Burgess v Kerwin [1992] QSC 303

State Reporting Bureau m, ________________________________________________________________ _ n _- ... · .. ( ' ( 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.) '" ~ ,--·--:·"~ "-; ,...::..---~L J. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J . ';< No 488 of 1989 COLIN BRUCE BURGESS and PATRICK MICHAEL KERWIN BRISBANE .• DATE 27/08/92 .. JUDGMENT 27 j F/~v Plaintiff Defendant 1 . · .. -~ -- 1 of 16 -- o:- -.t"'·• 270892 HIS HONOUR: In this matter there will be judgment for the plaintiff. I have apportioned liability 50/50. 'l'otal dama9es prior to apportiorunent are $120,935.62. After apportionment and taking into account the sllin of $39,168.76 refundable to the Workers' Compensation Board, I 10 give judgment for the plaintiff in the sum of $21,299.05. The defendant is ordered to pay the plaintiff's costs to be taxed. If there is any argument as to the basis of payment, I will. hear the parties on that. \'. I publish my reasons. The order that I will make in respect of costs will be th.a.t costs incurred up to and including 1 January 1991 be paid on the Supreme Court scale. Thereafter, I order that the costs be paid according to the appropriate District court scale. JUDGMENT 2 20 30 40 50 60 l -- 2 of 16 -- . IN THE SUPREME COURT OF QUEENSLAND No. 488 of 1989 BETWEEN: COLIN BRUCE BURGESS Plaintiff AND: PATRICK MICHAEL KERWIN Defendant ( \ JUDGMENT - MACKENZIE J. Delivered the 27th day of August, 1992 CATCHWORDS Counsel: D. North for Plaintiff R. Stenson for Defendant Solicitors: Darvall & Darvall for Plaintiff O'Shea Corser and Wadley for Defendant Hearing Dates: 23-24 July, 1992. -- 3 of 16 -- () IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: No. 488 of 1989 COLIN BRUCE BURGESS Plaintiff PATRICK MICHAEL KERWIN Defendant JUDGMENT - MACKENZIE J. Delivered the 27th day of August, 1992 On the 27th July, 1987 the plaintiff, while felling timber as an employee of the defendant, suffered a broken arm when trying to avoid a falling tree. He sues the defendant for breach of contract and/or negligence. The live issues at. the trial were whether the defendant had failed to instruct the plaintiff, or adequately instruct him, in the safe method of performing his duties and failed to provide the plaintiff with any adequate supervision in the performance of his duties. The tree in question was situated on what might be called a very small ridge. Apart from a fairly steep downward slope, the land also fell away quite steeply to the sides at the location of the tree. The plaintiff by looking at the canopy of the tree, (which was accepted as the practical method of operation), had decided that it would fall downhill when cut. Accordingly he made a scarf or belly cut in the tree on the downhill side and proceeded to then make a main or back cut on the uphill side. According to his evidence in chief, when he did -- 4 of 16 -- 2 that the tree started to lean in the direction that he wanted it to fall but the wind gusted and caused it to lean back in the opposite direction. He said he had managed to get his saw out in time after which he came around to the downhill side of the tree which started falling in the uphill direction. He said that the tree at the same time slid downhill as well and as he ran away he tripped over a little stump some five or six feet from the base of the tree, lost balance and stumbled down the hill until he fell, breaking his arm. The steps taken to fell the tree as described in his evidence in chief varied from what he had said in his answers to 0 interrogatories and from the physical evidence apparent on the () stump. In one of his answers to interrogatories he said that, in addition to the scarf and the cut at the back of the tree, he administered a cut (referred to as a plunge cut) from the side of the tree. Mr. Geoffrey McDonald, a civil engineer, was allowed to give evidence of the physics involved in falling trees. His basic thesis was that it was important for the back cut not to extend so far into the tree that it met the scarf cut. u This accords with an Australian Standard and recommended industry 0 practices. The reason for this was that it was important to leave a small thickness of timber between the two cuts which would act as a hinge to control the fall of the tree. He expressed the view that on the physical evidence of the stump there was no substantial hinge left on this occasion. There was also evidence in photographs of two other stumps which, it was said, displayed the same faulty technique. -- 5 of 16 -- 3 The evidence of at least one additional cut to the relevant tree is a complicating factor. The defendant could not suggest any reason why that would have been necessary. Initially Mr. McDonald expressed the view that the bottom cut of the scarf had penetrated beyond the location of the plunge cut. He expressed the view that as the back cut had apparently come in to a position where it would have intersected the scarf, the tree would have been freestanding on the stump, without any ( \~ubstantial hinge of timber remaining. However he agreed in cross-examination that the physical evidence was also consistent with the horizontal cut of the scarf being extended beyond its ( ) original location and the plunge cut then being executed from the side. If that was the case, the effect would have been to remove any hinge that had been in existence and once again the tree would have become freestanding upon the stump. The plaintiff gave evidence that he did not remember having done the plunge 1 cut. \ He said that he had done it on other trees but did not recall doing it to the relevant one. Upon being shown the photographs he agreed that somebody had done a plunge cut upon ( it. He was referred to his answers to interrogatories in which he said that the sequence of events was that he had made the scarf, then the back cut and then a side cut. He said that that sequence of events was wrong and that if he did a plunge cut it would be done before the back cut for the purpose of removing the scarf fully from the tree. Contrary to what he said in his interrogatories there was also evidence that he had used a wedge in the back cut. He said that, although he could not remember the event, that may have -- 6 of 16 -- 4 been because his saw had jammed when the tree moved in the uphill direction and that he had inserted the wedge for the purpose of enabling him to remove his saw. I should also mention that there was a dispute in evidence as to the nature of the conversation that had been had between the plaintiff and the defendant about the tree. It was put to the plaintiff in cross-examination that the defendant had told him to leave the tree alone. The plaintiff's recollection was that there was some discussion about it being handy for a "top log". The significance of that is that it would form the top log on a load because of its relatively small size. In his evidence the defendant did not suggest that he had given instructions to the plaintiff not to fell the particular tree. However he said he remembered considering the tree to be in a bad position and suggested to the plaintiff that it did not appear to be a good tree. The position was, in my view, that the plaintiff was neither forbidden nor directed to cut the tree and that it was a case where the plaintiff may well have formed the impression that the tree was worth cutting. The defendant agreed with the proposition that the plaintiff may have been left with that impression after their conversation. It will be seen from what I have said that the plaintiff's evidence is rather unsatisfactory on the issue of what actually happened on the day in question. Mr. Stenson did not submit that the plaintiff was deliberately untruthful, but relied on the objective evidence to support the proposition that there was not the degree of emergency suggested by the plaintiff and that it was the failure of the plaintiff to ensure that he had a clear 0 0 0 0 -- 7 of 16 -- 5 route to safety that led to his injury. The plaintiff is functionally illiterate. He gave evidence that he had achieved a very low level of education and had worked in various rural jobs of a labouring type especially in the Boonah area since he left school. There is no reason to doubt that he falls within the lower ranges of intellectual capabilities. I have made some allowance for this in considering the evidence given by him. The plaintiff's case rested upon the proposition that he had (~)a demonstrated defective timber cutting technique and that it was therefore incumbent upon the defendant, who had observed this, to instruct him properly in how to fell trees. This proposition ( \ \ has to be viewed against the background that the plaintiff gave evidence of over 30 years' experience in falling trees, that he had been employed on the basis that he was experienced and his agreement with the proposition tha~ he would be surprised at any suggestion that someone should tell him that the way he cut trees was wrong. The effect of the defendant's evidence was that he had observed the results of the plaintiff's work. He said that he /had spoken to the plaintiff about not removing a big enough wedge of timber in the scarf, and had told him to increase its size. The words used were probably to take a bigger belly. By that he had meant that the angle of the wedge was too acute which did not allow the tree to fall cleanly. He also agreed that the photographs showed examples of the plaintiff cutting the scarf more than half way through the tree, although there were other examples in the paddock where it was not. He agreed that it was not good practice to cut more them half way through because when -- 8 of 16 -- -- - -------- ---· 6 the back cut was put in, there was -a risk that no hinge of wood would be left to control the fall of the tree. He agreed that it was technically incorrect to leave no hinge because the tree · would be left free-standing on the stump and could be pushed in any direction by the wind. He said that he had seen examples of the plaintiff leaving no hinge because he was cutting the back cut right through to the scarf. The defendant said that his concern was not that the sapwood was being damaged when the tree feel but that the plaintiff was adopting unsafe practices by cutting scarfs more than half way through the tree in some cases. He was not certain about what he had told the plaintiff to do but 0 would have used a bush term such as to cut a bigger belly. He 0 agreed that the plaintiff would not be quick to take up technical information. The evidence then proceeds:- "You would have to be very, very plain and deliberate with him to explain things to him, wouldn't you? Yes and then it was difficult. And then it was difficult to explain things to him? -- Yes. Because he is a man who is not really intelligent - over intelligent is he? He is not very quick, is he? -- No, he is not. So you would form this view that he was a person that you had to take time with to explain things to him? -- Yes. You might even have to repeat yourself, mightn't you, to explain things to him? -- Yes. To make sure he took it on board?-- That is correct." I should record, in view of the objection to Mr. McDonald's evidence, that the evidence concerning techniques of falling trees given by the defendant, who had lengthy practical experience in the industry, confirms what are proper practices. To the extent, if any, that Mr. McDonald's evidence may have 0 0 I -- 9 of 16 -- 7 strayed beyond a proper field of expertise, I would be content to rely on the defendant's evidence to the same effect. Mr. North submitted that timber felling was an inherently dangerous occupation and that it was therefore an obligation of the employer to take stringent precautions to ensure that the system of work and the practices engaged in by employees were safe (Kondis v. State Transport Commission (1984) 154 C.L.R. 672). He submitted that the evidence established that the (-)defendant had known that a hinge was not being left but had not corrected the plaintiff's technique. This was notwithstanding that he had told him to increase the size of the scarf. Mr. ( )North invited me to conclude that the instruction to increase the I \ size of the scarf may have been inadequate and ambiguous having regard to the intellectual capabilities of the plaintiff. He further submitted that as the defendant had tacitly approved the technique the plaintiff was not guilty of contributory negligence if he continued to adopt that system. Mr. Stenson submitted that the question of whether the plaintiff's technique was defective was of little moment because ~-/the effective cause of the injury to the plaintiff was his failure to ensure that he had a safe path of escape in the event that the tree fell in an unexpected direction. He further submitted that the incident did not happen in the way described initially by the plaintiff. Notwithstanding the warning that the plaintiff had had that the tree was likely to fall uphill he persisted in attempting to get it to fall downhill. It was apparent that the situation was not one of an emergency, in the sense that the tree suddenly fell in the wrong direction because -- 10 of 16 -- 8 the plaintiff had time to make at least one more cut. Further having been aware that the tree might fall uphill, he had not then checked to see that he had a safe path of escape. He pointed to the fact that the plaintiff had 32 years experience in timber cutting and submitted that it was unreal to suggest that in those circumstances the defendant was negligent in not correcting the plaintiff's technique. Ordinarily if a person who is an experienced timber worker is employed to fall trees it would in my opinion not prima facie be incumbent upon an employer to supervise him closely while he was working. In the absence of any reason to doubt his technique 0 the employer would not be negligent if he did not instruct him () in the safe method of falling trees. In the present case the evidence establishes that the defendant noticed two defects in the plaintiff's technique notwithstanding the stated length of his experience. They were that the angle of the scarf was too acute and that on some trees he was cutting right through and not leaving a hinge. In the case of the first deficiency the defendant told the plaintiff to "take a bigger piece out of the belly" or some such phrase. This involved safety considerations because the tree might not fall cleanly if the angle was too acute. The second passed without comment although the defendant agreed that it was not good practice because it affected the control of the tree when it fell. Having noticed these faults in the plaintiff's technique, in my opinion it was the duty of the defendant to take adequate steps to ensure that the practices were not persisted in. In the present case the measures should have been adequate 0 0 I -- 11 of 16 -- 9 to take account of the fact that the plaintiff is somewhat intellectually challenged. The next issue is the relation between such failure and the injury that the plaintiff suffered. It was submitted by Mr. North that I would not find that the plaintiff was guilty of contributory negligence because he was simply adopting a system that had been condoned by the defendant. On the other hand, Mr. Stenson submitted that if the defendant was negligent the (-,,)plaintiff himself was guilty of substantial contributory negligence because he had cut the tree the wrong way and had (' ~/ failed to ensure that he had a clear escape path. I find that during the process of cutting the tree a wedge was inserted in the back cut. The most probable reason for this is that as the tree was being cut and contrary to the plaintiff's expectations it leaned back in an uphill direction and jammed the saw. The wedge was inserted as part of the process of extracting the saw and should have had the incidental affect of encouraging to a slight degree at least the tree to fall downhill. While the physical evidence is inconclusive I am satisfied that the plunge ( ·~. cut was the last cut administered to the tree as the answers to interrogatories say. I am satisfied that the faulty technique of the plaintiff resulted in the tree becoming almost free standing on the stump. The plaintiff had clear indications that the tree was finely balanced and that there was a distinct possibility that it would fall in the opposite direction to the direction that he had predicted. He was aware of the difficult location of the tree and of the terrain over which he would have to go to avoid the -- 12 of 16 -- 10 risks inherent in falling trees should the tree fall uphill. Notwithstanding these indications he did not in my opinion take adequate care for his own safety. Had the uncorrected faulty technique not been used there would have been more control over the tree. However, in my opinion, notwithstanding the clear indications to which I have referred that the tree was going to fall the wrong way, the plaintiff placed himself in a situation where he had to flee down the slope rather than make a more orderly escape. While the indications were known to him for a substantial period the urgency of his final escape is demonstrated by his evidence that he threw the chainsaw down the 0 gully and followed it down at such a speed that after he had () tripped over a stump he could not regain his balance. In my opinion he is guilty of contributory negligence. I propose to apportion liability on the basis of 50 per cent to each party. I turn to the question of damages. The plaintiff was 51 years of age at the time of the accident. His intellectual capacity has been referred to previously. He is unsuited to 0 anything but work with a labouring component. He has always lived in rural areas. He suffered a severe injury to his right forearm. The residual effects are restricted movement and reduced strength of grip. Medical opinion ranges from 30 to 50 per cent loss of use of the limb. He is not wholly unemployable but his capacity to work in jobs with a heavy labouring component has been destroyed. He is capable of doing work such as vegetable picking but is limited to something of the order of 8 to 15 hours per week due to his incapacity. He also agreed that he had told one of the doctors that he thought he would be -- 13 of 16 -- 11 capable of driving a bulldozer. Although he was a bachelor at the time of his injury he has since married a woman with children, one of whom is still young and dependent upon her. He gave evidence that he had no specific intention of retiring from work and that he had hoped to work for as long as he could. I turn now to damages. With respect to pain, suffering and loss of amenities both counsel submitted that an appropriate award was in the range of $30,000 to $40,000. I allow $35,000 / ',under this head. I will treat half of that sum as being for past ( pain, suffering and loss of amenities. It was accepted by both counsel that the permanent partial disability payment of $16,705 ( \ \ was of the same character as the payment discussed in Haines v. Bendall (1991) 172 C.L.R. 60 and should not be taken into account in relation to interest on the component for past economic loss. It follows from that that it should be taken into account in calculating interest on this component. After having regard to the time when it was paid I allow $625 interest on past pain \) suffering and loss of amenities. So far as past economic loss is concerned the plaintiff had ~ at the time of the accident been employed by the defendant since late 1986. He had been paid $50 per day gross as a casual rate. He was not at that time and had generally not been employed under an award rate except when he was working on the construction of dams. A schedule of earnings based on the defendant's cheque butts indicates that in the four months from the end of March, 1987 to the date of the accident he had been paid $2,350 gross which amounts to $1,966.70 net. The pattern of payments by cheque is not uniform but the majority had been paid at -- 14 of 16 -- I 12 fortnightly intervals. The plaintiff had also got casual fencing work occasionally during this period for which he said he was paid $40 per day. A schedule of economic loss based on the timber industry award amounted to $73,000 for full-time employment. However the amounts paid by the defendant do not suggest that the plaintiff worked every day and further, as I have said, he never worked under an award in that industry. There is of course a possibility that he would have obtained some kind of work involving an award had he not been injured. After taking into account the figures to which I have referred, the likelihood that his employment would be non-continuous, even if the pattern in the past that if one job finished another came CJ along was followed, and other contingencies I assess his past economic loss as $30,000. So far as interest in concerned he received net weekly Workers' Compensation payments of $17,031.04. I allow interest on the balance at six per cent for five years. Rounded off that is $3,890. Special damages were agreed in the sum of $6,192.64. That 0 includes a Fox v. Wood component. It was accepted that $759.92 ----·-.., of this would bear interest at six per cent for five years is (~J $227.98. So far as future economic loss is concerned Mr. Stenson submitted that a lump sum of the order of $40,000 was appropriate. Mr. North submitted that I should use award wages as a basis for assessing the plaintiff's loss of earning capacity. The current gross award rate is $375.70 per ~eek. He submitted that $40, 000 was too low. He illustrated this by reference to figures of approximately $41 , 000 and $62, 000 for net -- 15 of 16 -- 13 sums of $100 and $150 per week over ten years. Notwithstanding the plaintiff's evidence that he would wish to continue working for as long as he could irrespective of his age I do not think that I should allow more than seven years future working life. This has to be discounted for the risk of the onset of limitations in his capacity to do hard manual work and for the substantial risk of work not being continuous or for a full working week. Having regard to all of these factors I have 1 concluded that $45,000 is a realistic sum after discounting. Total damages assessed are $120,935.62. After· apportionment and taking into account the sum of $39, 168.76 \ refundable to the Workers' Compensation Board, I give judgment for the plaintiff in the sum of $21,299.05. The defendant is ordered to pay the plaintiff's costs to be taxed. If there is any argument as to the basis of payment I will hear the parties. \ -- 16 of 16 --