Crimp v Isis Central Sugar Mill Co Ltd [1994] QSC 56

IN THE SUPREME COURT OF QUEENSLAND Writ No. 141 of 1991 CAIRNS DISTRICT REGISTRY 11TH MARCH 1994 BETWEEN: JOHN CRIMP Plaintiff AND: ISIS CENTRAL SUGAR MILL CO.LTD. Defendant BEFORE THE HONOURABLE MR. JUSTICE CULLINANE DELIVERED THE ELEVENTH DAY OF MARCH 1994 The Plaintiff sustained injuries on the afternoon of 21st August 1990 when struck by a moving cane bin at the Defendant's sugar mill at Childers. The Plaintiff was engaged as a fireman. His task was to assist the locomotive driver (one Bromley) by giving directions to him by means of a two-way radio. At all relevant times the Plaintiff and the locomotive driver were not able to be seen by each other. At the time of the accident they were engaged in placing a number of bins on the lines leading to the mill. These bins were taken off the rake of bins attached to the locomotive. The area where the Plaintiff was injured was in constant use for this purpose during the crushing season and employees were required to move on foot through this area to perform their duties. The Plaintiff had been employed in the position of fireman during the previous crushing season. The 1 9 9 0 season had -- 1 of 16 -- 2 commenced only a few days before the accident. The Plaintiff had been performing maintenance work on the Defendant's tramway system during the slack season. Whilst there is a dispute as to what the plaintiff was doing at the time of the accident it was common ground that after 3 bins had been taken off the rake of bins and left on the main line the rake had been pulled by the locomotive towards the cutting (the layout of the relevant area appears in exhibit 1) and past the points at the junction of the main line and the third feeder line. The Plaintiff changed the points, it being intended to move the rake along the third feeder line when the Plaintiff gave the locomotive driver the go-ahead, by means of the two-way radio, to do so. The Plaintiff says that before he called the driver to move the rakes along the feeder line he saw that a pin was out of place on the last of the bins and he walked towards the bin and kicked the pin in. He then moved away from the bins and called the locomotive driver who commenced to move the bins forward along the third feeder line. The Plaintiff says that he then commenced to walk parallel to the feeder line and to the right of it in accordance with his line of travel. It was his intention to walk along with the bins moving initially behind him and to his side and as they passed him he would be in a position to disconnect the bins from the locomotive when they were in position on the feeder line. He says that he believes he was out of the line of the bins moving slowly behind him, although on;L_Y__ by a little _way. ---· ------ -- 2 of 16 -- 3 As he walked along he says there were many pieces of harvested cane strewn around the area. He described these as billets. In addition there were pieces of rock which he describes as rough ballast lying on the ground. He says the position was similar in this regard to what is shown in Exhibit 3. Another witness, one McAuley, whose evidence I will refer to in more detail shortly, says the position at the relevant time was in fact a good deal worse with there being much more cane and debris than as shown in Exhibit 3D. The Plaintiff says that as he walked along he slipped or fell. He did not see what it was that caused him to fall, something which would not be surprising in view of what then happened. However I am asked to infer that he slipped on a piece or pieces of cane and/or a rock or rocks. He found himself with his backside on the ground and with his legs on the line with the bins approaching. He tried to get out of the way but his right foot was struck by the approaching cane bin. He crawled away from the area across the main line where he made contact with the locomotive driver by means of the two-way radio. He says the accident occurred on the mill side of the junction of the mainline and the feeder line. (He has marked on one of the photographic exhibits where he says it occurred). McAuley who had been employed at the mill in 1989 and 1990 says that when the crushing season commenced in 1990 the yard towards the mill from the overhead bridge shown in exhibit 1 and some of the photographs and also towards the cutting from the overhead bridge was strewn with pieces of cane from the previous season and also with many ... loose pieces of rough -- 3 of 16 -- 4 ballast. The cane is cut by the harvesters into pieces before being placed in the bins. According to McAuley the cleaning of the area to the mill side of the overhead bridge in the vicinity of the lines of this accumulated debris was undertaken just before the commencement of the 1990 season and a system of cleaning this area each shift was put in place. McAuley says that the area from the overhead bridge to the cutting, (which was where the Plaintiff was when he sustained his injuries) remained uncleared at the time of accident. It was, according to McAuley, cleared some days later. As I have said, McAuley says it was much worse in terms of the materials strewn around the area than is shown in the photographic exhibit to which I have referred. He says that in that photograph there are some signs of some clearing having been done. His description of the area was as follows: "Well, what happened was, like I said, I was employed approximately three days before the start of the 1990 crush. The state of the tracks were extremely messy and the mill ordered a clean up of the cane billets and rocks, ballast, what have you, around the place between the concrete overpass bridge and to the mill itself, which was to be continued on,. maintained by the feedline attendant, which was myself, to a clean standard. But because I'd started the couple of days before the start of the crush it gave me an opportunity to have a look underneath the overhead bridge and back into the cutting itself and none of that was ever cleaned up. It still had quite a large amount of cane billets and mess and what have you around in between the lines and it remained so until such time as I would say a week or so after the accident it was cleaned up." and a little later - "There was a clean up after that, was there? -- That's exactly right. Would you have a look at this photograph, please, which is 3D? You can see that there is some debris shown on that particular photograph. I just ask you do you recognise that . first of all ·as· ·a view-1:-aken generally -- 4 of 16 -- 5 from the bridge area toward the cutting to which you have been making reference?-- Yes, that's correct. We know that that particular photograph was not taken at the time of the accident, but what are you able to say, if anything, about the state of the debris shown in that photograph as compared to its condition at the time Mr. Crimp was injured?-- I can categorically say this is nothing at all like what it was like. It was just completely covered to the stage you couldn't the billets went right to the top almost of the rails. It was quite bad. All these areas in between here, I know for a fact that when they did actually get around to being cleaned, they would bring in a backhoe and scrape all along the lines here and you can see how flat it is and that's as a result of the blade actually going along and cleaning it up, so this is nothing at all what it was like at the time of the accident. How frequently then - I have just got to get this clear - I should ask you this first: did people walk about in the area between the bridge and the mill, did they, from time to time? There was some pedestrian traffic by mill workers from time to time?-- Between the bridge and the mill? Associated with the movement of the bins?-- Of course, sure. It was basically the entrance to the mill. After the locomotives pushed the bins onto the feed lines, there was then some winching attachment of a mechanical kind which brought the bins further and closer toward the mill. Was that right?-- Yes. Was there, to your recollection, ever any regular cleaning of the area between the bridge and the points that were shown on Exhibit 3D, the photograph I showed you, say, for example, once a week, once a month or - that you can recollect?-- I could - I know for a fact it was cleaned three times a day on the other side and, on this side over here, I imagine it would have been done less than once a month, I would say." The Defendant's case was that the Plaintiff was injured when he attempted to kick the pin on the cane bin out whilst the rake of bins was moving. The evidence in this regard came from the locomotive driver Bromley who says that he had a conversation with the Plaintiff whilst the Plaintiff was lying injured beside the main line in which the the Plaintiff told him that he had been injured whilst-trying-to ·kick the -pin on -- 5 of 16 -- 6 the last bin in and had got his foot caught. In cross- examination he acknowledged that the Plaintiff did not say anything about the bins moving at that time. However Bromley says that he asked the Plaintiff why he had not stopped the train and says that the Plaintiff said that he did not want to do so. Bromley also said that he had a conversation on the following day at the hospital at which the Plaintiff expressed embarrassment at what had happened and concern that he would be in some trouble. Bromley described this conversation in terms which amounted to a repetition of the earlier description by the Plaintiff of what Bromley says the Plaintiff had told him he was doing. There was evidence from the then Cane Inspector, one Finlay. His evidence was that he arrived at the scene at about the same time as Bromley did and that he saw the Plaintiff lying beside the main line but well on the cutting side of the junction between the main line and the third feeder line. He said that the cane train was wholly on the cutting side of the junction also. According to Finlay he took some measurements at the time which he recorded in a statement some days later. Bromley on the other hand says that he had commenced to move the bins along the third feeder line when the Plaintiff called to him on the two-way radio to stop. He thinks that the Plaintiff was lying on the mill side of the junction when he went to his assistance. In this regard his evidence tends to support that of the Plaintiff and is contrary to that of Finlay. -- 6 of 16 -- 7 Some reliance is placed upon Exhibit 16 a statement signed by the Plaintiff for the purposes of Workers' Compensation. This was completed by the Plaintiff's wife and signed by him whilst the Plaintiff was in hospital. She says she obtained the description of what occurred from the newspapers. In any case I do not think that the statement is inconsistent with the Plaintiff's evidence before me although it does not contain all of the details of the account which he gave in evidence. It does not, in my view, support the Defendant's contention. I thought that the Plaintiff was an intelligent and honest witness and I am satisfied that his evidence before me accurately relates what occurred. I would be reluctant to act upon anything said by the Plaintiff in the immediate aftermath of the incident. It is likely that he may have mentioned kicking the pin in. It may also be that Bromley misunderstood what the Plaintiff was saying about this. Further the Plaintiff may have expressed some embarrassment and concern at the hospital on the following day but I think that Bromley has misunderstood this or has inferred too much from it. The Plaintiff, I am satisfied, was injured whilst walking beside the third feeder line in the circumstances described by him. I prefer his evidence as to where the accident occurred (which I think is supported by that of Bromley on this point) to that of Finlay. Bromley says he did not see Finlay taking any measurements at the time he was with Finlay and the Plaintiff beside the main line. If Finlay was relying upon a recollection at the time he prepared his statement then that---·- -- 7 of 16 -- 8 recollection in my view was faulty. The evidence satisfies me that the Plaintiff was in the position he said he was when he was struck. The Plaintiff's evidence as to where he was in relation to the line of the bins as he walked in the general direction of the mill fluctuated somewhat. He initially said he was a metre clear of the line but acknowledged that the overhang of the bins on each side of the line was about a metre. He appeared to concede that it was possible that he was within the line of the bins as he walked along although he thought it unlikely but later stated that he was walking outside of the line. He said at one time that he may have been moving somewhat closer to the line to be in a position to uncouple the bins when they reached the point at which they were to be uncoupled from the locomotive. This may explain how he came to fall in the manner he did. Although the manner in which he gave his evidence on this subject raised some doubts in my mind as to how reliable it was in the result I think it likely that he was outside of the line of the bins moving behind him by a short way. I also accept the evidence of McAuley and regard it as more reliable in terms of the extent of the material lying around than was the evidence of Plaintiff who, I think in this regard, may have understated matters. I prefer it to the evidence of Finlay and Bromley who each suggested there was very little debris lying around. McAuley was involved in the cleaning of debris from some areas and is, I am satisfied, giving evidence based . upon a. rel-iable -recollection· --of the -·-- -· - -- 8 of 16 -- 9 position. I infer from his description and from the photographic evidence that it was necessary for the Plaintiff to walk over the billets and pieces of rock strewn around. The Plaintiff's case was essentially based upon two propositions. Firstly, it was said that the Defendant should have taken steps to ensure that the area where the Plaintiff was required to walk in carrying out his duties was reasonably safe and the presence of extensive debris posed an unreasonable risk of injury to a person required to work in proximity to rolling stock. Secondly, it was said the Plaintiff should have instructed employees that when working around moving cane bins and locomotives they should take up a position sufficiently clear of the line of the bins and locomotive to avoid the risk of injury in the event that they slipped or fell and this is particularly the case where the nature of the surface, because of the material strewn around, gave rise to such an obvious risk. The claims are of course related. Finlay acknowledged that billets of cane posed a risk to persons and says steps were taken to warn workers to look out for them. He acknowledged that it would have been possible to instruct the workmen to remain stationary clear of moving cane bins and not to move towards them until the bins were brought to a halt. However he says that this would make operations slower and more expensive. There is no doubt that the operations in which the Plaintiff was engaged were potentially hazardous. Furthermore, because -- 9 of 16 -- 10 the locomotive driver was unable to see his fireman there would no way that the cane train, having been put into motion, could be stopped if a person slipped and fell into a position of danger. Whilst no doubt it would be impossible to ensure that the area where the Plaintiff was required to perform his tasks remained at all times free of any materials - occasional pieces of cane fall from time to time I am satisfied that here the Defendant failed to make any attempt to clear the fallen cane from the previous season and the rough ballast which had been allowed to lie in the area where the Plaintiff was walking and that these materials were so extensively spread as to be a hazard to someone walking in the position the Plaintiff was walking. I infer that the Plaintiff slipped and fell on the debris scattered around. I think that if reasonable steps had been taken to keep the area clear for persons required to walk in the area in the course of their duties it is unlikely that the Plaintiff would have slipped and fallen. The position where there is an occasional piece of cane on the ground which can readily be avoided is of course entirely different to the position where the material is so extensive that a person walking in the area cannot avoid standing on such material. Whilst this is the primary basis upon which I think the Plaintiff is entitled to succeed I think that associated with this is the failure by the Defendant to draw to the Plaintiff's attention the risks associated with performing work in this area and to institute a system which would have ensured that the persons performing tasks--- such ··as -those in------- -- 10 of 16 -- 1 1 which the Plaintiff was engaged took up a position which was sufficiently clear of the line of the cane bins to prevent them coming to grief in the event that they slipped and fell. That is the Defendant should have drawn the attention of its employees to the risks the debris posed and what should be done by them to avoid injury. I am not satisfied that the Plaintiff is guilty of contributory negligence. The allegations are primarily based upon the proposition that he was engaged in the activity I have already referred to or similar activity or that he was walking in front of and inside the line of the moving bins. I have already found against the Defendant on these factual issues and there is no basis, in my view, for a finding of contributory negligence against him on these or any other basis. The Plaintiff was born on the 1Oth August 1952. He was a plumber by trade but had not worked in his trade for more than 10 years. He suffered a degloving injury to the right foot. The right great toe and the medial two toes were surgically amputated. He also sustained a fractured right scapula and it would seem an injury to the lumbar spine (this is thought by the orthopaedic surgeon who has provided reports to have been in the nature of an injury to the soft tissues on the left side of the lumbar spine close to the pelvis). The Plaintiff's injuries and treatment are set out in Exhibit 13. His treatment included skin grafting taken from his right forearm. Dr. Clarke, an orthopaedic surgeon, has provided -a --number of- - - -- 11 of 16 -- 12 reports (Exhibit 12). In his most recent report of the 12th October 1993 he assesses the Plaintiff as having the following permanent disabilities:- (a) 40% loss of function of the right foot, (b) 15% loss of function of the lumbar spine, (c) 1 0% loss of function of the right arm in the flap donor area, (d) An overall 20% loss of bodily function being the consequence of (a), (b) and (c). Dr. Clarke is of the opinion that the Plaintiff is not capable of work as a plumber and that his capacity to engage in any employment is severely limited because he is able to wear shoes for only a very limited period. He thinks he is capable of some part-time light work only. The Plaintiff currently lives on a small farm in the Atherton Tablelands where he and his wife conduct a small flower farm. This is not profitable at present and is in the nature of a hobby. The Plaintiff has been interested in this activity for some time and in fact went to the Childers area initially for this purpose although he did not undertake such activity whilst he was there. Dr. Doyle, a Plastic and Reconstructive Surgeon, has prepared a number of reports (Exhibit 11) dealing with the Plaintiff's various complaints particularly so far as sensory losses and disfigurement are concerned although he also deals with some of the functional implications of the Plaintiff's disability of the lower leg. The Plaintiff has undergone a number of procedures and has had a good deal of difficulty in coming to -- 12 of 16 -- 13 terms with his disability. There is a report of an occupational therapist which also outlines the limitations the Plaintiff would have in employment. I accept these opinions. The Plaintiff, through a work assessment scheme, was placed with an orchid farming business. This was for a limited time each week and ceased when a dispute about the time at which the Plaintiff was asked to start each morning occurred. He experienced a good deal of difficulty with his foot whilst attempting to perform this work. The Plaintiff in (see Exhibit 6) says that he is able to work for about 4 hours each day before he experiences pain and discomfort in his foot. He has not been able to wear boots which were specially made for him and I accept what he says in this regard. He usually wears joggers. He frequently gets spasms in his right leg. He continues to suffer from pain in his lower back and has to take care with his arm as it is tender if he knocks or bumps it. The Plaintiff's foot is grossly disfigured and there is marked scarring of his arm. I accept what he says about his embarrassment as a result of the scarring and disfigurement. As I have already said the Plaintiff impressed me as an intelligent and an honest witness. I accept the various complaints which he makes and the difficulties and the limitations which he says the disabilities place upon him. These are quite significant. It was the Plaintiff's evidence that at the time he was injured he had formed the intention to leave the Childers area--~ --- -- -- 13 of 16 -- 14 and return to the Atherton Tableland and resume his trade. As to this aspect of his evidence I have some reservations as to whether he had plans as firm as he suggests. He had been away from his trade for a substantial time. Nonetheless I am prepared to accept that he would have if necessary returned to his trade for the purposes of supporting himself and his family and think that he would have been in some income earning activity but for the accident. He is deprived of his trade and is also unable to engage in any employment which requires him to be on his feet for extended periods or for that matter which would require him to sit for extended periods. He is capable of performing lighter work for limited periods. He impressed me as someone who would actively pursue whatever employment opportunities presented themselves and I think he will obtain from time to time work within his capacity. He would either have to be engaged in some activity on his own behalf or be employed by an understanding employer who would allow him to cease work when necessary. He has suffered a major impairment of his capacity to work and this must result in a substantial damages award. I allow the Plaintiff $60,000.00 as general damages. He has received from the Workers' Compensation Board a lump sum payment of $31,372.50. I ascribe $20,000.00 to past pain and suffering. In these circumstances no interest should be allowed. The Plaintiff worked at the orchid farm I have already referred _to initially without - pay and - -then- -for - some -- 14 of 16 -- 15 considerable time (from 6th March 1992 to 18th March 1993) in a paid capacity. This was part-time work only (approximately 4 hours per day) and he was able to manage this. His income during the period was $81984.00. This was a gross figure but would not have attracted any tax. He has received by way of payments from the Workers' Compensation Board and the Department of Social Security the sum of $33 1 932.00 nett. I allow the sum of $40 1 000.00 for past economic loss. I allow interest at the rate of 6% per annum on the difference for the period since the accident producing a sum of $11300.00. For future economic loss I allow the sum of $167 1 146.00. I have adopted a figure of $270.00 per week and have allowed this for 18 years. The Plaintiff makes a claim in respect of care and assistance during the period between the time of the accident and present. I am satisfied that the Plaintiff did require a good deal of attention and assistance during his convalescence but agree some modification to the claim is necessary in view of Mr. Crimp's evidence. I allow $3 1 500.00 under this head. I allow interest in the sum of $250.00. Special damages including the sums paid by the Workers' Compensation Board total $16 1867.15. The total of the various heads of damages is $289 1 063.15. From this total has to be deducted the sum of $73 1872.51 being the monies paid by the Workers' Compensation Board to the Plaintiff. There will be judgment for the Plaintiff against the Defendan-t~'-- -- 15 of 16 -- 16 in the sum of $215,190.64 with costs to be taxed. -- 16 of 16 --