended 30 June 1998: $38,752.00 For the year ended 30 June 1999: $47,117.00 For the year ended 30 June 2000: $12,426.00 There is no satisfactory explanation for the 30 June 1997 income. In the circumstances, in my view, it is not unreasonable to work on the basis of an earning capacity of $600 per week and to discount it by the order of 15 percent to reflect the fluctuation apparent in the earning history set out above and to allow $20,000 for the loss of past earning capacity. I note that the plaintiff received $43,000 (approximately) gross under an income protection insurance policy. 3. Future economic loss: As I have said, the plaintiff has a residual disability which would affect his earning capacity because of the difficulty he has in doing off the ground work or working on uneven ground. It is however impossible to conclude with any precision as to what effect this will have on future earning capacity. Any allowance will need to reflect the vicissitudes of life and particularly the fluctuations apparent in the pre-accident earnings. Doing the best I can, I would have allowed $12,000 under this head. 4. Past and future voluntary care: There was no doubt that immediately following his injury the plaintiff was dependant on his wife to perform functions which he had previously been able to perform himself. This diminished as his condition improved. There is a schedule of the hours of past care and the rates are agreed. I would allow $7,042.65 and $669.05 interest. So far as future care is concerned, there is evidence that the plaintiff’s pain is relieved by massages given by his wife and that is likely to continue to be the position. It is, I think, not unreasonable to allow $5,000 for future care. 5. Special damages: Special damages are agreed in the amount of $2,458.15 and I award interest of $33.25. [15] The defendant pleads contributory negligence. Given the findings that I have been able to make and not able to make, this issue is somewhat problematical. The plaintiff did not appreciate that the grinder, rather than the power saw was being used until immediately prior to the disintegration of the disc. I don’t think he was at risk from any ordinary occurrence and I would not be inclined to find contributory negligence. -- 4 of 4 --