Wylie v ANI Corporation Ltd[1999] QDC 61

CIVIL JURISDICTION

JUDGE McGILL SC

and

BRISBANE

DATE 09/04/99

JUDGMENT

HIS HONOUR: This matter was heard on 22 and 23 March this year, when judgment was reserved and the reasons for judgment have been prepared and late yesterday were circulated to counsel in anticipation of delivering the judgment this morning, to enable them to check the mathematics and prepare any argument in relation to costs.

When the matter was listed for judgment this morning, application was made on behalf of the defendant to amend the defence, to allege that there was an implied term in the contract of employment between the plaintiff and the defendant, that the plaintiff would carry out his duties with due care and skill, in such a fashion as not to cause injury to any person, including himself and in such a fashion as to take reasonable care for his own safety, but those duties had been breached and by reason of those breaches, the defendant had suffered loss and damage in such amount as the plaintiff's damages recoverable from the defendant, which were then sought to be set off, or subject to a counter-claim.

This amendment was advanced in reliance on the decision of the House of Lords, in Lister v. Romford Ice and Cold Storage Company Limited [1957] A.C. 555, the continued application of which in Queensland was supported by a majority of the Court of Appeal in A R Griffith and Sons Proprietary Limited v. Richards [1996] 24 MVR 296.

It seems to me that decision and the decision in Lister and Romford Ice are distinguishable in the present case, because they were concerned with a contractual obligation in the context of some injury to a person or property other than the employee. The person who was injured in Lister was not the employee, but the employee's father, who was riding in a motor vehicle driven by the employee.

The person who was injured in A R Griffith & Sons was also not the employee. The majority at page 314 said:

The principle in Lister v. Romford Ice has been the subject of some degree of criticism and indeed, in that case, the then President of the Court of Appeal dissented and would have rejected its continued application. It seems to me that what is being sought to do in the present case is really to extend the principle, to make it applicable in circumstances where the injury was not suffered by someone else, but suffered by the employee himself.

There is a difficulty in that argument, because it would have the practical effect of reinstating contributory negligence as a complete defence, since the effect of the breach of the contractual term, where it applied, would be to give rise to a contractual obligation to make good the loss suffered by the defendant as a consequence of the breach, which would necessarily be the extent of the defendant's liability to the plaintiff.

That would be the measure of damages for the breach of the contractual term whatever the relative significance of the breach of duty by the employer and the breach of duty of the employee. In circumstances where the legislature has abolished contributory negligence as a complete defence, I think that it could be said that the term which is sought to be implied is one which would be inappropriate, because it is inconsistent with that statutory provision.

I have not been provided with any authority saying that a term such as that of Lister v. Romford Ice operates in respect of injury to the employee himself and I am not aware of any and I do not think that it is an extension of the principle which should be made. In my opinion, the proposed amendment is based on a legal argument which is wrong, because the law would not imply a term such as that sought to be relied on into a contract of employment and therefore, the proposed amendment would not succeed and for that reason, I would refuse the application to amend.

...

HIS HONOUR: In this matter, I give judgment for the plaintiff to recover against the defendant in the sum of $40,347, which includes $1,739 for interest.

I publish my reasons.

...

HIS HONOUR: I am inclined to think it is a significant factor for the purposes of rule 118 that the understanding of the law was changed in Australia by the decision of the High Court in Astley v. Austrust and that if this case had been decided prior to that decision, the plaintiff would have recovered an amount which was substantially less than the amount in fact recovered and substantially less than the amount of the offer, which is expressed to have been open only for 14 days.

The defendant may well have been able to make a further offer after Astley's case became known, but the plaintiff did not renew the offer after Astley's case became known. I think in view of this, it is probably overly technical to place too much reliance on the fact that the cause of action in contract was not pleaded at the time when the offer was made, because again the significance of that was only apparent later and that really points up the fact that at the time when it was made, the offer was overly optimistic.

I think there is in those circumstances, sufficient reason to depart from the prima facie position established by rule 118. With regard to the question of whether there should be no order for costs or separate costs of the issues, I think that the bulk of the costs were related to the first accident, or would have been incurred anyway, and that adopting the sort of broad-brush approach recommended by the authorities and taking into account all the various matters discussed in the course of argument, the appropriate course is to order the defendant to pay the plaintiff's costs of and incidental to the action, to be taxed.

HELD AT BRISBANE

QUEENSLAND

[Before McGill DCJ]

[Wylie v. The ANI Corporation Limited]

BETWEEN:

AND

JUDGMENT

BETWEEN:

AND

REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 9th day of April 1999

By this action the plaintiff claims damages for two injuries suffered by him in the course of his employment with the defendant. There is no doubt that the plaintiff suffered injuries while at work, but the defendant denies that either injury was caused by its negligence, and in addition alleges that the plaintiff was on each occasion guilty of contributory negligence. Quantum is also in issue.

The plaintiff originally trained as a pipe fitter and pipe welder and did that work until he came to Australia in 1984, after which he has only worked as a welder: p.22. Most of this work has been done while employed by the defendant where he started in 1985. For 7½ years he worked on the afternoon shift, and for 4 years worked on the night shift from 11 p.m. to 7 a.m.: p. 10. He was working at the relevant time in a welding bay, one of eight bays constructed on one side of a section of a large shed: Exhibit 11. A photograph of one such bay is on p. 17 of Exhibit 5. It had walls about head height on three sides, and a moveable screen which could be positioned across the front of the bay. Inside the bay was a low work platform. At the relevant time the plaintiff was working on bolsters which are the principal structural element of a railway bogey; examples appear in the photograph, Exhibit 8, and in other photographic exhibits. These would come from the foundry, and would have cracks welded up and otherwise be dressed off by the welders: p. 10. They were moved in and out of the welding bay using a gantry crane which ran above the whole section of the shed; a photograph of the crane is on p.15 of Exhibit 5. It was operated by a hand held panel of buttons (p.10) hanging below the crane which could be used by someone standing on the ground near the crane. This was called a pendulum, and is shown in a photograph. There were also smaller cranes mounted on the floor between each pair of welding bays which had a beam able to swing 180°, from which hung a moveable hoist (p.11); one of these appears in photograph 6 of Exhibit 5, and the beams of two of them are visible in the distance in photograph 2.

The First Accident

According to the plaintiff, on the night of 1 July 1994, he went to the office and was given his job, and then went round to his welding bay where he found the next bolster ready for attention on the floor outside the bay: p. 13-14. He brought the gantry crane up and attached two hooks to the bolster, lifted it and brought it towards him. He said that it hung straight (p.50) and as it came towards him he let go of the button when the bolster got to halfway (p.47) but the gantry did not stop (p. 14) and the bolster struck him on the right knee, jamming him against four other bolsters in front of which he had been standing: p.15. A diagram of the incident was drawn by the plaintiff in the witness box (Exhibit 13). The bolster marked “Start” was lifted and then moved sideways, striking the plaintiff at about the point where the cross is marked, and crushing him against the four bolsters in two stacks shown near the cross: p.46. The plaintiff was taken to the first aid room and subsequently to hospital with an injury to the right knee which I shall describe later. As a result, the plaintiff was off work for some eight weeks: Exhibit 10. Thereafter he returned to work for the defendant doing the same type of work.

The Second Accident

On 17 September 1996, the plaintiff had worked most of his night shift when his welding machine broke down: p. 17. He spoke to the leading hand who told him to get the cables off and bring it out and a new one would be put in: p. 18. He said he went back to his welding bay, number 3, where he took all the cables off the old machine, and then went to get the gantry crane which was down near the other end of the section. He got the controls and walked the crane back towards Bay 3. He said that as he did so he could see the leading hand moving the small crane between the two bays, and the plaintiff was watching to make sure that crane was out of the way of the cable on the gantry crane, when he heard a loud noise, turned round and a welding machine which had been left outside the entrance of the bay fell over on his right foot: p. 18. As a result, three bones in the foot were fractured: Exhibit 4. The plaintiff said (p. 18) that the hook had caught on the machine and pulled it over as the crane continued to move forward.

During the trial the broken welder was referred to as the “old” welder and the replacement welder as the “new” welder. According to the plaintiff, the welder which was pulled over by the hook was the new welder. The plaintiff said that the old welder was still in the welding bay, and the new welder had been left near the mouth of the bay, in a position where it straddled a yellow line painted on the floor: p.44. The position is marked on a diagram which the plaintiff drew in the witness box (Exhibit 14), although the plaintiff had some difficulty in drawing it because of the lack of space between the yellow line and the edge of the page. The plaintiff said that before the welder was pulled over he had not noticed that it was in the path of the hook (p.43), as he was concentrating on whether the smaller crane was out of the way of the cable: p.44.

A Conflict of Evidence

The leading hand, Mr. Sieple was also called to give evidence, and gave a significantly different version. He confirmed that the plaintiff had come to him about a welder being broken during the night shift (p.95) and said that he told the plaintiff to remove the machine from the bay and that he would bring another one around: p.96. He obtained a fork lift, picked up a welding machine from another section and brought it around (p.96) to about 20 feet away from where the plaintiff was standing beside the old welder and under the crane near the mouth of his welding bay: p. 101. He placed the welder on the ground, backed off the forklift and got down: p.96. He said that he put the welding machine in front of Bay 3 and the plaintiff had been working in Bay 4: p. 100. He saw the plaintiff looking at him when he placed the new welder with the forklift: p. 101. The crane then came towards him, the hook caught on the top of the welding machine, and it fell over and landed on the plaintiff's foot: p.96. He said that the machine that fell over was the old welder which the plaintiff must have brought out of the bay using the gantry crane (p. 106), although he did not actually see this: p. 105. It was in a position to which it could not have been moved by the smaller crane; that is, the crane between Bays 3 and 4: p. 106. He said there was really no other way that welder could have been removed.

The diagram marked by Mr. Sieple, Exhibit 19, shows the position of the welder that fell over on the plaintiff's foot, a position quite similar to that of the new welder in Exhibit 14. He said that the new welder had been placed in a position which would be off the paper: p. 105. His explanation for the accident was that the plaintiff had brought the welder out, placed it on the ground, removed the hook from the lug on top of the welder (which involved lowering the hook below the lug so as to get it out) and then pressed the “south” button to move the crane towards the new welder. As it moved off the hook caught and pulled the machine over: p. 106.

I think it is necessary for me to resolve this conflict in the evidence. There was nothing about the way in which either the plaintiff or Mr. Sieple gave evidence which made me think that each witness was not trying to tell the truth as he recalled it, but obviously both versions cannot be right. There are two aspects of Mr. Sieple's evidence which I think do not stand well with other evidence. He said that in 1996 the overhead crane took about six inches to stop when the operator let go of the pendulum (and hence released the button) when it was travelling north/south (i.e. across the face of the line of welding bays): p.97. Apart from being inconsistent with the evidence of the plaintiff (and Mr. Edwards), this I think does not stand well with the evidence of Mr. King that the crane had a stopping distance of about 1.3 metres on release of the button when inspected on 18 March 1999: Exhibit 5. Mr. King regarded this as adequate braking performance: p.7 of Exhibit 5. Furthermore, he pointed out on p.10 that sudden stops or jerks should be avoided as these could cause the load to swing unduly, and I would think that if the crane stopped in six inches, that would qualify as a sudden stop. The travel speed was 53.7 metres per minute (Exhibit 5, p.2), and stopping in .15 of a metre would require it to stop in about 1/3 of a second. Furthermore, Mr. Sieple agreed that on about two times at meetings of the employees, called tool box meetings, there were complaints about the crane travelling “a bit too far”: p. 100. If it stopped in six inches it is, I think, quite unlikely that anyone would complain that it was overrunning. There was evidence from Mr. Edwards and the plaintiff that what was raised at these tool box meetings were complaints about the crane running on after the button was released. In all the circumstances I am not prepared to accept Mr. Sieple's evidence about the crane stopping in six inches when the button was released.

He also gave evidence about the crane pendulum which must be wrong. Under cross-examination he was shown Exhibit 6, and identified it as the pendulum of overhead crane number 5: p. 182. This crane appears in photograph 2 in Exhibit 5, and is the relevant crane. However, when shown photograph 3 in Exhibit 5, he said that this was a photograph of the pendulum on crane no. 5 and Exhibit 6 showed the pendulum on crane no. 4: p. 102. He said that the pendulum on that crane (no. 5) had never been changed, but the other one (no. 4) was changed. This part is not consistent with the evidence of the plaintiff and Mr. King; Mr. King's evidence was that photograph no. 3 was the pendulum now on crane no. 5, while the plaintiff's evidence was that photograph no. 6 was the pendulum that had previously been on crane no. 5: p.11. However, Mr. Sieple was then shown Exhibit 7, which the plaintiff said was a photo of the pendulum used on the other gantry cranes (p.11) and he said that this was the pendulum for gantry crane no. 5: p. 104. Plainly however, Exhibit 7 is not a photograph of the same pendulum as in photograph 3 in Exhibit 5, and the explanation cannot be that Exhibit 7 is the earlier version of the pendulum on that crane because Mr. Sieple said (p. 102) that the pendulum on crane no. 5 had not been changed. There is no reason to doubt that Mr. King's evidence is accurate, so it follows that this evidence of Mr. Sieple cannot be right; either the pendulum for crane 5 was changed, or his identification of two different pendulums for crane 5 must be wrong.

The fact that Mr. Sieple has made these two errors does not necessarily mean that the rest of his evidence is unreliable. He may well never had had reason to measure the stopping distance of the gantry crane, and it might be difficult to estimate accurately, unless one was making an effort to do so. The real effect of his evidence may be simply that the crane stopped reasonably quickly when the button was released. The explanation for the evidence about the photographs may simply be that he is in error as to his recollection of which pendulum was changed, and having identified photograph 3 (correctly) as the current pendulum on crane no. 5, felt that Exhibit 6 must therefore have been a different crane. He did initially identify Exhibit 6 as the pendulum for crane no. 5, which according to the plaintiff, was correct in the past. These are therefore not necessarily serious errors, but they are reasons to treat his evidence with some caution.

There is also some reason to treat the plaintiff's evidence with caution. He said in respect of the first accident that the bolster did not swing at all, and he would not describe it as having swung: p.31. However, when he saw Dr. Fairbairn at the Emergency Centre at the Mater Hospital on 1 July 1994, the account he gave was that the crane lifted a heavy weight off the ground, the weight swung and hit his knee and forced his knee backwards on to a sharp object: p.61, and see Exhibit 15, Exhibit 16. When the plaintiff completed his application for workers' compensation in Form 4 on 6 July 1994 (Exhibit 12), his description of the accident was:

In view of this material it was submitted for the defendant that what had happened in the first accident was that the plaintiff had failed to position the overhead crane properly above the bolster he was lifting, so that when the weight came clear of the floor it swung towards him, hit his knee and forced it against the bolsters behind him. There is no evidence to support this explanation for the accident, other than the use of the use of the term “swung”, and it strikes me as an inherently implausible explanation. It assumes that the plaintiff must have been standing reasonably close to the bolster that was being lifted, but the accident was only possible because there were other bolsters immediately behind him; in other words, he was in a fairly narrow gap between the bolster that was being lifted and the (presumably completed) bolsters behind him. That would, I think, be a strange place to stand, particularly if the crane was not directly above the bolster being lifted, something which must have been obvious from the way the hook was hanging from the crane before the chains were attached to the bolster. It would certainly be possible to pick up a bolster with the crane not directly overhead, but I do not think it would be possible to do that without realising in advance that that was what you were doing, and it would be obviously foolhardy to stand in a confined space in such a situation when it must have been obvious that the bolster, as soon as it was lifted, would swing towards him. That, I think, is an inherently implausible explanation for the injury.

On the other hand, the plaintiff's evidence that when he said “swung” what he meant was just coming towards him (p.32,42), is also hard to accept, as is his evidence that the bolster did not swing at all: p.31. If the crane was not directly up above the bolster, it would have swung even if only slightly when lifted, but more importantly, once power was applied and the crane was moved, this could have acted to make it swing more, unless it happened to be swinging in the direction of travel anyway as the crane was activated: p.79. Similarly, as the crane slows down, if the bolster was not otherwise swinging, its momentum would tend to make it swing ahead of the crane anyway: this follows from the reference on p. 10 of Exhibit 5 to the effect of a sudden stop; if the stop was not sudden the effect would have been diminished but not eliminated. The plaintiff, when describing the ordinary operation of the crane, spoke of the load swinging when he stopped it using the opposite button: p. 13.

The plaintiff's diagram, Exhibit 13, indicates that before the incident the bolster awaiting attention was on one side of the welding bay, and there were other bolsters on the other side. These were either completed bolsters, or awaiting attention in the next welding bay. In either case, the positioning is plausible. The plaintiff in that situation had to move the bolster a short distance across the face of the welding bay to the centre of the bay, and then into the welding bay so that the bolster could be placed on the stand. The width of the bay was about three metres (p.48) so this involved moving about one and a half metres, and if he released the button when the bolster was about halfway across the face of the bay, as he said (p.47), on Mr. King's figures for stopping distance, the crane would have carried almost to the other side of the welding bay anyway, and with a bit of swing would have been quite enough to catch the plaintiff against the bolster which was inside the line of the welding bay: Exhibit 13. If the plaintiff, after lifting the bolster, first put on power and then released the button as he said, there must have been some swinging involved, and after he released the button the tendancy would have been for the bolster to swing towards him. That would explain his subsequent use of the word “swung”, although it still means the accident happened essentially in the way described by the plaintiff.

Nevertheless, the plaintiff's insistence that the bolster did not swing is inconsistent, I think, with his statements to Dr. Fairbaim and in Exhibit 12, and is inherently implausible, and I reject it.

There was another aspect of the plaintiff's evidence which struck me as inherently implausible. The yellow line which is visible on the floor in some of the photographs and ran across the face of the welding bays at 1.4 metres from it (p.81 and see p. 100) is obviously the boundary of a walkway, but there was a conflict of evidence as to which boundary. The plaintiff said that the walkway was on the side of the yellow line away from the welding bays (p.12), so that in photograph 1 in Exhibit 5 the bolsters were actually stacked in the walkway: p.47. The evidence of Mr. Edwards was to the same effect: p.66. The evidence of Mr. Sieple was to the contrary that the walkway was the area between the yellow line and the welding bays, and the area between the yellow lines was for stacking things: p. 100, p. 108. That would certainly be consistent with the current practice shown in the photograph, Exhibit 5, and all the objects in Exhibits 6, 7 and 8 are behind yellow lines, although it is not possible to relate them to the position of the welding bays. Mr. King, on p.2 of Exhibit 5, seemed to accept the plaintiff's version of where the walkway was, and this is reproduced in the diagram on p.3, but as appears from the diagram, Exhibit 13 (and the photographs), if the bolsters were positioned at right angles to the yellow line, they would not fit between the edge of the welding bay and the line, so in this respect the diagram in Exhibit 5 was wrong. Since the welding bays are designed to be closed off with a moveable curtain which appears in photograph 1, the yellow line does not mark the de facto fourth side of the welding bay. Overall I have difficulty accepting the evidence of the plaintiff and Mr. Edwards about the location of the walkway.

I also find implausible the evidence that crane no. 5, when travelling in a longitudinal direction, that is, across the face of the welding bays, when the power button was released would run on for about 10 feet or so. This appears at p.2 of Exhibit 5, which information was obtained from the plaintiff: p.72. There was evidence given to this effect by Mr. Edwards, who was also formerly employed in the factory: p.58. This seems a very long way for a gantry crane to run on since I would expect the motor to tend to stop the crane once power was switched off: p.80. It would also make the crane very difficult to use, because of the difficulty in properly estimating the stopping distance: p.77. When Mr. King saw the crane, the stopping distance was much shorter than this (p.2, Exhibit 5) but according to Mr. Edwards in early 1988 (p.60), some work was done on the crane and a two speed switch was put on giving running speeds of fast and slow: p.57. He said that the braking was fine after this: p.59. Mr. Sieple denied that the gantry crane had been modified in any way (p. 102) and denied that the crane now had a two speed system: p. 104. He said that that applied to the little cranes in the bays. Mr. King did not operate the crane himself, but it was not demonstrated to him as one which had a two speed system: p.79.

If it did have such a system, I think it somewhat surprising that that did not emerge in the course of the demonstration.

There is one other point about this long distance it took the crane to stop. If the crane did behave like this (and according to Mr. Edwards it did this all the time: p.65), it was extremely foolish for an operator to stand a few feet in front of the load and then start to move the load so that it was coming at him. It follows from the plaintiff's description of the accident and Exhibit 13, and indeed the other diagrams, that he must have been standing in the path of the bolster when he started the move. That is not a particularly safe position to be in at the best of times, but if the crane always runs on for something like 10 feet when the button is released, he was in a position where he was bound to be hit by the bolster unless he could stop the crane by pressing the button for the crane to travel in the opposite direction. It is difficult to believe that the plaintiff would actually have done this if this crane had the tenancy to run on as he described to Mr. King, and as referred to by Mr. Edwards.

There is another aspect of the plaintiff's evidence which strikes me as inherently implausible: he said that in respect of the second accident when he was bringing the gantry crane up from the other part of the building he did not see the welding machine which ultimately the hook caught in and tipped over on his foot: p.44. His explanation was that he was watching the other crane to make sure that they did not collide (p.43) even though he must have walked right past the welder to get to the position where it could fall over on his foot: p.52.

When assessing this conflict of evidence I have also kept in mind that the plaintiff has an interest in having accepted his version of events and that the plaintiff has not been working at these premises since late 1996, so he may well no longer recall accurately some of the details of how things were there. Mr. Edwards had also left the defendant's employment, but in October 1998 (p.53) so still should have reasonable recollection of those matters. However, Mr. Edwards was the one witness whose demeanour did give me some doubt as to his reliability. The plaintiff was on workers' compensation after the second accident and so presumably completed a Form 4; since he was not cross-examined on it, the version given there must have been consistent with his account in the witness box. There was no evidence that Mr. Sieple had given a contemporaneous account of the accident consistent with his evidence, or any basis on which I could infer that, and he had less reason to remember the accident because it did not involve him directly. The matters where he contradicts the evidence of the plaintiff and/or Mr. Edwards are not themselves confirmed by any other evidence, and that I think means that merely demonstrating that there are conflicts on a number of matters between Mr. Sieple and the plaintiff and his witness should not be used as a basis for casting doubt on the evidence of the plaintiff.

Although I have referred to a number of aspects of the plaintiff's version as striking me as inherently improbable, I do not have any other evidence as to how things were done in this factory, and how the crane was operated. I should not doubt the reliability of evidence that something was done in a particular way merely because it seems to me, looking at the matter without the benefit of any practical experience of work in such a place, that that is not the way I would do it. It also seems to me that it would have been quite easy for the defendant to have called further evidence about the operational characteristics of the crane, whether or not the pendulum had been changed, whether or not brakes had been fitted, or the motor had been changed, or a two speed system had been installed, and how it performed, but no such evidence was forthcoming.

Taking into account all of these factors, I have finally come to the conclusion that there is not sufficient reason to reject the plaintiff's evidence generally, including his evidence as to how the second accident happened, and I therefore find on the balance of probabilities that it occurred in the way he described rather than in the way described by Mr. Sieple. Although I am prepared to accept the plaintiff's evidence generally, for reasons referred to earlier I am not prepared to accept as reliable everything he says. In particular, I am not prepared to accept his evidence that on the occasion of the first incident the bolster did not swing. Given that this statement was false, I am cautious about whether there are other particular parts of his evidence which should not be accepted, particularly the evidence of him and Mr. Edwards that the crane would run on some 10 feet or more when the button was released. The only evidence which directly contradicts this is the evidence of Mr. Sieple to the effect that it stopped in 6 inches, which I think is plainly wrong, and I do not think that I should reject it simply on the basis of my own expectations as to the performance of electrically driven equipment. The fact that this crane behaved unusually in running on is to some extent confirmed by Mr. Sieple's evidence that this issue had been raised by other employees at the meetings. In all these circumstances I do not think there is sufficient reason to reject the evidence of the plaintiff and Mr. Edwards in this respect, however surprising I may find it personally.

Liability In Relation To The First Incident

In my opinion, the real cause of the plaintiff's injury on the first occasion was that the plaintiff was in a place of danger, that is between the stack of four bolsters on the ground and the bolster hanging from the crane which he then moved towards himself. Once the suspended bolster had moved halfway across the face of the welding bay, the accident was inevitable. Given the braking characteristics, or lack of them, of this crane, it would inevitably run on to the point where the plaintiff was standing if he merely took his finger off the button. Even if the crane had had the sort of braking characteristics it has now, I think it is clear from Exhibit 13 that by the time the crane had stopped the bolster would have come on to the position where the plaintiff was standing. If the plaintiff had pressed the other button to put reverse power on the motor and stopped the crane abruptly, the load would have swung towards him, and allowing for reaction time, time for the reverse power to take effect and the swing of the load, I think that he would almost certainly have been struck by the swinging bolster anyway. It seems extraordinary that the plaintiff put himself in such a position, the danger of which does not seem to have occurred to him until it was too late to move out of the way (p.49), but that must have been how the accident happened. The crane did not do anything except respond to his deliberate manipulation of the controls.

The propensity of the crane to run on was unsatisfactory, but in my opinion it was not a cause of this accident. The plaintiff was thoroughly familiar with this crane, having used it many times: p.28. It was not as though he had come to the job with a general expectation as to how a crane would perform, but not aware of how this one would perform. Besides, in view of his account of what occurred, and the relevant dimensions, if the crane had had its current braking performance, which Mr. King regarded as perfectly acceptable (p.76), the accident would still have happened. Mr. King speaks about unpredictable braking performance of the crane (Exhibit 5, p. 7-8), but the plaintiff gave no evidence to support this version, and the evidence of Mr. Edwards was that the performance was consistently bad: p.65. The plaintiff's evidence was that there were no brakes on that crane (p.11), and if there are no brakes on the crane, the brakes cannot work on some occasions but not on others. Mr. King's discussion, based on unpredictable braking, is therefore irrelevant. The plaintiff's evidence at p.14 1.14, refers, I think, to the difference between this crane and the other two.

Mr. King's evidence also dealt with the existence of proper operating procedures for cranes: Exhibit 5, p. 10. He referred to an Australian Standard on the safe use of cranes, AS2550.1. which speaks of the operation of cranes by competent and trained personnel, and the preparation and maintenance of instructions for the operation of cranes. In particular, the load should be pushed not pulled, that is the load should be moved away from the operator, not towards the operator. The standard has no legal force - Finn v. Diocese of Townsville [1997] 1 Qd.R. 29 at 36 - and failure to comply with it is not conclusive of negligence, but it is some evidence of the content of a safe system of work.

There was no training or instruction given to the plaintiff about the proper operation of the crane, either when he started work for the defendant or subsequently: p.12. He just learnt how to use the crane by watching others. The evidence of Mr. Edwards was to the same effect: p.56. I accept this evidence, and it follows that there was no system of work implemented in relation to the safe operation of the crane by the defendant. It was argued that the defendant was in breach of its obligation to provide a safe system of work, that is to take reasonable steps to provide a safe system of work. The duty on an employer is a positive duty to devise and implement a safe system of work, and that duty is not discharged by leaving it to the employee to work out a system of work which minimises avoidable risks. A good example of the approach in this area is the decision of the High Court in McLean v. Tedman (1984) 155 CLR 306. It is not necessary to repeat the facts of that case; the hazard posed by the system of work adopted by the employees in that case would have been as obvious to them as to the employer, but that did not mean that the employer was relieved of the burden of detecting the risk and taking steps to prevent such a risk from materialising. The employer was said to have a responsibility for accident prevention and to be under an obligation to establish, maintain and enforce a safe system of work: p.313. It is no answer to say that the plaintiff was experienced with the operation of the crane, and that he ought to have known for himself that it was unsafe to stand in the path of the load. Negligence on the part of the employee is not a complete defence, and the employer's duty involves an obligation to foresee the possibility of negligence on the part of an employee, and to attempt to arrange a system of work which will protect such an employee. That involves establishing and enforcing a system of work which would avoid doing the sort of thing which is unsafe but which the employee's negligence might lead him to do. The plaintiff said he normally moved the load towards himself: p. 13. If the employer had provided training and instruction in the operation of the crane which included a requirement that the load not be moved towards the operator (which is really an instruction as to where an operator should position himself when operating the crane) and if that system of operation had been established and enforced within the factory, this accident would not have happened unless the plaintiff had, on this particular occasion, chosen to disregard it. Once an employee had developed habits of working safely, he would probably have followed them, at least ordinarily, but if the employer does not, by imposing a safe system of work, cause the habits of working safely to develop, it is, I think, not difficult to see that the failure to work safely on a particular occasion was caused by the failure to establish and maintain that safe system of work.

The defendant relied on the decision of the Court of Appeal in Hill-Douglas v. Beverley (Appeal 2829/98, Court of Appeal, 4.1.99, unreported) where it was said by the Court in para. 54:

It was submitted that this applied in the present case and that the plaintiff had not shown as a matter of probability that any warning or instruction would have caused him to act differently. In that case, the plaintiff was a stockman employed on a sheep station where he was injured in the course of working some sheep while mounted on a motor cycle when he rode into a wire fence. He was aware of the presence of the fence and indeed was trying to use it in the task he was performing, which involved cutting some flyblown sheep out of a flock so that he could treat them. In that case the trial judge found that there was negligence on the part of the employer, by reason of not giving the plaintiff any adequate instruction or training with respect to the proper or safe methods of manoeuvering a motor bike while working with stock in close proximity to dividing fences. The court referred to a number of authorities dealing with the obligations of an employer, and in para. 17 formulated the issue as being whether this was a case in which the appellant should have warned the respondent of the obvious. It was said that the hazzard posed by the presence of the fence was a known and obvious hazzard of which the respondent was aware, and that he had not demonstrated any lack of understanding of the danger or of the need to avoid it: para. 19. In paras. 21 and 22, the court said:

A little later it was pointed out that any admonishment could only have been in the most general of terms and advice to be careful or to keep a good lookout would have been no more than platitudes.

It seems to me that there is a difference between that case and the present. This is not a case where an employer could do no more than caution the employee about the existence of a hazzard which was obvious to both of them, the avoidance of which depended upon the way in which the work was carried out, which was necessarily a matter left to the choice of the employee. In the present case, there is evidence of what the employer could have done; it could have instituted and maintained a practice of following the load rather than leading the load, that is for the operator to position himself so that the load was not moving towards him. This is a practice recognized by the Australian Standard, recommended by Mr. King, and, it seems to me an obvious enough practice for an employer to institute, and one which if followed in this case would have avoided the accident. I think that that means that the approach in Hill-Douglas v. Beverley is inapplicable in the present case.

The other issue in that case was as to causation. That issue was analysed in the context that the relevant negligence involved a failure to warn, and the court followed a previous decision in Hallmark-Mitex Pty Ltd v. Rybarczyk (unreported, Court of Appeal, appeal 1109/97, 4.9.98):

See also Green v. Chenoweth [1998] 2 Qd.R. 572.

The relevant issue in this case is not one of failure to wain, but failure to establish and maintain a safe system of work. In some circumstances a particular hazzard can be avoided by adopting a system of work which will prevent that hazzard from materialising, but in other cases it is not possible to adopt this systemic approach to risk minimisation, and all that can really be done is to ensure that the employee is conscious of the existence of the risk so that he has the opportunity of avoiding it for himself. That is where what is relevant is the duty to warn rather than the duty to establish and maintain a safe system of work. In circumstances where there is a failure to warn, the issue as to causation becomes whether it would have made any difference if the warning had been given; where the issue is failure to establish and maintain a safe system of work, it is a question of whether it would have made any difference if that system of work had been established and maintained, not whether the employee was warned against the hazzard which is left unavoided by that failure. It is therefore, in my opinion, no answer to an allegation of negligence on the basis of failure to establish and maintain a safe system of work to show that the employee was aware of the danger to which he was exposed by this failure. It also follows that it is not relevant to consider whether, had he been given a warning of that danger, he would have acted differently.

In my opinion therefore, the decision in Hill-Douglas v. Beverley (supra) does not assist the defendant in the present case. The position is simply that the defendant foiled to establish and maintain safe work practices for the use of the gantry crane, relevantly the practice of not moving the load towards the operator. If there had been such a practice and if it had been followed in this case, the accident would have been avoided. If there had been such a practice, employees would probably have developed the habit of following it, and therefore would probably have followed it in this case. It follows that if there had been such a practice established by the employer, this accident would probably have been avoided, and therefore the failure to establish the practice was a cause of the accident.

It follows that the defendant was in breach of its obligation to establish and maintain a safe system of work, and is therefore liable for the injury suffered by the plaintiff in the first accident. It was alleged in the further amended plaint, filed by leave on the first day of the trial, that the defendant was negligent or in breach of its contract of employment with the plaintiff or both. For the moment I propose to leave the nature of the cause of action and turn to the question of contributory negligence.

Contributory Negligence

Here the question is whether the plaintiff ought reasonably to have foreseen that if he did not act as a reasonably prudent man he would expose himself to risk of injury: Bankstown Foundry Pty Ltd v. Braistina (1986) 160 CLR 301 at 310. As was pointed out there, his conduct must be judged in the context of the finding that the employer was in breach of its obligation to establish and maintain a safe system of work. The question is whether in such circumstances the conduct of the work amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage. Some emphasis needs to be placed on the word “mere”, because inadvertence, inattention or misjudgment and contributory negligence are not mutually exclusive categories. Inadvertence, inattention or misjudgment can amount to contributory negligence: the question is whether it does so depends on the test posed by Windeyer J in Sungravure Pty Ltd v. Meani (1964) 110 CLR 24 at 37. As explained by the majority in McLean v. Tedman (supra) at p.315, some temporary inadvertence, some inattention or some taking of a risk will be excusable if in the circumstances it is not incompatible with the conduct of a prudent and reasonable man. The issue is ultimately one of fact. The question is whether the plaintiff acted as a reasonable and prudent man in the circumstances in which he was injured: Alexanderow v. Tully Co-Operative Sugar Milling Association Ltd (appeal 65/88, Full Court of Queensland, 5.6.89, unreported) per Ryan J at p.7, Connolly J agreeing. In the same judgment his Honour rejected the proposition that a person cannot be guilty of contributory negligence if he shows lack of reasonable care for his own safety in carrying out a dangerous operation as part of his employer's business.

In the present case I think there was more than mere inadvertence or inattention. The plaintiff was in a position directly in the line of the bolster that was moving towards him, and he got into that position because that is where he chose to stand. The bolster moved when it did because he moved it at that time. This is not a case where the plaintiff could have avoided the incident if he had noticed what was occurring and taken appropriate evasive action in time. It is a case where he just does not seem to have appreciated the danger in doing what he was doing, but in my opinion a person in his position who was taking reasonable care for his own safety would have done so. Mr. Edwards said that when he operated the crane, he would stand as clear away from the casting as he could, and in particular would stand behind it: p.56. That, I think, is an obvious precaution for an employee to take, particularly one who was experienced with this crane and was aware that it did not stop quickly. I am conscious of the fact that the employee's conduct must be judged in the context of a failure by the employer to implement a safe system of work, and that it is not the responsibility of an employee to do this for himself, but it remains, I think, the responsibility of an employee to take reasonable care to avoid dangers obvious to a reasonable employee in his position. I think that the danger of standing where he was standing would have been obvious to a reasonable employee in his position, and such an employee taking reasonable care for his own safety would not have put the crane into operation to move the load towards him while he was standing in that position. Indeed, given the behaviour of this crane I think it was an extremely foolish thing for the plaintiff to do, and an example of serious negligence on his part. It is difficult to accept that he was unaware of the pile of bolsters behind him (p.49), but if this is true it is a serious failure to be aware of his surroundings, and what was in the path of the load he was moving. It was really his negligence which was the cause of the accident, the employer being also liable only because it has a duty to institute a system of work to guard against such negligence by employees, and had not done so. In these circumstances, I would apportion responsibility for the plaintiff's injury equally to the plaintiff and the defendant.

The Effect of Astley v. Austrust Ltd

It was argued on behalf of the plaintiff, however, that so for as the plaintiff's claim was for damages for breach of contract, no apportionment was to be made, and the defendant was solely responsible for the plaintiff's loss. This argument relied on the recent decision of the High Court in Astley v. Austrust Ltd [1999] HCA 6, delivered on 4 March 1999. That case involved an action against a firm of solicitors for a failure to take reasonable care in the performance of their retainer, something which is actionable both in tort and in contract: Henderson v. Merrett Syndicates Ltd. [1995] 2 AC 145, adopted by the High Court in that case. The court reinstated a finding by the trial judge that there was contributory negligence on the part of the plaintiff, but the majority held that the South Australian statute providing for apportionment in the case of contributory negligence, s.27A of the Wrongs Act 1936, did not apply to the claim for damages for breach of contract. Accordingly the plaintiff was entitled to judgment for the full amount of the damages.

Although there is no specific discussion in the judgment of the majority of the implication of this decision in the context of an industrial accident, there seems to be no reason in principle why the decision as to the scope and operation of the contribution legislation would not apply in this context. The majority decision contains some discussion of “policy considerations”, much of which is unrealistic in the context of a contract of employment, where for example it is hard to say that “the plaintiff gives consideration, often very substantial consideration, for the defendant's promise to take reasonable care”. It is also unrealistic to think in terms of the parties voluntarily contracting to the contrary, or introducing a contractual provision for apportionment. Nevertheless, the proposition in the majority decision of the High Court is quite general, and I can see no basis for excluding litigation of the present kind from its operation.

The equivalent Queensland provision is s.10 of the Law Reform Act 1995, formerly s.10 of the Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act 1952. It is effectively in the same terms as the relevant provision of the South Australian section. Both operate by reference to the word “fault” which is defined in both statutes to mean “negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this part [Act] give rise to the defence of contributory negligence”. These are the parts of the section which are central to the reasoning of the High Court, and in my opinion it follows that that decision is applicable to the Queensland legislation.

Liability In Contract

The relationship between an employer and an employee is essentially contractual, although generally because of various legislation there is no real freedom of contract between the parties, so that in practice the relationship is more like one of status. In most cases the difference between liability in tort and liability in contract will not matter, so there has been little attention given to the question of the origin of the liability; most of the modern cases speak in terms of liability in tort. There are, however, cases where the duty of the employer to take reasonable care to prevent injury to the plaintiff, of which the duty to take reasonable care to provide a reasonably safe system of work is a part, has been put on the basis of a term implied into the contract.

The point arose specifically in a decision in England in Matthews v. Kuwait Bechtel Corp [1959] 2 QB 57, where it was necessary to show that an injured employee could sue for damages for breach of contract as an alternative to suing in tort. The court rejected the defendant's submission that liability lay only in tort, and held that the plaintiff could sue in the alternative on the basis of an implied term in the contract of employment. This case was mentioned by Kitto J in ACI Metal Stamping and Spinning Pty Ltd v. Boczulik (1964) 110 CLR 372 at 378, but in a way which did not involve any approval or disapproval. However, in Wright v. TNT (1988) 85 ALR 442, it was referred to with approval at p.446 and p.450. At p.449, McHugh J said:

The duty was said to arise in contract and, at p.450, his Honour said that there was such an implied term in the contract of employment. A similar view was arrived at more recently by the Court of Appeal in Victoria in Stubbe v. Jensen [1997] 2 VR 439, particularly at p.443, in the course of concluding that an action for damages for breach of contract was available by an injured worker employed by the Victorian Government, in circumstances where there was no action in tort.

There have been on occasions opinions expressed to the contrary: in Jury v. Commissioner Railways (NSW) (1935) 53 CLR 273, Starke J at p.290 said that the employer's duty was not founded on any term express or implied of a contract, and there is a passage in the judgment of Lord Reed in Davie v New Merton Board Mills Ltd [1959] AC 604 at 642 which also suggests that the liability is only in tort, although this passage is perhaps more ambiguous. Nevertheless the weight of authority is clearly in favour of the existence of an action for breach of contract in these circumstances, and I think therefore that the plaintiff is entitled to damages in respect of the injuries suffered in the first incident as damages for breach of contract without making any reduction on the basis of his contributory negligence.

Second Incident: Liability

It was submitted on behalf of the plaintiff that the steps that ought to have been taken by the defendant to avoid the second accident were to instal brakes or some form of slowing mechanism on the crane, and to instruct and supervise the plaintiff in the safe operation of the crane. With regard to the former, the plaintiff was deliberately moving the crane to a different position and there was no evidence that he had taken his finger off the control button at any time prior to the second injury. There was certainly no evidentiary basis for the argument that, had the crane been fitted with proper brakes, the second accident would not have happened because the crane would have stopped in time to avoid pulling over the welder. The matter was not touched on by the plaintiff in the witness box, and the version given in Exhibit 5 is that the catching and tripping occurred as the plaintiff was preparing to stop the crane: p.4. In these circumstances, in my opinion, the question of how quickly the crane would have stopped is irrelevant.

With regard to instruction and supervision, Mr. King at p.6 of his report, Exhibit 5, refers to the crane braking system, and the proposition (which is stated twice) that the plaintiff was moving the crane towards himself The latter proposition, it seems to me, is not supported by the evidence. The plaintiff had obtained the gantry crane from down near the other end of the shed, and was walking back towards his bay with the crane. He described his position as “kind of forward but sideways”: p. 18. He cannot have been much in front of the crane, because when the crane hook snagged on the welder, the welder would have tended to drag the hook back, at least to some extent, before the hook dragged the welder over, and this was not far behind the plaintiff's position because the welder fell on his foot. The welder is not very tall: Exhibit 5, photograph 5. If shortly before the time of the accident the crane was not directly above the plaintiff, or in front of him, it was very close behind him. This was a case where the plaintiff was moving with the unloaded crane, and essentially to the side of the hook, not one where he was placing himself in the path of a load. The crane had no load, and he did not even place himself in the path of the weighted hook. There is, I think, no substance in this proposition of Mr. King.

At p.11 Mr. King said that, in the second incident, having the hook raised while standing clear of the hook's trajectory would have either prevented the welder being snagged or kept the plaintiff clear of the welder. Certainly if the plaintiff had been further to the side of the hook, or the hook had been higher, the injury would not have happened, but the employer could hardly be expected to train the plaintiff to walk a certain distance to the side of the hook when moving the crane empty along the shed. If there had been some rule that the hook had to be raised to a particular height before the crane was moved, and that height was higher than the welder, that would have avoided this particular accident, but obviously there is no particular safe height for the hook; the question depends on whether the hook is at a height sufficient to clear any obstacle to its movement. That depends on the proper identification by the operator of any obstacle to the hook, whether high or low. The plaintiff said that he was concentrating his attention on the movement of the other crane, which was at least potentially an obstacle to the supporting cable, and hence indirectly to the hook, and that would have been the case even if the hook had been raised significantly above floor level.

The real reason why this accident happened is that the plaintiff did not notice the welder in the path of the crane hook. There is no particular hazzard posed by moving the hook at a relatively low level if the path is clear, and what matters is ensuring that the path is clear, or if it is not, that the hook is raised sufficiently to clear any obstacle. In other words, the proper system of work requires the operator to take care to ensure that the hook is high enough to clear any obstacle when the crane is moving across the shed.

It is difficult however to see how any system of instruction could accommodate a requirement to operate the hook so as to avoid obstacles of which the operator is unaware. This is not a case where the plaintiff was unaware of this precaution; he said he did look, but did not notice the welder: p.44. He was taking the precaution at the relevant time, but by reference to the other potential obstacle, the other crane. There is no reason to doubt that, if he had noticed the welder in the path of the hook, he would have stopped the crane or raised the hook to clear the welder. He certainly gave no evidence to the contrary. It is not as though he was deliberately moving the crane in a way which would cause the hook to drag over the welder, because he had never been instructed to the contrary, or because there was no system of work to avoid such a manoeuvre.

For this incident, it seems to me that the approach of the Court of Appeal in Hill-Douglas v. Beverley (supra) is directly applicable. There is no reason to think that the plaintiff did not think that he was operating the crane in accordance with what would have been objectively proper operating procedures. In those circumstances the failure to instruct him to follow those proper operating procedures is irrelevant. In my opinion, the plaintiff has not shown that any relevant steps to institute a safe system of work would have made any difference to the circumstances of this accident, or that any particular instruction would have avoided it. This, I think, is a case where any such instruction would have been an example of merely warning against the obvious danger. There was no evidence that the plaintiff would have acted any differently if any particular warning had been given to him, and I am not prepared to infer on the basis of other evidence that he would have done so. It follows, in my opinion, that there was no negligence in failing to institute a safe system of work, or to warn the plaintiff against the danger of snagging the hook on an obstacle, nor was it proved that either failure was a cause of the plaintiff's injury. It was not reasonable for the defendant to provide constant supervision whenever an experienced welder was using the crane in case he failed to observe an obstacle in the path of the hook. Whether it is seen as an action in tort or as an action for breach of contract, in my opinion the plaintiff's claim in respect of the second accident fails. It is unnecessary to consider the question of contributory negligence, although it seems to me to be plain that if the plaintiff did not see the welder in the path of the crane's hook, he was failing to keep a proper lookout.

Quantum: The First Accident

After the plaintiff was struck he was thrown to one side (p. 15), found he could not get up and shouted for help: p. 16. He was taken by forklift to the first aid room, ice was put on his knee which was swollen, and he was taken in a cab to hospital where his knee was bandaged and he was sent home with instructions to make an appointment on Monday to see a doctor. After he got home he had a shower and went to bed, but shortly afterwards the defendant advised that he was expected at the Mater Private Hospital, and he got back out of bed again and went up to that hospital. When he got out of bed he found blood on the sheets, and after he was taken to the hospital he was admitted and his knee was operated on: p. 17.

According to Dr. Fairbairn's report (Exhibit 16), the plaintiff had a two centimetre wound on the lateral side of the popliteal fossa, with swelling in the region, continuing ooze from the wound, and further large swelling within the knee. X-rays showed some small bony fragments. There was also an anterior arthrotomy to remove clots of blood from the knee and irrigate the knee joint. He was in hospital for four days, after which the wound was closed and he went home. By 15 July 1994, there was a range of movement from 5° to 30°, and by 27 July the range was from 10° to 110°. He went to a physiotherapist about 10 times (p.20), but he has some continuing problem of pain in the knee, and the back of his calf is numb. On 24 August there was nearly a full range of movement, the wound had healed well, but there was some paresthesiae in the calf. At that point he was cleared to return to work. He was off work for two months, before returning to work on the night shift. Dr. Fairbairn described the knee injury as severe in a report to the Workers' Compensation Board: Exhibit 15.

The plaintiff was seen by Dr. Morgan, an orthopaedic surgeon, on 21 July 1997 for the purpose of a report: Exhibit 3. At the time the plaintiff was complaining of an aching sensation at night in the knee and pain if he walked for more than 30 minutes. There were also problems with steps, the knee occasionally gave way, he was unable to run, and there was still a loss of sensation over the back of the right calf on examination the right knee joint was tender, but there was a full range of flexion and extension, the relevant ligaments were intact. X-rays of the knee were essentially normal. Dr. Morgan thought that there was a permanent loss of use of the right leg of 7.5% as a result of the knee injury which would leave him better suited to sedentary or semi-sedentary work which avoided repetitive bending of the right knee joint or heavy carrying, although he thought most of the duties required as a fitter and welder would be within his functional limits.

Dr. Morgan saw the plaintiff again on 8 March 1999 for the purposes of an update: Exhibit 4. The problems with the knee at that stage were similar to those in 1997, although he also complained about prolonged sitting. Dr. Morgan on this occasion had thought the right knee had lost the last 100 of flexion. There was some wasting of the thigh; x-rays were still normal, and Dr. Morgan thought that as a result of the injury to the knee, the plaintiff was suffering from a chondromalicia patellae syndrome, some form of capsular anomaly in the joint, and light touch sensory deficit at the back of the calf, all caused by the injury. His assessment remained 7.5%. He thought the plaintiff's ability to engage in rigorous manual handling would be permanently reduced, and he should avoid repetitive squatting, kneeling or carrying heavy objects. He can however do most of the duties required of a fitter and welder: p.35.

The plaintiff was seen by Dr. Dickinson, an orthopaedic surgeon, on 17 January 1998 at the request of the defendant's solicitors for the purposes of a report: Exhibit 9. The report notes that up until mid-1997, the knee used to swell, but says there has been no catching, locking or giving way. Dr. Dickinson also found some wasting in the right quadriceps, a scar on the knee, which was well healed, and 10° loss of flexion, with some numbness of the calf. Dr. Dickinson assessed impairment of the right leg at 2½%, essentially as a consequence of the knee injury, and he also thought that there might be some aching from time to time and a need to sit on a stool intermittently when working as a welder.

The plaintiff said that when he returned to work after the first accident, but before the second, he could only work standing up for half an hour or an hour, and then he had to get a seat and sit down to do the job, at least for part of the time, whereas prior to the accident he usually used to stand up: p.22.

For reasons that I shall deal with later in other respects I prefer the evidence of Dr. Morgan to that of Dr. Dickinson, and consistent with that approach I prefer the assessment of Dr. Morgan of a loss of use of 7½% which in any case I think accords better with the extent of the disability to the plaintiff. Apart from the additional difficulty when doing his former job, the plaintiff is unable to run, and as a result is no longer able to play soccer, a sport he followed very actively prior to the first accident: p.21. He has tried on a couple of occasions, but his knee swelled up and he was in pain, so he was unable to cope. The knee also causes some difficulty with sexual intercourse, and it becomes sore after driving for an hour: p.21. It appears that his condition is permanent; there is, however, no evidence of likelihood of deterioration.

The plaintiff was born on 10 April 1954, (p.22) and so was 40 at the date of the accident, and is now almost 45. In all the circumstances I assess damages for pain and suffering and loss of amenities in the sum of $ 17,000 of which I apportion $5,000 to the past. This will carry interest at 2% from the date of the accident.

The plaintiff was off work until 30 August 1994 (Exhibit 10), some 8½ weeks. During the period between the first and the second accident, the plaintiff earned $57,028 net (Exhibit 20), an average of $535.50 per week. It was submitted on both sides that I should allow 8 weeks at $517 net per week, so I will allow $4,136. Interest is allowed on the excess over the net workers' compensation payments, $2,833 (Exhibit 10) at 7% for 4.6 years. Apparently the plaintiff thereafter worked as before for the defendant until the second accident. He was then off work until 6 January 1997 (Exhibit 10), but found when he returned to work that he had developed a fear of working with that particular crane, and could not perform even the light duties then offered to him, which consisted of instructing a new employee: p. 19. He gave notice, was initially asked to work out the notice period, but then the defendant agreed to let him cease work, which he did on midday on Friday: p.20. The following Monday he started work with this current employer, where he is working as a workshop manager, but on a lower rate of pay: p.20. Until 30 June 1997 he earned an average of $458.50 net per week (Exhibit 20), an average net loss of $77 per week. He is now earning about $35,000 gross per annum: p.22. This is about $506 net per week.

Although there is no psychiatric evidence, I am prepared to accept the plaintiff's evidence that he was unable to continue to work with that particular crane, and think in the circumstances it was reasonable for him to leave his employment and obtain other suitable employment. He says he is able to cope with his current employment: p.22. It is not shown however that he could not cope with work as a welder somewhere other than at the factory where this crane was used. The plaintiff spoke of the fear he had developed in terms which related it to this particular crane involved in both accidents and if this is right it does not seem to be any obstacle to his doing equivalent work somewhere else, if he could get it. Since he was able to do the work required of him after the first accident, it follows that that accident did not produce any physical obstacle to his doing that work, but it did mean that he was not as flexible and manoeuvrable as he had been in the past, and I think that that would be likely to make it more difficult for him to obtain suitable employment, even if he was able to do the job. I accept Dr. Morgan's evidence to the effect that the injury to the foot makes it more difficult for him to do heavy welding work (p. 36), and that would to some extent restrict the plaintiff's employability.

I am not persuaded that the plaintiff has lost $77 per week for the rest of his working life; he has not sought more remunerative employment, but he may well be happy doing what he is doing, and his present employment has the advantage that his wife is employed in the same place: p. 20. I think this may be part of the explanation for his having subsequently failed to obtain more remunerative employment. On the whole I do not think that the evidence establishes that the plaintiff is unable to obtain employment as remunerative as the employment he had in the past, although in view of the difficulties he has experienced since the first accident, and the evidence of Dr. Morgan, I think it probable that he would experience greater difficulty in obtaining such employment in the future than would have been the case if he had not suffered this injury.

I should say something about the question of causation in relation to the change of employment. The plaintiff returned to work after the first accident, but after the second accident was unable to continue to work with the crane. That was the cause of his change of employment. I do not think it follows however that the second accident should be treated as the only cause of that situation. If the first accident had not happened, so that the second accident had been the only accident, he presumably would have returned to work after that accident and continued to work there in the same way as he did after the first accident. It was the combination of the two accidents which caused him to be unable to continue to work with that crane, and therefore each accident is a cause of that situation. It follows that, relevantly, the first accident caused that situation, and such future economic loss as flows from it is properly recoverable as damages for the first accident.

In all the circumstances I think it is reasonable to allow $4,000 for past economic loss, on the basis of income lost as a result of his change of employment, for a period of about 12 months. That would have given him, I think, a reasonable time to settle down and find alternative employment which was as remunerative as his job with the defendant. With regard to future economic loss, I think the appropriate course is to allow him about the equivalent of six months loss of income, to accommodate the prospect of extra unemployment in the future associated with the increased difficulty in finding employment which he can do. There was no evidence of what he would now be earning if he were still working for the defendant, but doing the best I can, I will allow $14,000 on this basis. Because it is not really a calculated figure, I will not allow a further amount for loss of future superannuation contributions. I will allow a loss of past superannuation contributions at 6% of the total amount for past economic loss.

Medical, hospital payments and other expenses paid by WorkCover following the first accident total $5,194 (Exhibit 10). There is a Fox v. Wood factor in respect of the first accident on my calculations from Exhibit 10 of $661, however I will allow $20 panadeine tablets after the first accident, and travelling expenses to physiotherapy and the hospital on 13 occasions after the first accident of 35 kilometres per trip (p.25) which at the agreed rate of 39 cents per kilometre (Exhibit 2) gives $177. Special damages, therefore total $6,052, and I will allow interest at 7% for 4.5 years on $197.00.

The remaining issue is as to gratuitous care provided by the plaintiff's wife. The plaintiff said that after the accident he was not able to help with housework during the day, and could not drive a car until it was time to return to work: p.21. It is not clear how long these difficulties lasted after the first accident. The plaintiff's wife also gave evidence, although it was clear that she had great difficulty estimating with any accuracy the time she spent looking after him, or the extra time she spent doing work around the house which he otherwise would have done. The essential question is how much assistance he needed each day as a result of his injury to do things which he could not do for himself, or without assistance. No doubt immediately after the injury there was almost nothing he could do for himself. One particularly time consuming factor would have been taking him to the hospital, or physiotherapy. There were three visits to the hospital (Exhibit 16) and 10 sessions of physiotherapy (p.25), and I think it reasonable to allow 2 hours for each. I was provided with detailed calculations based on the evidence of the plaintiff's wife, which suggested a precision in this evidence which I think it did not justify. I would expect there to be a need for fairly substantial care in the first week, but for it to taper off over the period until he returned to work. Apart from the driving, I think it is reasonable to allow 3 hours a day at the beginning of the period, tapering to 1 hour a day by the end. There was also some assistance in the garden provided by the plaintiff's father in law, about 3 hours per week: p.88. I think this is reasonable. This gives a total of 162 hours which I will allow at the agreed rate of $10 per hour: Exhibit 2. This will carry interest at 4% per annum for 4.6 years.

Summary of Damages

The assessment of damages may therefore be summarised as follows:

Quantum: The Second Accident

It is necessary, notwithstanding my conclusion that there was no liability in respect of the second accident, to assess damages as well on the basis that the defendant was liable in respect of both injuries. After the second accident, the plaintiff was able to pull his foot out from under the welder, and took his boot off because he could feel his foot swelling: p. 18. He was taken by taxi to St. Andrew's Hospital where he was given morphine, x-rayed, and placed in a heel slab and sent home. He was off work for some 3½ months, until 6 January 1997: Exhibit 10. The x-rays showed undisplaced fractures of the second, third and fourth metatarsal bases: Exhibit 4.

When the plaintiff saw Dr. Morgan in July 1997, he complained of pain beneath the metatarsal heads, also over the dorsum of the fore foot, made worse with standing and walking: Exhibit 3. X-rays of the right foot at that stage showed no abnormality relevant to this accident. When seen in 1999 he had similar complaints in relation to the right foot: walking endurance was said to be 60 minutes: Exhibit 4. After seeing the earlier x-rays, Dr. Morgan was satisfied that there had been fractures, but subsequent x-rays showed that they had united. He thought that the current symptoms were associated with degenerative change caused by the fractures. He was of the opinion that there was loss of 2.5% of the right leg attributable to the injury to the foot, likely to be permanent.

Dr. Dickinson, in his report Exhibit 9, found no evidence of fracture of the right foot, and attributed the symptoms to a bony growth on the right talus, common in soccer players. Dr. Dickinson came to this conclusion because of the location of the symptoms (p.70), although in Exhibit 9 he refers to pain from the base of the toes up to the dorsum of the right ankle. The plaintiff in the witness box was not specific about where in his foot he was suffering pain, but both of the medical reports refer to a complaint of pain towards the front of the foot rather than near the ankle, which accordingto Dr. Morgan supported the connection with the fractures: p.37. In the circumstances therefore I prefer the evidence of Dr. Morgan on this matter, and accept that the plaintiff suffered a fracture of 3 bones in the right foot which fracture has healed, but is still suffering some pain in the foot, aggravated by extended use. I accept that this causes some additional loss of use of the right foot, but this is of less significance than the injury to the knee. Had I been assessing damages for both injuries I would have increased the total assessment for pain and suffering and loss of amenities by $7,500 of which I would attribute $2,500 to the past.

The plaintiff was off work for a further 16 week period for which I will allow $8,568, but after deducting the net workers' compensation payments of $8,196,1 would allow interest on $372 at 7% for 2.25 years. I have already taken into account the effects of leaving the employment with the defendant, so the other component of past economic loss, and future economic loss, would not change because of the involvement of the second accident.

Special damages consist of medical and other expenses paid by WorkCover (Exhibit 10: $1,173), the Fox v. Wood factor of $2,815 (Exhibit 10), pain killing medication which I would allow in the sum of $50, and transportation, where I will allow 12 journeys at 35 kilometres (p.25) at 39 cents per kilometre (Exhibit 2), a total of $ 164.00. This produces a total of additional special damages of $4,202. The allowance for past superannuation would increase by $514. Interest on medication and transport costs totalling $214 would be allowed at 7% for 2.25 years. With regard to gratuitous care, the plaintiff's wife thought that this would have been much the same after the second accident (p. 86), and I think that this is more reliable than her subsequent attempts to attribute particular periods to particular tasks. On the whole I think it would be better just to allow the same amount again, an additional $1,620, which would carry interest at 4% for 2.3 years. The overall effect would be to increase the assessment by $22,776, less the WorkCover payment in respect of the second accident ($12,097: Exhibit 10), a balance of $10,679, of which $372 represents interest.

In the event however, in view of the conclusions as stated earlier, there will be judgment that the plaintiff recover against the defendant the sum of $40,347, which includes $1,739 for interest. I will hear submissions in relation to the question of costs.

Comment

If I am right in my conclusion that the effect of the decision of the High Court in Astley v. Austrust Ltd (supra) is that in a case of this nature the plaintiff can avoid the consequences of a finding of contributory negligence by pleading his cause of action in contract as well as in tort, this represents a substantial change from the position that has been applied, at least in Queensland, up until now. Apart perhaps from unusual cases where a plaintiff would succeed only for breach of statutory duty, probably through the application of the reverse onus established by the Court of Appeal in Rogers v. Brambles Aust Ltd [1998] 1 Qd.R. 212, in most cases where a plaintiff will succeed in tort he will also succeed in contract, and this means that the effect of the High Court decision is that in most cases the plaintiff will be able to avoid any effective finding of contributory negligence. Although such findings are by no means always made when matters proceed to trial, they are not infrequently made, so the effect of this change is likely to be a significant increase in the total damages awarded in industrial accident cases. The flow on effect to those cases which are compromised before coming to trial is also likely to be significant, since I suspect that there are many cases where liability is compromised on the basis that the plaintiff accepts some allowance for contributory negligence. Indeed, one consequence of this decision may well be that claims of this nature will become more difficult to settle, and more likely to proceed to trial, something that is likely to result in increased legal costs, and may tend to frustrate the obvious intention of the legislature, as expressed in recent legislation obviously designed to encourage the resolution of claims of this nature by negotiation rather than by litigation.

A more important consequence however is likely to be a significant increase in the amount of damages payable, which is under the legislation covered by policies issued by WorkCover: WorkCover Queensland Act 1996 s.52. The decision would also appear to make irrelevant in most cases the application of s.314 of that Act. The implications of this additional drain on the resources of WorkCover will, I think, be obvious.

It seems a little surprising in this day and age that there should be such a difference in the outcome, depending on whether the plaintiff pleads the case in tort or in contract. Still, as Maitland pointed out in 1936 (“Forms of Action of Common Law” p.2), “The forms of action we have buried, but they still rule us from their graves”. It appears that the High Court has not shown the fortitude in the face of these jurisprudential shades recommended by Lord Atkin in United Australia Limited v. Barclays Bank Limited [1941] AC 1 at 29. Perhaps the legislature is made of sterner stuff, and may be disposed to amend s. 10 of the Law Reform Act 1995 to provide that where a defendant is liable both in tort and in contract, and the damages in tort would be reduced because of a finding of contributory negligence, the damages in contract are to be similarly reduced. That would reinstate what has been for many years understood to be the law in Queensland. It is not immediately obvious why it is in the public interest for the community to have to face the additional burdens which will flow from a significant increase in damages paid in industrial accident cases so that those employees who are injured in circumstances where they have failed to take care for their own safety should be able to recover as much in damages as those whose injuries occur without any fault on their part.