Broadhurst v Hunter Douglas Ltd [1990] QSC 229

10 20 30 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION No. 647 of 1988 BEFORE MR. JUSTICE THOMAS REVISED COPi.ES .ISSUED 1 So 90/c:2,tiCf 1 Court Reporting Bureau I BRISBANE, 25 JULY 1990 L::.t:~i_L,.~---J 10 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: RONALD BROADHURST -and- HUNTER DOUGLAS LTD JUDGMENT Plaintiff Defendant HIS HONOUR: There will be judgment for the plaintiff for $135,308.48 with costs including reserved. costs, if any, to be taxed. I publish my reasons. 20 30 40 40 50 50 60 60 -Go~t. Printer, Qld. 1 -- 1 of 14 -- IN THE SUPREME COURT OF QUEENSLAND Before Mr. Justice Thomas BETWEEN: RONALD BROADHURST HUNTER DOUGLAS LTD. REASONS FOR JUDGMENT - THOMAS J. C No. 647 of 1988 Plaintiff Defendant Delivered the 25th day of July, 1990. CATCHWORDS: Negligence - breach of statutory duty - apportionment - quantum. Counsel: M. Forde for Plaintiff W. Campbell for Defendant Solicitors: Anderssen & Co. for Plaintiff Heiser, Bayly & Mortensen for Defendant Hearing dates: 12th and 13th July, 1990 -- 2 of 14 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: RONALD BROADHURST HUNTER DOUGLAS LTD. REASONS FOR JUDGMENT - THOMAS J. No. 647 of 1988 Plaintiff Defendant Delivered the 25th day of July, 1990. The plaintiff was injured in the course of his employment on 4th June, 1986 when his left arm was drawn into the rollers of a painting machine. The plaintiff was then 23 years old and had been employed by the defendant for about five months. The machine in question was known as a coil coating machine designed for the enamel painting of long metal strips. In essential respects it was a printing machine which enabled paint to be transferred to the continuous metal strip by means inter alia of two upper exposed rollers, one of which was positioned in a trough containing paint. The task which the plaintiff was asked to do can best be understood by reference to photograph II which is part of ex. 1. This is the "output" side of the machine and the metal strip comes out over the top of roller F. Roller G (with which roller Fis in contact) rotates in the paint trough, and transfers paint to roller F which in turn transfers it onto the strip. Roller Fis mechanically driven so that it runs against the direction -- 3 of 14 -- 2 of travel of the metal strip which is drawn out by other mechanical means. Thus rollers F and G, which are always exposed rotate in an outwards direction. There is therefore no external nip point, and no danger of objects or employees being drawn into those rollers. Those rollers are not absorbent. When excess paint appeared on them employees would clean them whilst the machine was running by holding a solvent soaked rag against the relevant moving roller which would tend to thrust the rag back towards the worker. The plaintiff's injury was sustained with respect to the large lower rollers which are shown in the photograph. These are normally covered by a drip tray but the plaintiff had removed it on the occasion in question. Unfortunately these rollers are inward moving. They are probably of 15 to 18 inches in diameter, and when operating move at 55 yards per minute. Usually the process involved the automatic feeding and drainage of paint which was pumped from a room below and drained through an outlet. However the exercise in this instance was unusual, and was referred to as "a short run". A strip of only 600 metres was required to be painted and instead of mounting the full automatic operation which would eventually require more substantial cleaning up, a decision was taken to do it "manually". Precisely who made that decision is not known, but the plaintiff was eventually asked to do it by Brett Thomas, an experienced hand who had been employed by the defendant for five years. He erroneously assumed that the plaintiff had done a short run before. He told the plaintiff very little about the method by which this was normally done, and simply supplied him -- 4 of 14 -- 3 with a large bucket ( probably about three or four gallons) containing paint, a jug with which to pour it into the trough, and told him to use the bucket to catch the excess and tip it back into the trough when necessary. The bucket can be seen in the photograph. So too can the first part of the drainage pipe (attached to the trough) which would normally take the overflow paint back downstairs. Photograph III shows the drainage pipe and the drip tray in the position as it was when Mr. Thomas asked him to do this job. Usually a hose is connected to the drainage pipe, but on this day it had been disconnected for the manual run, exposing the short drainage pipe visible in the photograph from which the plaintiff was supposed to catch the excess in a bucket. The drip tray covered the lower rollers and therefore acted as a guard, although the plaintiff was never specifically instructed that it served such a dual purpose. When the plaintiff attempted to line up the bucket with the overflow pipe he found that the drip tray was in the way, and the bucket would not fit. There was in fact available somewhere a short length of hose which could be fastened to the end of the short overflow pipe which could have been used to drain the paint into the bucket which could then be placed on the floor, but the plaintiff was not told of this. On some occasions Mr. Thomas had avoided the problem simply by stuffing some rag into the opening, thereby avoiding any overflow, but he did not mention this to the plaintiff. Having been told to catch the excess in the bucket, and having found that the bucket would not fit, the plaintiff removed the drip tray, and this allowed him sufficient room to use the -- 5 of 14 -- 4 bucket to catch the paint. It is probable that there was insufficient paint in the top trough for a period, because some "ghosting" started to appear on the painted strip. I accept that the plaintiff called Mr. Thomas on the intercom and told him he had a problem, that Mr. Thomas came to the room and helped fill up the trough and told the plaintiff to keep it topped up. Mr. Thomas did not know whether the drip tray had been removed or not by that stage, and the plaintiff did not recall that particular incident. At all events, in the course of performing this task, and at some time after he had removed the drip tray, some paint dripped onto the outer section of the bottom roilers. It probably dripped from the outer edge of the upper rollers and trough, and there was a tendency for such paint then to spread inwards along the bottom rollers unless it were removed. The plaintiff had been instructed that paint must not drip onto the rollers. He attempted to wipe off the excess paint from one of the bottom rollers, without realising they were inward moving rollers. His right arm was caught, and it would seem that instinctively he braced his left arm to extricate his right. However his left arm was drawn through the rollers right up to the shoulder and chest before the metal snapped and the machine stopped. The stop switch was a long way out of reach from this part of the machine. Quite simply the plaintiff was not adequately instructed in relation to how to carry out a short run. It was a special task and required special instruction and/or supervision. It is no sufficient answer to say that there was an intercom and that the plaintiff could have asked for more assistance or advice. The -- 6 of 14 -- 5 plaintiff was quite inexperienced with respect to this type of operation. The drip tray was held in position only by gravity, and although it was fairly awkward for one man to remove, it was not mechanically affixed. It did not amount to a guard which could only be removed by a tool. There is no "interlocking" system such that when the guard was removed the machinery would stop. The plaintiff had not been instructed that the drip tray served the dual purpose of tray and a guard for the lower rollers. There is also an unfortunate circumstance that the familiarity of employees with the outward rolling upper rollers, which they could manually clean whilst in operation, would create a false sense of security in relation to the lower rollers if they were exposed. There would be a tendency to assume that what could be done with one pair of rollers could be done with the other. I have no doubt that through a lack of adequate instruction, combined with the details of this particular machine and operation the plaintiff was unreasonably exposed to a risk of injury and that the defendant was guilty of negligence that led to the plaintiff's injury. I have greater difficulty in determining questions of breach of statutory duty, as to which submissions were made on behalf of both plaintiff and defendant. Whilst it cannot be said that the defendant failed to provide a guard over these lower rollers it is arguable that the relevant transmission machinery was not "securely fenced" under s. 21 ( 1) (a) and 21 ( 1) (b) of the Inspection of Machinery Act 1951-1979. Furthermore a very high onus is placed upon an employer bys. 21(1)(g) which requires the -- 7 of 14 -- 6 employer constantly to keep in position a guard while the machine is in motion, except for necessary exposure for examination, lubrication or adjustment. Furthermore s. 21(1)(h) obliges the employer to cause machinery to be so arranged that when the machinery is unguarded for examination, lubrication, repair or other purpose, no part of the machinery can be set in motion. It seems to me that the employer was in breach of these requirements, and a report from Mr. McDonald indicates that such requirements could have been entirely satisfied by relatively inexpensive adjustments and additional guarding of the machine. At the same time, it would seem that the plaintiff himself was in breach of s. 23(2) of the Act which even obliges a worker when working a machine to maintain guards in position. The plaintiff's counsel referred to certain regulations made under the Inspection of Machinery Acts including regulation 10(3)(c) which states as follows:- "All guards shall be of robust construction, be free from sharp edges and corners, be so attached as not to be easily removed or opened without the aid of a tool, unless the covers are "interlocked" and where practicable permit the lubrication of the machine without removal of the guards." I have some difficulty in understanding what is meant by the quoted term "interlocked" which seems to have been interpreted by Mr. McDonald as a device which would stop the machine from moving if the guard were removed. Other submissions were to the effect that yellow paint should be used as a further warning when guards are removed, but I do not propose to discuss all these matters further. In the end. I think that breaches of statutory duty would have to be found -- 8 of 14 -- 7 against both defendant and plaintiff under the very extensive obligations that are cast by the Inspection of Machinery Acts and the regulations made thereunder. But at the end of the day I am not greatly assisted by these findings on the determination of relevant fault causing or contributing to the plaintiff's injury. I of course accept the Act and regulations as indicating a level of the duty expected on the part of employers and employees in relation to the use of transmission machinery. I have already indicated why I consider the employer was guilty of negligence. I have had some difficulty in determining whether a finding of contributory negligence ought to be made against the plaintiff. Having removed the tray and having exposed the rollers, they were visibly moving, and had the plaintiff looked, it would have been readily apparent that they were moving inwards. A surface movement of 55 yards per minute (about three feet per second) was readily detectable to the naked eye, and a thoughtful glance would reveal a highly dangerous object to touch. It was the plaintiff who exposed the danger. absorbed I take into account in his favour that he was obviously in his task. I also think it an important factor operating in his favour that he had in effect been conditioned to thinking that he could clean a roller by applying a rag to it, having regard to the common practice of wiping the upper rollers whilst they were in motion. This means that once the bottom rollers were exposed, a highly dangerous situation would exist and that this would be compounded by the absence of adequate instruction. It is not a case of an experienced worker taking a calculated risk. -- 9 of 14 -- 8 Having regard to the fact that the plaintiff removed the guard which exposed the danger and that the ordinary duty to take care of one's self should have led to some caution, and to the visible danger, I think that there should be a finding of contributory negligence, but that it is nowhere near as significant as the breaches of duty on the part of the employer. I would apportion liability as to 90 per cent against the employer and 10 per cent against the employee. The plaintiff who was then a 23 year old metal trades worker lost his left arm in the accident. In fact his shoulder and part of his chest also suffered crushing injuries and the amputation involved a substantial part of his shoulder. This is quite visible, and it must be regarded as a serious and aggravated case of amputation. I accept the plaintiff as a candid person who tended to understate his suffering, and who has made a courageous return to the workforce. Although educated only to grade nine the plaintiff had an impressive work history during the nine years preceding the accident. It commenced with work as an apprentice chef for 12 months followed by various jobs including storeman, factory hand and various forms of manual labour. His work with the defendant was about to terminate, as the defendant was closing down its Brisbane operation. The plaintiff had intended to take a holiday for a few weeks before obtaining further employment. However his attitude to work persuades me that he would probably have been substan°tially employed throughout his working life. Testing shows him to be of average intelligence and of superior memory. Despite his disability, (and possibly partly because of -- 10 of 14 -- 9 it), he is highly motivated to work and has managed to obtain and hold another job. This occurred in October 1988 when Plastic Engineering gave him a two month trial in a clerical position. He satisfied the test and still holds the job. His employer (Mr. McGuinness) is appreciative of the plaintiff's qualities, but rightly mentions that there has been a downturn in business since Christmas and that if any staff member has to go it is likely to be the plaintiff. Mr. McGuinness used to do his own clerical work and employed the plaintiff so that he (Mr. McGuinness) could participate more fully in floor production. If able-bodied the plaintiff could, when not fully employed clerically, assist in processing work, but this is out of the question. I think that the plaintiff's position is fully realised by Mr. McGuinness and that he has reasonable prospects of maintaining his employment but that there is more than usual jeopardy in it. If he lost this particular job there would be considerable difficulty and at least substantial delay in obtaining another. It is possible that he might have to undertake further courses or rehabilitation which might take from three to twelve months and cost between $7,000.00 and $10,000.00. Even then he will have his obvious physical disability which even restricts his clerical efficiency (e.g. typing and general office movements). It should be noted that the plaintiff's right arm was also injured in this incident and has left him with a deep laceration in the forearm with a scar area which is vulnerable and easily damaged. His left arm injury required numerous operations including plastic surgery. He has endured considerable pain -- 11 of 14 -- 10 including significant phantom pains. His physical privations have been greater than most other amputation cases of which I have had knowledge. Cosmetically he has lost more than his left arm and he is sensitive in relation to his appearance and avoids social contact and most of the physical activities (including swimming and sports) in which he previously engaged. In time he will probably come to terms more effectively with his situation and start to go out again, but his lifestyle has so far tended to change for the worse and he restricts himself socially to an undue extent. I assess damages for pain, suffering and loss of amenities of life at $80,000.00. If he had remained fully employed with the defendant, or in an equivalent position, his net earnings up to the time of trial would have been about $62,500.00. His actual earnings have been about $30,500.00, and it is common ground that $8,291.00 unemployment benefits must be deducted from these damages. Thus the starting point in assessing pre-trial economic loss is about $23,800.00 (see ex. 19). Having regard to his abilities and character and to the fact that he had reached the age of 23 I think that there were positive contingencies as well as negative ones with respect to the period after June 1986. I shall therefore make only a minor deduction in the assessment of past economic loss and will assess those damages at $22,000.00. So far as the future is concerned, the present level of earnings for a worker performing process work of the kind he performed in 1986 would be about $334.00 net per week. -- 12 of 14 -- 1 1 His present earnings are $327. 00 net per week. His current loss is greater than it seems at first glance, because he is unable to participate in physical work, and this deprives him of overtime which is available to others employed by Mr. McGuinness. Further, having regard to his aptitude and application I do not think that his earning capacity should be rated as or confined to that which he would have earned as a process worker. It is very difficult to quantify future economic loss, as so much will depend upon how long he is able to hold his present position. Obviously he is a very vulnerable commodity in the labour market and substantial periods of unemployment are to be expected sooner or later. Even when employed his efficiency, prospects of promotion, overtime and versatility will still adversely be affected. On a daily basis he will have to try harder than other employees. For purely illustrative purposes I mention that a loss of $100.00 per week assessed over a period of 30 years (which would take this plaintiff only to age 57) would on the five per cent tables be represented by a present award of $82,200.00. I assess damages for future economic loss at $80,000.00. A small Griffiths v. Kerkemeyer claim was advanced with respect to a six month period when his sister helped him daily with bandages and dressings for a period of between half and one hour. It was I think a sufficient contribution to justify an award of this kind, although I do not think that commercial rates ought to be applied to the particular service. I shall allow $1,000.00. -- 13 of 14 -- 12 The award may be summarised - Damages for pain, suffering and loss of amenities Past economic loss Future economic loss Griffiths v. Kerkemeyer Special damages repayable to Workers' Compensation Board Fox v. Wood damages $ 80,000.00 $ 22,000.00 $ 80,000.00 $ 1,000.00 $ 494.00 $ 1,668.27 Interest should be allowed for 4 1 / 12 years on $25,000.00 of the damages for pain, suffering and loss of amenities, and upon $13,000.00 of the past economic loss assessment, having brought into account the weekly compensation which the plaintiff received during that period. This comes to $9,310.00. The total of damages and interest comes to $194,472.27. This must be reduced by 10 per cent for contributory negligence. This leaves $175,025.04. From this there must be deducted $39,716.20 for moneys paid by the Workers' Compensation Board. There will be judgment for the plaintiff for $135,308.84 with costs including reserved costs if any to be taxed. -- 14 of 14 --