Cox v Stradbroke Sandblasting Company Pty Ltd & Ors [1993] QSC 38

5 <~"'1.3(o38 State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Cop)Tight in this transcript is vested in the Crown. Copies thereof must not be made or sold without the \Hitten authority of the Director, State Reporting Bureau.) (P.;:~~~-; z~-; :·~; ;~~ ;~~~i2-s, _-;ffil bJ~;"";"~" 8c~ou SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION RYAN J No 110 of 1988 DARREN CRAIG COX Plaintiff and STRADBROKE SANDBLASTING COMPANY PTY LTD First Defendant and KEVIN WELSH Second Defendant and SUNCORP INSURANCE & FINANCE Third Party BRISBANE .. DATE 05/03/93 JUDGMENT 1 r y .. egps H&E *MS r e& •!Ufi'ilil tf'A L !illS fiii '"TS"'! -- 1 of 20 -- 050393 gfh {Ryan J) HIS HONOUR: I give judgment for the plaintiff against the first and second defendants in the sum of $326,801.50 and I order them to pay his costs to be taxed. I dismiss the claim by the defendants against the third party 10 and I order them to pay the third party's costs to-~e taxed. I publish my reasons. 20 30 40 50 JUDGMENT 60 2 -- 2 of 20 -- IN THE SUPREME COURT OF QUEENSLAND No. 110 of 1988 BETWEEN: DARREN CRAIG COX Plaintiff AND: STRADBROKE SANDBLASTING COMPANY PTY. LTD. First Defendant KEVIN WELSH Second Defendant SUNCORP INSURANCE & FINANCE Third Party JUDGMENT - RYAN J. Delivered the Fifth day of March, 1993 CATCHWORDS: Negligence, unsafe system of work, employee injured when crane struck electric transmission lines, whether employee contributorily negligent, crane being used to carry objects to stationary trailer, whether liability in insurer of trailer on ground of liability in respect of vehicle. Counsel: Solicitors: Fleming Q.C. with N. Thompson for the Plaintiff R. Hanson Q.C. Defendants for the First and Second R. King-Scott for the Third Party B.F. Whitehouse & Co. for the Plaintiffs. Quinlan, Miller & Treston for the First and Second Defendants O'Mara, Paterson & Perrier for the Third Party Hearing Date: 8, 9, 10 February 1992 -- 3 of 20 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: No. 110 of 1988 DARREN CRAIG COX Plaintiff STRADBROKE SANDBLASTING COMPANY PTY. LTD. First Defendant AND: KEVIN WELSH Second Defendant AND: SUNCORP INSURANCE & FINANCE Third Party JUDGMENT - RYAN J. Delivered the Fifth day of March, 1993 The plaintiff claims damages against the first and second defendants for injuries he suffered while assisting the second defendant in the course of his employment by the first defendant. The defendants deny that the injuries were caused by the breach of any duty they owed to the plaintiff, and allege that the plaintiff caused or contributed to the occurrence of his injuries by his own negligence. The defendants claim against the third party on the basis of a policy of insurance issued by the third party pursuant to the Motor Vehicles Insurance Act 1936-1979. They allege that if -- 4 of 20 -- 2 they are liable to the plaintiff for damages, the first defendant is entitled to indemnity from the third party. The accident occurred on 8 September 1987. The plaintiff, who was born on 22 July 1969, was at the time aged 18 years. He had been employed by the first defendant approximately one month before the accid~nt as a hopper-boy and general labourer. A hopper boy's responsibility is to keep sand in the hopper which is used for sandblasting, and to act as a general labourer assisting the sandblasters and painters. On 8 September 1987, the plaintiff was engaged in the course of his employment with the first defendant in assisting the person in charge, the second defendant Mr. Welsh, to move steel fabricated tanks from a position where they had been sandblasted and painted. Mr. Welsh was a director of the first defendant, which carried on the business of sandblasting and painting structural steel. Two other employees of the first defendant, Mr. Walsh and Mr. Abela, were also working on the site. The site was an open paddock, with a fairly rough surface. Electric power lines ran through the site. The plaintiff gave evidence that the power lines went across the property at an angle to the position at which the work was being done, and at a distance of about 40 metres. There were four large tanks to be moved. The plaintiff described them as being 7 to 8 feet in length. They were to be moved by a mobile crane which was on the site onto a semitrailer which had been parked on a track in the paddock, about 40 metres from the tanks. -- 5 of 20 -- 3 Mr. Welsh drove the crane, and placed two of the tanks on the trailer. He was assisted by Mr. Walsh. The plaintiff helped Mr. Welsh to move the third tank. He said that there were lugs at each end of the tank. He attached the tank by two chains to the crane. Mr. Welsh then lifted the tank to a height the plaintiff described as being the height of his chest. Mr. Welsh told the plaintiff to hold onto the tank, directing him to get hold of the tank and hold it still. The plaintiff gave evidence that there was a danger the tank would hit the remaining tank, and that he was trying to prevent it from swinging around. Mr. Walsh came to assist him, and seized the other end of the tank. Then the accident happened, when the jib of the crane came into contact with overhead power lines carrying 110,000 volts of power. The plaintiff admitted that he had noticed the overhead wires previously and he appreciated that they carried electricity. He said that it did not occur to him at the time of the accident that the crane was working under power lines, and that he was concentrating on preventing the tanks from colliding. He was unable to recall in which direction the crane driver was travelling at the time of the accident. He said that it was necessary for the crane to move across the rough terrain when taking one of the tanks from where it was situated to place it on the trailer. He could not recall at what height the other two tanks had been lifted, but said that when the crane approached the trailer, the jib was lifted so that the tanks could be moved up onto the trailer. He described the tank he was helping to move as being smaller than the two tanks on the trailer. -- 6 of 20 -- 4 Mr. Walsh gave evidence that he was on the back of the trailer, and that the plaintiff was helping Mr. Abela to put chains on a tank. He jumped down from the trailer to help Mr. Cox steady the tank. He said that the tank would have been about 4 feet 6 inches from the ground, and the back of the trailer was about the same height. He said that the tank was not high enough to be dropped onto the back of the trailer, but that it nearly reached that height. He said that the crane was moving backwards when the flash occurred. He had just put his hand on the tank when the accident happened. Mr. Walsh said that it was only necessary to raise the tanks two feet from the ground to negotiate safely the rough ground. When the accident happened, Mr. Welsh had lifted the tank nearly high enough to put it on the truck, though there was no need to raise it as high as that to transport it to the trailer. He gave conflicting evidence as to whether the two tanks had been transported to the trailer at a height of two feet or five feet above the ground, but eventually agreed that they had been lifted only about 2 feet until they were clear of the wires and then raised to a height to get them onto the trailer. Mr. Walsh described the trailer as being about 20 to 30 metres from the tanks, which were under the power lines. He said that on the first two occasions, Mr. Welsh had travelled backwards about 60 feet from under the power lines with the tank held low, then he slewed the crane to the right about 30 degrees and came down to the trailer and commenced raising the load after he had finished backing. On the occasion of the accident, he -- 7 of 20 -- 5 raised the tank before he finished backing. The crane was moving backwards when the accident occurred. Mr. Abela gave evidence that after two tanks had been loaded on the trailer he put one chain on the third tank and had walked away when he heard an explosion above him. He said that the tanks were under the power lines, and that the trailer was not near them. The third tank was shorter than the two which had been moved. lifted. He did not notice how high the tanks had been The transmission lines at the location of the accident were 7.13 metres above the ground. A test which involved extending the boom of the crane fully and raising it to its maximum height showed that the distance between the top of the boom and the ground was 9.8 metres. Visibility from the driver's seat was poor as to the location and activities of persons working about the front of the crane and as to events occurring above the top of the boom when it was raised. I am satisfied that the plaintiff was injured when he was holding onto a steel tank being carried by a crane and the jib of the crane which was being operated by the second defendant came into contact with power lines. I am satisfied also that the injuries were caused by the negligence of the second defendant. The crane, which was owned by the first defendant, was being used in close proximity to power lines. In evidence given by the second defendant in other proceedings the transcript of which was tendered, he said that when he arrived at the property in order to pick up the drums, he was shaken to find that they were under the power lines. He was therefore conscious of their presence. -- 8 of 20 -- 6 Even without this admission I would have been satisfied that he was aware of the presence of the lines on land being used by the defendant. It was therefore foreseeable by the second defendant that if the jib of the crane he was operating came into contact with the lines, any person in contact with a tank being carried by the crane would be exposed to the risk of serious injury. He was aware that the plaintiff was in contact with the tank, as he had directed him to hold it. In the circumstances he was obliged to use care to ensure that no contact was made with the lines. The inevitable conclusion is that he failed to use the care which was required in the circumstances, and that this caused the plaintiff's injury. The second defendant is therefore liable to the plaintiff, and the first defendant is vicariously liable. In the amended statement of claim, it is alleged that the contact of the jib of the crane with the overhead power lines was in breach of the first defendant's contract with, and in further breach of the duty owed by the second defendant to, the plaintiff. Allegations are made of failure to provide a safe place of work, to provide a safe system of work, and to provide safe equipment with which to perform work. Even if these particulars were not made out, the plaintiff would be entitled to succeed on the basis of the vicarious liability of the first defendant for the second defendant's negligence. See Katsili v. Broken Hill Pty. Co. Ltd. (1978) 52 ALJR 189. However, in my opinion it is established that the fiist defendant failed to establish a safe system of work. It was unsafe to operate a crane in a position where it could come into contact with overhead wires, without providing means to ensure that any person -- 9 of 20 -- 7 who was in contact with the load was insulated from the crane. Evidence was given by a mechanical engineer of measures, such as the fitting of an insulated hook or tag lines or a detector, which would have prevented the injury. I accept that evidence, and consider that a reasonable employer should have adopted one of these means to prevent the occurrence of an accident of the kind which eventuated. I consider that the defendant's claim that the plaintiff contributed to his injury cannot be sustained. It is well settled that, as was stated in McLean v. Tedman (1984) 155 CLR 306 at p. 312, in discharging his duty to take reasonable care to avoid injury to his employee an employer is bound to have regard to any risk of injury that may occur by reason of an employee's inadvertence, inattention or misjudgment in performing his allotted task. In this case, I accept the plaintiff's evidence that he had noticed the wires prior to the accident and appreciated that they carried electricity, but that it did not occur to him at the time of the accident that the crane was working under wires carrying electricity. He said, and I accept as true, that he was concentrating on ensuring that the tank did not collide with another tank, and that it did not occur to him to keep an eye on the overhead power lines while the tank was being moved. In these circumstances, where the plaintiff was directed by Mr. Welsh to hold onto the tank, it is impossible to conclude that the plaintiff contributed in any way to his loss. It is convenient at this point to consider the claim by the defendants against the third party. I am satisfied that the crane was moving backward when the accident happened, that the -- 10 of 20 -- 8 tank had been raised to a height nearly sufficient to enable the tank to be dropped onto the back of the trailer, that the driver had slewed the crane so as to move towards the trailer and that the trailer was at a distance of approximately 30 metres from the tanks which were under the power lines. I am satisfied that it was not necessary to raise the tank to the height at which it was being carried in order to clear the rough terrain which had to be traversed. The first defendant claimed that it was the registered owner of the trailer, and there was subsisting between it and the third party a policy of insurance issued by the third party pursuant to the Motor Vehicles Insurance Act 1936 under which the third party was obliged to indemnify the defendants against all sums for which they may become legally liable by way of damages by through or in connection with the trailer. This was admitted by the third party. It claimed however that if the defendants were liable to the plaintiff for damages, then the liability was not by way of damages in respect of the trailer for accidental body injury, and that the plaintiff's injuries were not caused by through or in connection with the trailer. In Technical Products Pty. Ltd. v. S.G.I.O. (1989) 167 CLR 45 at p. 48 it was said in the judgment of Brennan, Deane and Gaudron JJ. that the effect of the words "in respect of such motor vehicle" in s. 3 ( 1 ) of the Motor Vehicles Insurance Act 1936 is "to add to the requirement that the relevant accidental bodily injury be caused by, through, or in connection with the motor vehicle the further requirement that the circumstances giving rise to the relevant legal liability by way of damages for that -- 11 of 20 -- 9 injury show a discernible and rational link between the liability and the particular vehicle." In that case, they considered that there was nothing which would justify a conclusion that the stationary trailer and container attached to it into which loads were being lifted by a fork-lift had any involvement in the employee's accident beyond their passive presence as the receptacle into which bags were being loaded. It was submitted for the third party that there was no relationship between the trailer and the act which gave rise to liability. For the defendants, it was submitted that there was such a relationship. It was claimed that the jib of the crane touched the power lines because it was lifted higher than otherwise it would have been in preparation for placing the tank on the trailer. The dimensions of the trailer therefore made an active contribution to the event which occurred. This had the consequence that there was a discernible and rational link between the liability and the trailer. I am unable to accept as correct this submission by the defendants. The act which gave rise to the liability of the defendants was the way in which the crane was used, not any use being made of the trailer. It was on that basis that in Technical Products Pty. Ltd. v. S. G. I. 0. at p. 52 Dawson J. concluded that liability was not in respect of the trailer. His remarks seem to me to be equally referable to the present case. The fact that the crane was carrying the load at a height which was related to the height of the trailer is, in my opinion too remote ·a connection with the trailer to satisfy the criterion that the liability must be in respect of the trailer. -- 12 of 20 -- 10 Accordingly, I dismiss the claim by the defendants against the third party. I turn now to the assessment of the damages payable to the plaintiff. The plaintiff was admitted to the Royal Brisbane Hospital on the day of the accident. A report by the Medical Superintendent states that he sustained burns to approximately 50 per cent of his body surface area, mostly to his face, neck, anterior chest and abdomen, left arm and right leg. He had been resuscitated at the Princess Alexandra Hospital where operations to the right leg had been performed to preserve circulation to his right foot. At the Royal Brisbane Hospital, an operation was performed to the left arm. Three days later debridement and split skin grafting of burns to the left upper limb and left anterior chest was performed under general anaesthetic. Skin donor areas to the upper limb were mostly from the left thigh and anterior abdominal wall. After the operations, the plaintiff became septic. On 15 September 1987, debridement and split skin grafting of full thickness burns to the right leg was performed under general anaesthesia. Debridement and split skin grafting of burns to the chest and right lower limb was performed on 25 September. On 2 October debridement and split skin grafting of burns to the left chest wall and left axilla was performed under general anaesthesia. Further debridement and split skin grafting of lower abdominal and leg burns was performed on 7 October. -- 13 of 20 -- 1 1 On 23 October further debridement and split skin grafting of burns was undertaken, this time to areas on the right hand, left upper arm, right leg, right ankle and left foot. Further split skin grafting to the right ankle and right third and fourth fingers was performed on 30 October 1987. A final debridement and split skin grafting of burns to the left back and left axilla was performed on 11 November. He was discharged on 19 November 1987. The plaintiff said that he recalled being at the Princess Alexandra Hospital and suffering excruciating pain. He could only remember the last month of his period at the Royal Brisbane Hospital. There had been great pain involved in the changing of the dressings and in bathing. The plaintiff was seen monthly at the Burns Outpatient Clinic in 1988, and also at Occupational Therapy where pressure garments were fitted. These were discontinued in January 1989. He was in the Hospital again late in November 1989 for further split skin grafting. The plaintiff gave evidence that he had three periods of a month, each in hospital after his initial hospitalisation. He was required to wear a pressure garment for 18 months. This was very tight and very hot, and caused discomfort in hot weather. He said that he has pain in his right ankle, and the skin cuts easily. Dr. Millican, a Plastic and Reconstructive Surgeon, examined the plaintiff i~ May 1989. He reported that the plaintiff had been left with a permanent foot drop due to the loss of muscle and tendon from his right shin. The aesthetic deformity from the -- 14 of 20 -- 12 grafts was significant. No further plastic procedures were indicated to his wounds. In oral evidence, Dr. Millican said that the scarring would affect the plaintiff's ability to work in hot climates and would make him susceptible to abrasions. He thought that the scarring covered about 30 per cent of the plaintiff's body. Dr. Pegg, the Director of the Burns Unit at the Royal Brisbane Hospital, reported in April 1990 that the plaintiff had had a very severe injury and was critically ill for some considerable time. He had post traumatic stress disorder with big problems in relation to his body image and he had periods of depression. He stated that the plaintiff still had considerable disability in relation to his right ankle and lower leg being approximately 50 per cent disability in this area. He had disability in relation to his left axilla being approximately 20 per cent disability for the left axilla. He thought he may well have problems in the future particularly to his right leg and possibly his left axilla. In oral testimony, Dr. Pegg said that his condition was now stable and unlikely to change much. He said that he could have a problem through an inability to sweat if he performed labouring work in the direct sun. He thought there was a 1 0 per cent increased chance of getting skin malignancies. He said that the plaintiff's lower leg would cause him many problems in working. Dr. Dickenson, an orthopaedic surgeon, performed operative procedures on the plaintiff's right foot. These were on 25 October 1989 to transfer the posterior tibial tendon to his foot, on 18 December to remove a button from his foot following -- 15 of 20 -- 13 the first operation, and on 23 April 1990 for correction of the clawed toes of his right foot. He reported that he was now able to walk without a foot drop split. He stated that the plaintiff's permanent partial incapacity of his right foot as a proportion of his right lower limb is 30 per cent permanent partial incapacity. In oral evidence, Dr. Dickenson said that the plaintiff would have difficulty in standing for hours, but he could do less than a full day's work. He could do a job which did not require him to be on his feet all the time. Dr. Gillett, who is also an orthopaedic surgeon reported that the plaintiff's main ongoing problem relates to his right foot and ankle. He thought he may require in approximately 10 years time further surgical procedures which currently cost $3,000 to stabilise the hindfoot. He stated that the plaintiff would be able to work in a sedentary capacity in relation to clerical or sitting type jobs. He had been left with a permanent partial disability of 36 per cent to his right lower limb function, and with a disability of 10 to 15 per cent of the function combining both upper limbs. Dr. Mulholland, a psychiatrist, examined the plaintiff in June 1989. He reported that from a psychological angle he had coped relatively well and exhibited a mild degree of adjustment disorder related to his scarring but psychiatric therapy was not indicated. In a later report he recommended that he receive counselling regarding issues to do with his scarring. In oral evidence, Dr. Mulholland said that the main issue for him was one of self-image and self-esteem in relation to his scarring, which -- 16 of 20 -- 14 had the consequence that he avoided contacts and relationships with females. Mr. Ira Smith, a psychologist, gave evidence that in his opinion the plaintiff did not have the intellectual capacity to do clerical work. He was not able to fulfil the requirements of such work for accuracy and reliability. He could not determine if this was affected by the accident. Mr. Smith recommended that the plaintiff receive counselling at a cost of $4,500 to $5,500. The plaintiff left school in 1986 in Grade 10, which he had repeated. He obtained employment at a wire-works as a spot welder, but he suffered an injury in the form of a burned hand and he could not work quickly enough. He was put off after one month. He was unemployed for six months. He then obtained work at a bakery which lasted three months. He lost this employment because he did not inform his employer he was having a day off. He was unemployed for six months but received employment with the first defendant in August 1987. He obtained work in a factory about 18 months after the accident, but he was too slow, as he could not move his hands quickly enough. He obtained work for six months washing cars. He left this work to go into hospital for more operations. He said that he had undergone retraining for office work and had applied for at least 100 jobs. He did not get a job, as he was too inexperienced or too slow. He has been on the disability pension since October 1992. He said that he did not like himself, as a result of his scarring and the injury to his foot. He keeps to himself, and feels very depressed and upset. He did not see much prospect of -- 17 of 20 -- 15 ever finding a job. He used to play cricket and ride a bicycle, but cannot do so now. In cross-examination, he said that he had intended to stay with the first defendant as long as a job was available. He thought that he could do clerical work if he could work at his own speed. I accept the plaintiff as a credible witness. I am satisfied that the plaintiff suffered great pain in the three months following the accident, and that he still experiences a degree of pain. He has undergone the extensive treatment referred to in the medical evidence, and has the degree of scarring and disabilities to which I have referred. There has been a marked effect on his social life and on his ability to mix with others and to form a relationship with young women. For pain, suffering and loss of the amenities of life, I assess damages in the sum of $75,000. I apportion half of this to the pre-trial period. I allow no interest in respect of the pre-trial component of pain and suffering in view of the payment made by the Workers' Compensation Board for non-economic loss. See Haines v. Bendall (1991) 65 ALJR 349. Evidence was given by the director of a sandblasting and painting business that he paid hopper boys $10 an hour, and that the award rate for sandblasters is $12.08 per hour. Overtime is available for 10-20 hours per week, at a rate of time and a half. Approximately 50 per cent of hopper boys become sandblasters. It appears from a report which was tendered from the Department of Employment, Vocational Education, Training and Industrial Relations that. a labourer under the State Mechanical -- 18 of 20 -- 16 engineering award would have received the wages set out in the report. On that basis, I calculate the net wages the plaintiff would have received from the date of the accident at $62,000. The income he has received amounts to $10,728. His net economic loss is therefore $51,272. As it is likely that he would have earned rather more than the figure I have estimated by working overtime or receiving over-award payment for part of the period, I make no discount from that figure for the usual contingencies including the contingency that he may have spent some time out of work. I allow interest at six per cent per annum for five and one-half years on that amount, less the amount of compensation paid to him. That amounts to $7,328. I estimate future economic loss on the basis that he would have continued to work as a sandblaster until age 60 at the award rate of $12.08 per hour for 40 hours per week until age 60. That amounts to a net weekly income of $390. The present value of his future income on that basis would be $351,780. I would discount this amount by 30 per cent to allow for the usual contingencies and for his residual working capacity. I am satisfied that he is capable of doing labouring work which does not involve him in standing for extended periods or require heavy lifting and which he can do at his own pace. Though the availability of such positions is no doubt very limited, he showed by the income he earned in the financial year ended 30 June 1989 that he is capable of earning some income despite his disabilities. Accordingli, I assess damages as follows: -- 19 of 20 -- 17 (a) Pain, suffering and loss of the amenitiesof life (b) Past economic loss (c) Interest on past economic loss (d) Future economic loss ((e) Special damages (agreed) (f) Medicare Refund (g) Fox v. Wood component (h) Workers Compensation Expenses (c) Future: Counselling Surgical ($3,000 in 10 years time) Total $75,000.00 51,272.00 7,328.00 246,246.00 4,500.00 738.95 3,581.55 10,159.34 5,000.00 1,845.00 $405,670.84 From this amount there is to be deducted the sum of $78,869.34. I give judgment for the plaintiff against the first and second defendants in the sum of $326,801 .50, and I order them to pay his costs to be taxed. I dismiss the claims by the defendants against the third party, and order them to pay the third party's costs to be taxed. -- 20 of 20 --