Crooks v Fitzgerald[2002] QCA 307

SUPREME COURT OF QUEENSLAND

1. McPHERSON JA:  I agree with the reasons of White J for dismissing this appeal.

2. The real problem confronting the plaintiff in this unhappy matter is that the evidence fails to identify the reason why the grinding wheel disintegrated. Unlike the remainder of this item of equipment, the grinding wheel was new, and there is no reason to think it was not bought from a reputable supplier. One may guess that there may have been a defect in the grinder, which was old, to which the wheel was fitted; but that is no more than conjecture and does not amount to proof of the cause of the ensuing event and injury to the plaintiff.

3. Not without some regret, I therefore conclude that the learned trial judge was correct in giving judgment for the defendant.

4. WHITE J:  The appellant who was the plaintiff below claimed damages for personal injury which he suffered when the grinding wheel of an angle grinder disintegrated.  The grinder was being used by the respondent at his home and the appellant was assisting him.  The action was brought against the respondent as occupier of the premises but the act complained of concerned the respondent only and not the condition of the place where the injury was sustained.

5. His Honour dismissed the appellant’s claim but, as is usual in these matters, assessed the quantum of the claim. The appeal as instituted was in respect of both liability and quantum. At the commencement of the appeal Mr Grant-Taylor SC, for the appellant, abandoned the appeal so far as it related to quantum.

6. The issue for determination on appeal, as it was for the learned trial judge, is a narrow one. In essence it is whether injury to the appellant who was watching the respondent use the grinder and who was some distance away was reasonably foreseeable.

7. The angle grinder which the respondent had acquired at a garage sale was deficient in a number of respects – it had no guard fitted and more than likely had a frayed electrical cord. The respondent argued successfully below that whilst injury to an operator of the grinder due to its safety shortcomings was reasonably foreseeable, injury to a, relatively speaking, distant bystander was not.

8. The appellant relies on a passage in Chapman v Hearse (1961) 106 CLR 112 at 120-1 to show that the learned trial judge erred in confining what was reasonably foreseeable too narrowly:

“But one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant’s carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable…. It would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of.”

9. The appellant was a carpenter by trade and was aged 32 when these events occurred in October 1999. He and his family were acquaintances of the respondent and lived in the same area. As a result of a conversation which took place at a social function either the respondent requested, or, after hearing of his problems the appellant offered assistance to remove rust and re-weld the bottom of a box trailer which was at his home. The appellant arrived at the respondent’s home on the morning of Sunday, 24 October.  There are immaterial differences in the accounts of the appellant and the respondent which it is unnecessary to explore.  His Honour found and it is not contested that the appellant, being in the building trade, had more experience with tools such as an angle grinder than had the respondent.

10. When the respondent bought the grinder at a garage sale it had no safety guard fitted and he never acquired one. This was the respondent’s second job with this grinder. He had previously cut steel to remake a boat trailer. He wore out the nine inch cutting disc and purchased a new one from a local hardware store. He inserted this new disc into the grinder on the morning of the appellant’s injury.

11. When the appellant saw the tool that was to be used on the box trailer he expressed the view to the respondent that it looked “pretty dodgy”. He described it as a “shabby sort of grinder”. He noted that it had no guard and that the cord “looked a bit frail” by which he presumably meant “frayed”. The appellant explained its deficiencies to the respondent:

““Well, if you’re going to be using it, it’s not safe to start with as far as there was no guard on the blade, the handle’s on top.”  I said, “If the handle had been” – if it gets away or anything happens to it, you’ve only got the top of your hand to stop the side swing, you usually have it on the side so any kickback or anything does – if it kicks back then the elbow more or less takes the pressure off it, or restricts it to a certain degree.  So they had that, and I said, “Well, that looks pretty dodgy”, so I said, “I’ve got a power saw at home, a nine and quarter inch Makita power saw and I can go home and grab that which would be a lot safer to use than what youse have more or less got there.”” R12

The respondent accepted that the appellant said it was not safe to use the grinder but understood his concern to be for the operator

“because it was so low to the ground you were over the top of it and with the sparks flicking everywhere …” R69

12. After about ten minutes the appellant returned with his power saw. The respondent had started cutting down one side of the trailer with the grinder. The appellant said that they should use the power saw instead and the respondent put away the grinder. The appellant started using the power saw but the problem was that it got very hot and the work had to stop to allow it to cool. While the power saw was cooling the appellant left to speak to his wife who was waiting outside in the street in their car as they had a family activity to attend. He told the respondent that he would be about five or ten minutes but returned in a minute or so to where the trailer was being worked on.

13. The appellant found the respondent again working on the trailer, this time with the angle grinder. The appellant positioned himself on the other side of the trailer about five metres away from the respondent. A bang was heard, the cutting disc disintegrated and fragments hit the appellant in his left ankle severing a tendon and causing him to collapse to the ground.

14. The appellant’s case was that this grinder was not safe to use and injury to a bystander positioned where the appellant was, was reasonably foreseeable. Neither the grinder nor any fragments of the disc were produced at the trial nor was there any expert evidence about the likely cause of the disintegration of the disc. There was no evidence as to whether there was a defect in the angle grinder itself, in the manufacturing process of the newly purchased disc or whether the way in which the disc was fitted to the angle grinder by the admittedly inexperienced respondent was the cause or a contributing cause of the disintegration. The learned trial judge found that the respondent was under an obligation to take reasonable care to avoid foreseeable risk of injury to the appellant, Jones v Bartlett (2000) 205 CLR 166, per Gleeson CJ at 185 and Gummow and Hayne JJ at 215-216, but the evidence did not found a conclusion that there was any element of risk to someone who took up the position of the appellant – a bystander some five metres distant from the action.

15. The appellant accepts the learned trial judge’s conclusion that even had the grinder been fitted with a safety shield or guard that would not have protected him from injury. His Honour accepted the respondent’s evidence that he thought that the appellant’s reservations about the use of the grinder related to concern for the safety of the operator as distinct from a bystander but clearly recognised that the test is whether, in all the circumstances, it was objectively reasonable to confine the risk of injury to the operator of this angle grinder.

16. The issue then is whether his Honour described the range of foreseeable victims too narrowly when concluding that the respondent had not breached the duty of care which he owed to the appellant. Mr Grant-Taylor SC referred to passages in Hughes v Lord Advocate [1963] AC 837 to support the submission that it was too fine a distinction to draw between injury to an operator and injury to a bystander.

17. In Hughes paraffin in a warning lamp, outside a tarpaulin covering a manhole left by workmen, exploded rather than burnt, as might have been expected, when it was knocked over and a young boy exploring the works was seriously injured.  The court found that the distinction between burning and explosion as a foreseeable risk was too fine to warrant acceptance.  Lord Jenkins observed at 850:

“It is true that the duty of care expected in cases of this sort is confined to reasonably foreseeable dangers, but it does not necessarily follow that liability is escaped because the danger actually materialising is not identical with the danger reasonably foreseen and guarded against.  Each case much depends on its own particular facts.”

Lord Morris said at 853 that liability was not avoided because, quoting Lord Macintosh’s phrase in Harvey v Singer Manufacturing Co. Ltd [1960] SC 155 at 172, “the precise concatenation of circumstances” which led to the accident was not envisaged.

18. In H v Pennell and The State of South Australia (1987) 46 SASR 158, a pupil was whipping a car radio aerial consisting of three telescopic segments forward to its full extent in a crowded playground during the lunch break.  The top section detached, flew about 10 metres and penetrated the skull of a fellow pupil, inflicting a severe brain wound.  The known characteristics of the aerial suggested that the end piece would not become detached and the boy had flicked it twice previously without mishap.  The Full Court (King CJ, White and Olsson JJ) concluded that it was reasonably foreseeable and there was a real risk that other types of injury might be sustained by students in the vicinity of the boy’s activities, such as the aerial leaving his hand.  White J said at 161:

“It is not necessary that the injury actually inflicted on the plaintiff should be foreseeable so long as the infliction of some injury of the same kind is readily foreseeable (Hughes v The Lord Advocate...) to any member of the endangered class:  (Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 at 47 per Mason J …”.

Bystanders within a radius of at least ten metres were the very class of people at risk from the boy’s conduct.

19. As these cases relied on by the appellant show, the principles can only be understood and given meaning in the context of the circumstances under consideration.

20. Here there was a real risk of injury to the operator of the angle grinder because of its want of a safety guard, the want of provision of protective glasses, or perhaps from the frayed condition of the electrical cord. Nothing in the dilapidated state of the grinder would direct attention to the risk of injury to a bystander. Such a consequence would not be far-fetched or fanciful but, as Hayne J observed in Romeo v Conservation Commission of the Northern Territory (1997-98) 192 CLR 431 at 488:

“… the bare fact that the risk of the injury which in fact occurred was reasonably foreseeable (in the sense of not far-fetched or fanciful) does not conclude the inquiry about the scope of the Commission’s duty. (Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48, per Mason J).  The duty is a duty to take reasonable care, not a duty to prevent any and all reasonable foreseeable injuries.

The fact that an accident has happened and injury has been sustained will often be the most eloquent demonstration that the possibility of its occurrence was not far-fetched or fanciful.  Indeed, often it will be difficult, if not impossible, to demonstrate the contrary to a tribunal of fact.  That is why it is of the first importance to bear steadily in mind that the duty is not that of an insurer but a duty to act reasonably.”