Meechan v Savco Earthmoving Pty Ltd
[2021] QCA 264
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- Notable Unreported Decision
- Meechan v Savco Earthmoving Pty Ltd[2021] QCA 264
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Meechan v Savco Earthmoving Pty Ltd[2021] QCA 264
Meechan v Savco Earthmoving Pty Ltd[2021] QCA 264
SUPREME COURT OF QUEENSLAND
CITATION: | Meechan v Savco Earthmoving Pty Ltd [2021] QCA 264 |
PARTIES: | GRAYSON GEORGE MEECHAN (applicant/appellant) v SAVCO EARTHMOVING PTY LTD ACN 103 377 715 (respondent) |
FILE NO/S: | Appeal No 2458 of 2021 DC No 382 of 2019 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Civil) |
ORIGINATING COURT: | District Court at Brisbane – [2021] QDC 14 (Sheridan DCJ) |
DELIVERED ON: | 3 December 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 July 2021 |
JUDGES: | Fraser and McMurdo and Bond JJA |
ORDERS: |
|
CATCHWORDS: | TORTS – GENERALLY – NEGLIGENCE – DAMAGE AND CAUSATION – GENERALLY – where the appellant was injured whilst working as an employee for the respondent’s subcontractor – where the trial judge found the respondent to be negligent – where the trial judge found that the respondent’s negligence was not the cause of the appellant’s injury – whether the trial judge erred in concluding that the respondent’s negligence was not the cause of the appellant’s injury TORTS – GENERALLY – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where the trial judge found that the appellant’s responsibility for his injuries would have been 80 per cent – whether the appellant should bear a greater responsibility for the accident than the respondent DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – GENERALLY – where the trial judge assessed general damages to be $10,000 and did not award damages for future economic loss – whether the trial judge should have awarded further general damages to account for the prospect of developing osteoarthritis – whether there should have been an award for future economic loss Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5, applied |
COUNSEL: | R J Lynch and N I Congram for the applicant/appellant M Grant-Taylor QC, with E J Williams, for the respondent |
SOLICITORS: | Gouldson Legal for the applicant/appellant Jensen McConaghy Lawyers for the respondent |
- [1]FRASER JA: I agree with the reasons for judgment of McMurdo JA and the orders proposed by his Honour.
- [2]McMURDO JA: The appellant, Mr Meechan, was injured when working at a construction site in 2014. He was standing on the tray of a truck, assisting in the placement on the truck of some machinery, which had been lifted to the truck by an excavator owned by the respondent company, which I will call Savco.
- [3]The excavator’s boom unexpectedly swung towards Mr Meechan, striking him and knocking him from the truck to the ground, when he suffered his injury.
- [4]The excavator was operated not by one of Savco’s employees, but by a co-employee of Mr Meechan, namely Mr Harris. There was an issue at the trial about whether Savco had permitted Mr Harris to operate the excavator, but the trial judge found that he was so permitted, and there is no challenge to that finding. Nor is it in issue that Mr Harris negligently operated the excavator.
- [5]Mr Meechan claimed damages for what he said was Savco’s negligence. He did not allege that Savco was vicariously liable for the negligence of Mr Harris. This claim was that Savco was itself negligent, by allowing the excavator to be operated by someone who was not an appropriately experienced and licensed operator. On his case, he was thereby exposed to a risk of injury which eventuated.
- [6]The trial judge dismissed Mr Meechan’s claim.[1] Her Honour found that Savco was negligent as Mr Meechan alleged.[2] In her view, however, Savco’s negligence was not the cause of Mr Meechan’s injury. The accident happened, it was found, because Mr Meechan dangerously threw an object to Mr Harris, when he was in the driver’s seat of the excavator, which caused Mr Harris to move suddenly and accidentally engage the operation of the boom. The judge held that it was Mr Meechan’s throwing of this object, with little or no notice to Mr Harris, that was the cause of Mr Meechan’s injury.[3] The judge provisionally assessed damages at $39,044.69.
- [7]Mr Meechan appeals against the dismissal of his claim, and the assessment of his damages.
The accident
- [8]The employer of Mr Meechan and Mr Harris was CD Kerb and Channel (“CD”), which was a subcontractor of Savco on this site. Mr Harris was employed as the foreman, on the site, where CD used a certain machine, which had to be lifted mechanically in order for it to be moved. Its movement was usually undertaken by a crane attached to a truck owned by CD, but that could not be done because of the limited access to the place where CD’s machine was on the day in question. Mr Harris asked an employee of Savco whether it could be moved by Savco’s excavator, and the excavator was brought to where it was needed by Mr Harris.
- [9]The evidence of Mr Harris was that the Savco employee, who brought the excavator to him, asked him whether someone else could operate the excavator to move CD’s machine, because that employee had other things to do. Mr Harris said that he could operate the excavator, and that he was permitted to do so.
- [10]At the trial, Savco strongly disputed that it had permitted Mr Harris to operate its excavator. Evidence was given by witnesses from Savco, namely three members of the Savic family which owned the company, which the judge found to be of little assistance in resolving the dispute about this question.[4] The judge accepted the evidence of Mr Harris on the question, which he said had been given in a straight forward manner, with no apparent bias.[5] As I have noted, there is no challenge to that finding.
- [11]The evidence of Mr Harris was that although he volunteered that he could operate the excavator, he was not asked any information of his training or experience in that regard. In fact, Mr Harris had received no training and his experience in the operation of such an excavator was limited to about a dozen occasions when, as in this case, he had done so in particular instances.
- [12]CD’s machine was lifted by the excavator, by chains which were attached to the machine and secured in place by what is called a D shackle. That was an item, weighing about four or five kilograms, which could be held in one hand. The chains belonged with the machine and the D shackle belonged with the excavator.
- [13]Mr Meechan’s task was to remove the D shackle from the boom of the excavator, after the machine had been lowered onto the tray of the truck.
- [14]Inside the cabin of the excavator, and immediately to the left of Mr Harris as he sat, was a lever by which the operation of the boom could be disengaged. After the machine had been placed on the truck, Mr Harris had not turned off the excavator or disengaged the operation of the boom. Mr Meechan removed the D shackle, and after calling out to Mr Harris, underarmed it in his direction. Mr Harris moved to catch it, and in doing so knocked the lever which operated the boom. The boom moved quickly to its left, striking Mr Meechan and knocking him from the truck.
Negligence
- [15]As already noted, there was no issue as to the standard of Mr Harris’s operation of the excavator. It was accepted that he ought not to have allowed the boom to unexpectedly and quickly move as it did. However it was Savco’s alleged negligence, by allowing Mr Harris to operate its excavator, for which Savco was said to be liable.
- [16]The trial judge accurately summarised the pleaded case as follows:
“[58] It is pleaded on behalf of Mr Meechan, that Savco breached its duty of care by negligently failing to ensure that the excavator was exclusively operated by appropriately experienced and licenced operators, and exposing the plaintiff to a risk of injury thereby.”
- [17]The judge considered that case by reference to evidence given by Mr Alex Savic, and his sons Marc and Damien Savic, of the risks of allowing workers outside of Savco’s employ to operate its machinery. Alex Savic said that it was the policy of Savco to “definitely not” allow outside workers to operate its machinery, the first reason being “the safety aspect of it”. Mark Savic gave evidence to the same effect, adding that “[w]e don’t know if [a worker not employed by Savco] is qualified to be able to operate the machine in a safe manner [and] if they follow our standards as to how we work”.
- [18]The judge found that while Savco had a general practice of ensuring that the excavator was used only by Savco employees, on this occasion another Savco employee had allowed Mr Harris to operate the excavator.[6] Her Honour noted that there was no evidence that this permission had “involved disobedience to any instruction specifically given by Alex Savic, or that employees of Savco were instructed not to allow the excavator to be used by people who were not Savco employees or persons who demonstrably had a [licence] to operate the excavator”.[7] The judge then reasoned as follows:
“[62] The events occurred in circumstances where, on their own evidence, Alex Savic and his sons were aware of the risks attendant to inexperienced persons using the excavator. They also occurred in circumstances where the director of Savco had authorised the use of the excavator to move the kerb machine. In my view, the absence of any instructions involved a failure to exercise reasonable care to avoid unnecessary risk of injury.”
- [19]By a Notice of Contention, Savco challenges the finding that it was negligent.
- [20]Savco concedes that, as the principal contractor on the work site, it owed Mr Meechan a duty of care of the kind described by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd,[8] where his Honour said:
“An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk (Sutherland Shire Council v. Heyman [(1985) 157 CLR 424, at p. 479]) and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.”
- [21]It is submitted for Savco that it could not have been in breach of that duty of care by allowing Mr Harris to operate the excavator, because Mr Harris was competent to do so. Mr Harris held no licence which was relevant to the operation of this equipment, but there was evidence from Alex and Damien Savic that there was no specific licence applicable to the excavator in question. The argument also relies upon evidence given by Mr Harris.
- [22]Mr Harris gave evidence, in Mr Meechan’s case, that he had operated an excavator of this kind “over a dozen times” prior to this event. But when asked by the cross-examiner whether Mr Harris had become “quite acquainted with the machines?”, he said:
“I know how to use them to a degree. I wouldn’t class myself as an operator.”
- [23]The cross-examination continued:
“But you could operate them?--- Yeah, I can operate them.
You can move them?--- I can move them.
You could move the bucket from side to side?--- Yep.
You could fix something up if you needed to?---Yep.
Drive it off the premises if you so wished?---Yep.
…
Can I assume you knew how to engaged and disengage the controls?--- Yep. That’s correct.
You’d call yourself competent?--- I guess so. I wouldn’t hop in one if I didn’t feel competent, I guess.”
- [24]The evidence of Mr Harris thereby established that he had some experience and, to an extent, some competence in moving such an excavator. However he had received no training, and he expressed the limitations upon his competence by saying that he would not class himself as an operator. It was one thing for Mr Harris to know how to move the excavator; it was another thing to say that he was sufficiently experienced and competent to do so safely, according to a standard which would be reasonably expected of a person employed to operate such a machine.
- [25]Alex Savic gave evidence of how an experienced and competent operator would control the machine in circumstances which confronted Mr Harris. He gave this evidence:
“Perhaps if I asked it this way, your Honour: would you agree, Mr Savic, that a competent operator would ensure, whilst there was a person in the vicinity of the boom, for example, D shackling a load, a confident operator would ensure that there was no possibility of movement of the boom?---That’s correct.
And in a situation where you were contemplating someone using one of your excavators, say in circumstances where it was a new employee, someone you weren’t familiar with. Can I ask you to contemplate that situation?---Well, a new employee would not be allowed to have someone [indistinct] D shackle or would [not] be allowed to lift anything.
Right. So what I’m suggesting to you is that it would be prudent for you as that – as the employer of that new employee to satisfy yourself they were competent to operate the excavator before you allowed them to do so?---That is correct.
Indeed, irrespective of whether they claim to have had sufficient experience to do so; you would agree?---That’s correct, yes.”
- [26]Earlier I have set out the judge’s summary of Mr Meechan’s pleaded case, which was that Savco had breached its duty of care by failing to ensure that the excavator was operated only by an appropriately experienced and licenced operator. The qualification that the operator be licensed may be put on one side. The case was that Mr Harris was not appropriately experienced as an operator and that this exposed Mr Meechan to a risk of injury. The fact that Mr Harris had some competence in the operation of such a machine did not provide a complete answer to Mr Meechan’s case.
- [27]Mr Harris was permitted to use the excavator simply on his saying that he was able to do so. As the evidence of Alex Savic established, that did not provide a reasonable basis for Savco to be satisfied that the excavator could be operated safely in the hands of Mr Harris. Savco failed to use reasonable care to avoid an unnecessary risk of injury, coming from the excavator being operated by someone who was not sufficiently experienced and trained to do so. The trial judge was correct to find that Savco breached its duty of care to Mr Meechan.
Causation
- [28]The trial judge concisely recorded the submissions for Mr Meechan on this question, referring to the well-known dictum of Gaudron J in Bennett v Minister of Community Welfare,[9] to the effect that once an injury “occurs within an area of foreseeable risk, in the absence of evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of duty caused or materially contributed to the injury.”
- [29]Her Honour appeared to reason that there was evidence here that the breach had no effect or that the injury would have occurred had the duty been performed. She said as follows:
“[71] In this case, Mr Meechan acknowledged that, at the time of the incident, he was aware that Mr Harris was not qualified to operate the excavator. He agreed that standing next to an unqualified person operating an excavator was dangerous. Further, he agreed it was even more dangerous to throw a heavily weighted object in the vicinity of someone who was not qualified to operate the excavator.
[72] It was, in any event, dangerous for Mr Meechan to have thrown an object at any person operating an excavator. In my view, the injury would have occurred as a consequence of that act, even if the excavator had been operated by a very experienced and qualified operator. It was the throwing of the weighty object, with little or, in effect, no notice, that was the cause of the injury.
[73] In the result, I find that Savco was not responsible in law for the injury, and the claim is dismissed.”
On this issue, her Honour did not refer to the evidence of Alex Savic, who agreed that a competent operator would ensure, whilst there was a persons in the vicinity of the boom, for example D shackling a load, that there was no possibility of movement of the boom. There was no reason to disregard that evidence.
- [30]A photograph of Alex Savic sitting in the cabin of the excavator was tendered at the trial. It indicates the risk of an inadvertent movement of the boom by the operator, if use was not made of the safety device. The risk was greater still for the fact that Mr Harris (unlike Mr Savic), is a man of six foot, four inches in height.
- [31]The argument for Savco is that even an experienced and competent operator can be careless, and it was Mr Harris’s negligence, rather than his inexperience or lesser competence, which was the cause of the sudden movement of the boom. The argument emphasised that Savco was not said to be vicariously liable for that negligence.
- [32]It is correct to say that it is the connection between Savco’s negligence and the movement of the boom, and in turn Mr Meechan’s injury, which must be considered. It is also correct to say that amongst competent and experienced operators of such machinery, there will be some who, on occasion, will do so without reasonable care. However the question is not whether this accident could have happened with an experienced and competent operator. It is whether Savco’s negligence, by permitting Mr Harris to operate its machine, created the risk, or substantially increased the risk, that by the unsafe operation of the machine it might cause injury to another person working near to it. The answer to that question was that Savco’s negligence did create or at least substantially increase that risk, and the risk having eventuated, it was reasonable on a broad common sense view to regard Savco as having caused Mr Meechan’s injury.[10]
- [33]Therefore I respectfully disagree with her Honour’s conclusion on this issue. Savco should have been judged to be liable to Mr Meechan.
Contributory negligence
- [34]The judge said this about contributory negligence:
“[74] If I had found that Savco was the cause of the injuries to Mr Meechan, I would have found, for the reasons already stated, that Mr Meechan contributed to his injury by undertaking what was clearly a dangerous activity; namely standing on a piece of heavy machinery and throwing a weighty object at the operator of the machinery.
[75] In those circumstances, if I had found that the injury was caused by the negligent conduct of Savco, I would have found that the extent of Mr Meechan’s responsibility for his injuries would have been 80 percent.”
- [35]In fact, Mr Meechan had not been standing on a piece of heavy machinery, but was instead standing on the flat tray of the truck. And the evidence was not that he threw the D shackle at the operator; he threw the item to where Mr Harris caught it, reaching out from the cabin of the excavator. Mr Harris said that he was sitting in the cabin waiting for Mr Meechan to give “the all clear” when Meechan called out “heads” or “heads up”, immediately before underarming the D shackle to the left of the excavator.
- [36]For Mr Meechan, it is submitted that his actions could not be elevated any higher than a misjudgment on his part. For Savco, it is submitted the judge was correct to find that Mr Meechan had negligently contributed to his own injury, and that his conduct required at least that he bear a greater responsibility than Savco for what occurred. It is said that her Honour’s conclusion in this respect was “entirely appropriate”, although at the trial, counsel for Savco submitted that a finding of contributory negligence of the order of one-third would be appropriate.
- [37]In his evidence, Mr Meechan accepted that the throwing of the D shackle was dangerous. In my opinion, Mr Meechan was negligent and his damages should be reduced. Nevertheless, a submission that by his negligence, he should bear a greater responsibility for the accident than Savco cannot be accepted. It was Savco’s negligence that created or contributed to a risk of an injury to Mr Meechan, working with or next to the boom of the excavator, when it was in the hands of a person without the necessary experience and competence in its operation. I would reduce the award by 20 per cent for Mr Meechan’s contributory negligence.
Damages
- [38]The trial judge assessed damages as follows:[11]
General Damages | $10,000.00 |
WorkCover Special Damages (as agreed) | $6,298.94 |
“Out-of-pocket Expenses” (as agreed) | $1,000.00 |
Past Economic Loss | $17,250.00 |
Past loss of Superannuation | $1,638.75 |
Fox v Wood Damages (as agreed) | $2,857.00 |
Net Assessment | $39,044.69 |
- [39]Mr Meechan suffered a fracture of his right elbow, which was managed in a sling for approximately six weeks. He complained of pain in his shoulder when he began to mobilise the arm, in consequence of which he was referred to a specialist who investigated his right shoulder with an MRI scan. This did not reveal any signs of cuff or labral tears.[12] He returned to work at CD, at a date about three months after the accident. His evidence was that he wasn’t then capable of doing tasks he had previously performed, and he was given light duties. He was laid off in August 2014, for the reason, he said, that there was little work available for him. In early 2015, he worked for a manufacturer of roller doors. He left that employment in late July 2015 and attempted to obtain further work in the construction industry. He did some work as a brick layer, but said that he had to discontinue that work after a week because of a weakness in his shoulder and his arm.[13] He said that since that time, he had been employed intermittently by a construction company.[14] Mr Meechan was born in 1990 and he was aged almost 24 when he suffered this injury.
- [40]There was a substantial contest as to the extent of the effect of his injury. The trial judge had evidence from Dr Robinson, an orthopaedic surgeon, Dr Duke, also an orthopaedic surgeon, and Ms Vincent, an occupational therapist.
- [41]Dr Robinson assessed Mr Meechan as having a four per cent whole person impairment (“WPI”) of his right elbow and a one per cent WPI of his right shoulder. Dr Duke assessed a one per cent WPI of the elbow and no injury to the shoulder.
- [42]The trial judge also had reports by Dr Keays, an orthopaedic surgeon, which were tendered by consent without the author being called. In his report dated 28 May 2014, Dr Keays diagnosed a soft tissue injury to the shoulder in addition to the fractured elbow. In his report dated 8 July 2014, Dr Keays assessed Mr Meechan as having a two per cent WPI in the elbow and no impairment to the right shoulder.
- [43]After discussing the evidence of Dr Robinson and Dr Duke, her Honour concluded as follows:
“[109] It is possible that Dr Duke is unduly hard in his view of the extent to which the elbow injury would affect the ability of Mr Meechan to work as a labourer. Nevertheless, there are a number of matters which lead me to the view that Mr Meechan’s evidence as to his capacity to work as a labourer should not be accepted. I have already concluded, in relation to liability, that Mr Meechan could not be relied upon to tell the truth. His varying versions of the incident show that he was evidently prepared to say anything that he perceived to be to his advantage.”
- [44]The judge also discussed the evidence of Ms Vincent, who saw Mr Meechan in August 2015 and provided a report dated 30 November 2015. She stated in that report that she relying upon the “self-report of the claimant” as well as her examination and the information with which she was briefed. That information included the report of Dr Robinson dated 13 July 2015 and that of Dr Keays dated 8 July 2014, but not that of Dr Duke.[15] Ms Vincent was of the view that Mr Meechan was unfit to return to work as a concrete labourer, because that work involved “simply too much lifting” and “forceful and repetitive use of the right upper limb”. The judge also noted Ms Vincent’s opinion that there was a reasonable prospect that Mr Meechan’s “chronic occupational restrictions will be causative of labour market disadvantage” and that as such, he was a “disadvantaged job seeker”.[16]
- [45]The trial judge found Mr Meechan to be an unreliable witness. Her Honour recorded Mr Meechan’s concession that he had given inaccurate versions of the accident to WorkCover, deliberately leaving out the role Mr Harris played in his injury.[17] Mr Meechan explained that he had done this because Mr Harris was his friend who had got him the job, and that he was concerned that Mr Harris would get into trouble on account of this event.[18] Her Honour found that Mr Meechan was “prone to exaggeration” in his evidence as to his medical condition.[19] The judge referred to “inconsistencies in behaviour on examination noted by the doctors … related to the shoulder and elbow rotation”, which in her view affected any conclusion about the reliability of Mr Meechan’s evidence as to the limitations in extending his elbow.[20] Her Honour was also not persuaded by what she described as “the vocalisations of pain by Mr Meechan”, which, based on the medical opinion, did not seem to be normal.[21]
- [46]Her Honour was unimpressed by what she described as “an unenviable documented work record” of Mr Meechan.[22] There was no evidence that Mr Meechan had lodged a tax return, but there was evidence that he was in receipt of Centrelink benefits from July 2010 to August 2013, with two periods during that time where he earned some income as a labourer. Her Honour found it unnecessary to “resolve the full extent of Mr Meechan’s income or his default with the taxation or social welfare authorities.”[23] Her Honour then made this finding:
“[122] For present purposes it is sufficient to find, as I do, that the evidence does not sufficiently demonstrate that any loss after the time he was paid by WorkCover was caused by the injury. The employment history of Mr Meechan after that time is little different from that before it. His cessation of employment with Ezi Roll Doors reinforces the view that Mr Meechan was not very interested in obtaining employment.”
- [47]The component for past economic loss was assessed by adopting a weekly income figure suggested by Mr Meechan’s counsel and allowing a period of 23 weeks.[24] Her Honour concluded that there was no basis for an award for future economic loss.[25] Her Honour assessed general damages upon the basis that Mr Meechan had suffered a “slight loss of rotation in his elbow”, and that it was difficult to rely upon Mr Meechan’s complaint of pain in his elbow and shoulder “for the credibility reasons already stated”.[26]
- [48]In this Court, it is submitted that the assessment of $10,000 for general damages was manifestly inadequate, and having regard to that finding of a permanent impairment, the suggested injury to Mr Meechan’s shoulder and the fact that it is his right dominant arm which is affected. It is also said that there is the “not significant risk that he faces the prospect of future osteoarthritic degeneration”. It is submitted that an award of no less than $30,000 for general damages is appropriate.
- [49]It is submitted that some allowance ought to have been made for future economic loss. Reference is made to Medlin v State Government Insurance Commission,[27] where a majority held that damages for a loss of earning capacity can be awarded where that capacity has in fact been diminished and the incapacity is or may be productive of financial loss. It is submitted, correctly, that it is unnecessary for a plaintiff to establish that his injury will be productive of financial loss, and that it is sufficient to prove that there is a chance of that loss occurring.
- [50]The argument for Savco supports her Honour’s rejection of Mr Meechan’s evidence, and her assessment of general damages. Savco’s argument, as it did at the trial, strongly attacks the credibility of Mr Meechan upon the basis of what is described as “flagrant and calculated dishonesty to various government departments and to the contractors with whom he had dealings.” It is unnecessary to discuss the detail of that submission. It is sufficient to say that there is no demonstrated basis for rejecting the judge’s assessment of the reliability of Mr Meechan’s evidence. Indeed, counsel for Mr Meechan conceded that that finding could not be challenged.
- [51]The Amended Defence for Savco admitted the allegation that Mr Meechan suffered injuries to his right arm and shoulder.
- [52]The submission for Mr Meechan, as to general damages, is persuasive. Her Honour did not accept the entirety of Dr Duke’s opinion. Mr Meechan suffered this injury in his early twenties. He also had some prospect of developing osteoarthritis, according to the evidence of Dr Robinson, with whom Dr Duke agreed in that respect. In my conclusion, a component of $25,000 should be allowed.
- [53]The further submission, for Mr Meechan, that there should be some allowance for future economic loss, is also persuasive. There is a sufficient basis for it in the facts of a permanent impairment and the risk of arthritis. The question here is not whether, more probably than not, a loss will be suffered; it is whether there is a diminished earning capacity which may be productive of financial loss. The extent of the diminution in this case is low, as is the risk of financial loss. But some allowance must be made for it.
- [54]In the submissions for Mr Meechan, it is said that a reasonable allowance would be an amount $67,650.00 which is calculated as follows: at the time of his injury, a reasonable measure of his putative earnings was $750.00 net per week. At the time of trial he was aged 29 with some 38 years to pass before a retirement at aged 67. Accepting, as the orthopaedic surgeons said, that there was at least a 15 per cent risk of the development of osteoarthritis, there should be an award for 15 per cent of $750.00 net per week, which at a five per cent multiplier of 902, converts to $101,475.00. That amount should be discounted by a third to allow for the prospect that he may be able to work notwithstanding that disability and without financial loss. In my opinion, that is a reasonable assessment for this component.
- [55]His damages should be assessed as follows:
General Damages | $25,000.00 |
WorkCover Special Damages (as agreed) | $6,298.94 |
“Out-of-pocket Expenses” (as agreed) | $1,000.00 |
Past Economic Loss | $17,250.00 |
Past loss of Superannuation | $1,638.75 |
Fox v Wood Damages (as agreed) | $2,857.00 |
Future economic loss | $67,650.00 |
Future loss of Superannuation (calculated at 11.8 per cent) | $7,982.70 |
Net assessment | $129,677.39 |
Less 20 per cent for contributory negligence |
|
Award | $103,741.91 |
Conclusion and orders
- [56]Leave to appeal is required pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld). A substantial injustice has occurred in this case which warrants the granting of leave to appeal.
- [57]I would order as follows:
- 1.Grant leave to appeal.
- 2.Allow the appeal.
- 3.Set aside the orders made on 5 February 2021.
- 4.Give judgment for the appellant against the respondent in the sum of $103,741.91.
- 5.Order the respondent to pay to the appellant his costs of the proceeding in the District Court and of this appeal.
- [58]BOND JA: I have had the advantage of reading in draft the reasons for judgment of McMurdo JA.
- [59]I agree with McMurdo JA for the reasons he gives that Savco breached its duty of care by failing to ensure that the excavator was operated only by an appropriately experienced and trained operator, thereby exposing the plaintiff to a risk of injury.
- [60]The effect of the evidence quoted in the reasons of McMurdo JA at [25] was that an appropriately experienced and trained operator would in the relevant circumstances ensure that there was no possibility of movement of the boom. The mechanism for doing so was the simple expedient of the operator disengaging an hydraulic lever at the side of his seat. This was the safety device referred to in the reasons of McMurdo JA at [30]. But for Savco’s breach of its duty of care, an appropriately experienced and trained operator would have been operating the excavator and it is reasonable to infer that, on the balance of probabilities, such an operator would have disengaged the hydraulic lever, thereby ensuring no possibility of movement of the boom. Accordingly, I agree with McMurdo JA that on a broad common sense view it is appropriate to regard Savco’s breach of its duty of care as having caused the appellant’s injury.
- [61]Savco’s breach of its duty of care was not the only causally significant factor in the mechanism by which the appellant suffered harm. He suffered harm partly because of Savco’s wrong but also partly because of his own failure to take reasonable care in the circumstances. That failure was a necessary condition of the occurrence of the harm which he suffered. Savco’s negligence would have had no impact on him at all if he had not thrown a 4 or 5kg metal D shackle at the operator of the excavator. I agree with McMurdo JA that the appellant failed to exercise reasonable care and that the damages recoverable from Savco should be reduced having regard to the appellant’s share in the responsibility for the occurrence of the harm which he suffered. However, in my view, Savco and the appellant should be regarded as equally responsible for that harm. I would reduce the award by 50 per cent for the appellant’s contributory negligence.
- [62]As to the assessment of the amount which should be allowed for future economic loss, the evidence of Dr Robinson was not merely that there was a 15 per cent risk of the development of osteoarthritis, but that if it did develop, it would preclude the appellant from working as a labourer at all. In other words, if the risk eventuated, his capacity to earn an income as a labourer would be destroyed. On that basis I agree with the methodology adopted by McMurdo JA at [54]. Save that I would have made a 50 per cent reduction for the appellant’s contributory negligence rather than a 20 per cent reduction, I agree with the way in which McMurdo JA has assessed damages.
- [63]It follows that I agree with the orders proposed by McMurdo JA save in respect of the amount mentioned in order 4.
Footnotes
[1] Meechan v Savco Earthmoving Pty Ltd [2021] QDC 14 (“Judgment”).
[2] Judgment at [58]-[65].
[3] Judgment at [72].
[4] Judgment at [24].
[5] Judgment at [28].
[6] Judgment at [59].
[7] Judgment at [60].
[8] [1986] HCA 1; (1986) 160 CLR 16 at 47-48; see also Leighton Contractors Pty Ltd v Fox [2009] HCA 35 at [20]-[22]; (2009) 240 CLR 1 at 11-13 per French CJ, Gummow, Hayne, Heydon and Bell JJ.
[9] [1992] HCA 27; (1992) 176 CLR 408 at 420-421.
[10] March v E&MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515.
[11] Judgment at [127].
[12] Judgment at [79].
[13] Judgment at [83].
[14] Judgment at [84].
[15] Judgment at [96].
[16] Judgment at [103].
[17] Judgment at [33].
[18] Judgment at [33]
[19] Judgment at [35].
[20] Judgment at [108].
[21] Judgment at [108].
[22] Judgment at [114].
[23] Judgment at [121].
[24] Judgment at [123].
[25] Judgment at [126].
[26] Judgment at [112].
[27] (1995) 182 CLR 1.