Barnwell v Austcorp Quarries Pty Ltd [1992] QSC 373

I I I £"~ Se- dfo/ 31~-! · ~ lt StatetoReporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) c SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DERRINGTON J J c No 27 of 1992 DARRYL MALCOLM BARNWELL and AUSTCORP QUARRIES PTY LIMITED c CAIRNS .. DATE 02/09/92 c .. JUDGMENT ----·---- REVl2EG l..0PiES ISSUED State: ;: ::;::::orting Bureau Date q.. I ~ 1 't 1 r~--------------------------------------------------------------------------- -- 1 of 9 -- 10 20992 klj (Derrington J) IS HONOUR: The plaintiff was injured as an employee of the efendant when a large saw blade used for cutting marble locks slipped in its slings as it was being hoisted into on the.machinery part of the saw. He was-helping to it into place and when it fell it struck his left hand most of his fingers but leaving his thumb untouched. ater surgery removed the balance of the little finger so that is hand now has all joints of all four fingers neatly emoved. His right hand is the dominant one. H~ is seriously able to C isabled by this but is a resourceful man and has been 20 l. dapt well so as to achieve quite a deal of usefulness with his hand and thumb by various· tricks of manipulation. ris accident occurred largely as he described it in his kvidence except that, in accordance with the practice of the 30 I c c 40 50 defendant, a back-hoe rather than a mobile crane was being hsed to lift the load. The back-hoe was not as suitable as a ~rane for this purpose and part of the cause of the accident ~an be attributed to the use of this unsuitable machinery. ~he plaintiff was not responsible for its use on this occasion jnd he cannot be regarded as guilty of any negligence in attending responsibly to his work in the manner required by ! ~he defendant. I he causes of the accident were that: 1. The slings slipped because the hooks on their ends hich were wrapped around the load were placed the wrong way ound when hooked back on to the sling. This had the effect instead of choking upon the sling to which it was ttached and tightening on the load, there was an opposite 10 20 30 40 50 -----=60~+------------------------------------------=~~~=-----------------~ 60 JUDGMENT Govt. Printer, Qld. 2 -- 2 of 9 -- . 1 10 20 30 20992 klj (Derrington J) ffect so that the hook permitted the sling to remain loose or ecome more so so that it more easily slipped along the smooth dges of the load 2. The back-hoe had a jolting affect which contributed to he slipping of the sling along the smooth edge of the load. 3. No method of preventing the slipping of the sling in his way was adopted. In respect of the third factor referred to, it has been shown brom the system adopted immediately after the accident that fart of,the, smooth edge of the load could be unbolted and femoved so ~hat the sling could fit into an angled crevice ~eft by the removed part which would prevent its movement long the length of the load . . he defendant was negligent in requiring the plaintiff to work in dangerous circumstances which could have been avoided, more I barticularly by its use of unsuitable equipment in the form of 40 lhe back-hoe or alternatively by its failure to have a system hereby the smooth edges of the load would be replaced by some feature which would have prevented the load from slipping. he defendant was also liable through its servant or agent in is failing to apply the hooks of the slings in the proper ....... \ 10 0 30 0 40 0 so 50 ay. Had the load been moved by a mobile crane operated by a ualified person, the crane driver should have seen that the oad was not properly slung and would then have refrained from roceeding with the operation. -----=60~+-----------------------------------------------------------------~ 60 Govt. Printer, Old. JUDGMENT 3 -- 3 of 9 -- 10 20992 klj (Derrington J) these matters are confirmed by the evidence of Mr illigan, the witness led by the defence, and it is surprising in the light of his evidence the defence was persisted While his evidence should be preferred to tnat of the laintiff and any other witnesses who gave evidence concerning hat matter, his evidence clearly discloses that the defendant as nevertheless very negligent and that no blame could be ttributed to the plaintiff. He was a witness who appeared to e telling the truth despite considerable embarrassment as to ny disservice which he may be doing to the plaintiff, but his C2o j ~vidence upon the point was clearly superior to that of the c laintiff. hilst the defendant may have been dissatisfied with the blaintiff's version of the accident, that does not mean that 30 ~t should have disregarded the true situation of which it was kully apprised. The plaintiff's false story was probably bngendered by his adherence to a false story concocted by the ~efendant's management in order to cover its failure to comply rl i th proper procedures required by law. He may also have been 40 r· concerned that the true version may have landed him with some ~ bf the responsibility for his accident. As it turns out it I bid not do so. But that does not justify his conduct in . rresenting a false story to the Court. so I fhe plaintiff is entitled to recover fully his damages without bny deduction for contributory negligence because nothing has een shown about his conduct in respect of the accident that ight afford any defence of contributory negligence on the sual principles. 10 :o 30 I 40 . 50 -----=60~+------------------------------------------------------------------~--J 60 Govt. Printer, Old. JUDGMENT 4 -- 4 of 9 -- 20992 klj (Derrington J) he accident occurred on 12 June 1989. The plaintiff had been orn on 8 September 1948 so that he was then approaching 41 ears of age and is now almost 44. He had been a hard working an who had successfully engaged in a number of occupations 10 10 nd was able to adapt very satisfactorily to them, so that his eneral capacity to obtain employment was normally good. He as not afraid of hard physical work, although it must be oted that his age was advancing and it must be expected that ·n the course of time he would have been less inclined to wj Q;~ undertake the more heavily physical and uncomfortable types of 30 40 50 ork. e was 1n hospital as the result of the injury for. only four ays and was discharged from further treatment in less than hree weeks but he was subsequently required to undergo a urther operation for the removal of part of his little · inger. For that he was in hospital for one day only and was discharged from treatment aL~er a week. His hand is now ! enerally healed except that it is somewhat vulnerable in the rea where the fingers have been removed from the hand. I re was able to return to work on 15 August 1989, that is about fhree months after the accident, and he undertook various tasks, including that of mine manager, until the business losed down. Even then he was kept on for some weeks as a aretaker until the business was taken over by a receiver. ince then, however, he has been unable to find work as the esult of the combination of hard economic times and his isability. According to his evidence, there is considerable CJ 30 !0 l 40 I p so w w Govt. Printer, Qld. JUDGMENT 5 -- 5 of 9 -- - 10 20992 klj (Derrington J) ompetition for such jobs as may be available. Had he not een injured it is likely that he would not have been kept on s caretaker at the former business for the period of six eeks when he was employed. He would have probably suffered ome period of unemployment, but with his general adaptability nd work ethic he would probably have found some alternative mployment. is loss during the period of convalescence was about $5,000, C'2o nd his reduced earnings during the remaining period of his ~mployment with the defendant until the business was closed kas about $4,000. However, he received about $2,800 for the beriod during which he was employed as a caretaker. For the I 1 · h · · fo low1ng two years to t e present t1me, dur1ng which he has I been unemployed, he should be allowed a substantial amount to 3o I ~epresent the chance that he would have obtained employment but the figure should still reflect a significant factor for hhe prospect that because of the lack of employment generally ~n his community he would probably have been unemployed for I - kome of this period. A suitable figure to cover his loss to 4o I the date of trial, reflecting all these factors is $40,000. ind there should be no interest upon this because of his I feceipt of workers compensation and unemployment benefits exceeding that sum. 50 or the future it is likely that he will soon obtain mployment in a quarry at Mount Isa where he will probably be in a remunerative and responsible capacity within his capability. However, not-withstanding the reasonable respects that this job will be long lasting there is a very lu :J 30 40 50 ----~6~0-4-----------------------------------------~==~====~--------------~.! 60 JUDGMENT Govt. Printer, Qld. 6 -- 6 of 9 -- . I 20992 klj (Derrington J} eal contingency that, for one reason or another, it may be ost to him and he will again be thrown into competition on he open labour market where, despite his good attitude and daptability, he will still be at a disadvantage because of he obvious disability which he suffers as the result of the 10 10 20 30 40 oss of his fingers. This will probably be a more serious aetraction from his prospects than it deserves because ould-be employers are less likely to be aware of his capacity o accommodate to his disabilities and would be put off by the pparent extent of the disabilities because the loss is so obvious. ' I ft is impossible to assess future economic loss upon the basis of any mathematical calculation because the degree of loss r l ill change from time to time. It will consist at some times t total loss of income because of his loss of employment khich he otherwise would have obtained if he had not been bisabled. At other times he will work for a wage which will be less than he would have commanded if he had not been I hisabled. A suitable figure to reflect the countervailing ontingencies is $80,000. fpecial damages are agreed at $528. The amounts for which he 6hould be recompensed under the Fox V Wood principle is I 0 0 40 0 50 50 r 4,232.50. Neither of these figures attracts interest. ~ is general damages do not sound so much in the pain and uffering which he endured. No doubt it was a matter of onsiderable pain at the time but his injury was not as severe s many which come before these Courts. Moreover, his ----~6~0~~----------------------------------------------------------------~ 60 Govt. Printer. Old. JUDGMENT 7 -- 7 of 9 -- 20992 klj (Derrington J) reatrnent and convalescence were substantially less than is ften encountered here. However, there is some ongoing enderness but more particularly there is the very substantial nconvenience and disturbance which he suffers by reason of uch a serious loss to his left hand. He suffers some 10 mbarrassment but is generally overcoming that because he is a sensible man. His disabilities prevent his undertaking aI recreational pastimes which he formerly enjoyed. other serious factor is that his unemployment and feeling of C' 20 'nadequacy in being unable to provide for his family caused him considerable distress and depression and, indeed, has led I c to three separations from his wife. That is the present ~osition but he hopes, probably with justification, that when fe obtains employment and his feelings improve from this, his marriage will recover. It is quite obvious from his 30 l rppearance in the witness box that he seriously feels his loss of employment and role as the family provider. It suitable figure for general damages is $60,000. Of that ! interest should be allowed on $20,000 providing a figure of 40 I c r·300. I In summary, his award should be as follows: of earning capacity to date of trial $ 40,000 50 of future earning capacity $ 80,000 damages $ 60,000 $ 1,300 pecial damages $ 528 OX V Wood factor $ 4,232.50 60 Govt. Printer. Old. JUDGMENT 8 10 20 30 40 50 60 -- 8 of 9 -- 20992 klj (Derrington J} , . 1 $186,060.50 ess workers compensation papers $ 13-, 899. 44 10 10 OTAL $172,161.06 n respect of costs the plaintiff should not have his costs of roving his case for liability at the trial and consequently 20 he should be entitled to only half of his costs of the action. 2 () ! '~ ~here is judgment for the plaintiff in the sum of $172,161,06 I nd one half of his costs of the action to be taxed. 0 30 30 () 40 40 0 50 50 60 60 Gov1. Printer. Old. JUDGMENT 9 -- 9 of 9 --