Pratap v PPI Corporation Pty Ltd
[2004] QDC 312
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- Unreported Judgment
- Pratap v PPI Corporation Pty Ltd[2004] QDC 312
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Pratap v PPI Corporation Pty Ltd[2004] QDC 312
Pratap v PPI Corporation Pty Ltd[2004] QDC 312
DISTRICT COURT OF QUEENSLAND
CITATION: | Pratap v PPI Corporation Pty Ltd [2004] QDC 312 |
PARTIES: | RAVINDRA PRAKASH PRATAP Plaintiff v PPI CORPORATION PTY LTD Defendant |
FILE NO/S: | 4353 of 2002 |
DIVISION: | Civil jurisdiction |
PROCEEDING: | Compensation Claim |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 30 August 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 & 17 August 2004 |
JUDGE: | P.D ROBIN QC DCJ |
ORDER: | Judgment for Plaintiff |
CATCHWORDS: | PERSONAL INJURY – EMPLOYER AND EMPLOYEE – plaintiff injured in course of employment while using a forklift to return an emptied bag dangling from the tines of the forklift onto a pallet – pallet a cheap “winged” kind – a board (or part thereof) came loose and flew into the plaintiff’s face, injuring him – it appeared the plaintiff (contrary to his denials) had driven the forklift into or onto the pallet and leant his head out of the frame surrounding the forklift driver’s seat – although the evidence overall did not support the plaintiff’s version given in the witness box, it did support his pleaded claims against the defendant in tort, contract and for breach of statutory duty – defendant held liable on all three bases – whether contributory negligence was established or excluded considered - no reduction of agreed damages to be made on this account. |
COUNSEL: | Mr G Diehm for the Plaintiff Mr W Campbell for the defendant |
SOLICITORS: | Stephen & Tozer for the Plaintiff HBM Lawyers for the Defendant |
- [1]The plaintiff sues his employer in respect of personal injuries (a broken jaw and eight damaged teeth, that is, four top and bottom) suffered in a work accident which occurred shortly before midday on 8 November 1999. The plaintiff alleges that, in the course of his employment, he was driving a forklift at the defendant’s premises, that he was attempting to use the forklift to place a recently emptied bulka bag on to a pallet and that in the course of his attempt a piece of pallet broke away and struck the plaintiff in the face. The defendant admits those allegations, subject to “attempting” being read as “intending” and denying that the piece of pallet (which admittedly broke away and struck the plaintiff in the face) broke away when the plaintiff was attempting to use the forklift for the purpose described, alleging instead that it happened when the plaintiff drove the forklift on to the pallet before he attempted to place the bulka bag there.
- [2]The evidence shows the defendant’s business is a successful one, running shifts 24 hours a day, seven days a week. One of its operations is the extruding of pipes from plastic pellets imported from Korea in 25kg bags or larger “bulka” bags of 500kg, 650kg or a tonne. The bulka bags are shipped out of Korea on wooden pallets supporting a single bag, or two bags, one on top of the other. The defendant’s storage system left one bag per pallet. A few times per day, a forklift was used to carry a full bulka bag on its pallet to a convenient location near the machine which did the work of extruding pipes. The forks or tines of the forklift were then removed from the pallet and inserted through handles at the top of the bulka bag, one on each side, extending more or less the whole width, so that each of the tines passed through both handles. The bag was then raised by the forklift, so that it dangled from the tines, and transported to hang above a hopper or bin feeding the machine. The operator would then undo ties which had been used to close the bottom of the bulka bag, releasing the plastic pellets.
- [3]The next part of the operator’s task was essentially one of clearing up. Even if the bulka bags and their pallets were put to some other use, they had to be removed from the area in question. The system adopted was to return the bulka bag to its particular pallet, by driving the forklift back to it, empty bulka bag dangling from the tines. The bags being of some flexible material, they would hang lower (and necessarily limit the forklift driver’s vision more) than when full. The bag would then be lowered on to the pallet, the tines of the forklift withdrawn from its handles, prior to being inserted in the conventional openings in the pallet, so that the unpacked bulka bag and pallet could be transported away by the forklift.
- [4]The foregoing indicates the defendant’s system. While it represents a practical way of using a forklift to carry out a particular task, it seems to me an unusual use of a forklift, and one involving obvious risks. I cannot think that the use of a forklift in circumstances where the driver’s field of vision straight ahead is impeded by a dangling load is to be recommended in ordinary circumstances. The driver has insufficient vision of where he or she is heading. In the special circumstances, the operation may be defended. It happened relatively infrequently, and while underway would have been obvious to other employees, who would no doubt keep well clear of a forklift operated by a person unable to keep a proper lookout. The distances to be travelled in this problematic fashion involved no more than a few metres. The operator would no doubt have a good memory of where the pallet had been lowered in the first place, and rely on that memory in aid of what he or she could see to manoeuvre the forklift back there after it had been reversed away from the bin of the machine. The operation was so designed that the forklift must return to the pallet, moving forwards with the tines more or less directly above the pallet. One of the problems created by the fabric of which the bulka bags were made and the rough nature of the pallets is that the raising of the bag might lead to the pallet’s moving if something caught on something else.
- [5]The defendant pleads that the only untoward aspect of the matter, alternatively contribution to the suffering of the injury complained of lay in the plaintiff’s:
“(a) choosing a method of performing the task of placing the empty bulka bag onto the pallet, namely by driving the forklift in a forward direction with its tines elevated and with the bag raised and obscuring his vision, which he knew or ought to have known to be an unsafe method;
- (b)choosing a method of performing the said task which involved an avoidable risk, namely the risk of the forklift driving over the pallet;
- (c)failing to obey the Defendant’s instructions not to drive the forklift whilst any part of his body protruded beyond the frame of the forklift, in this case the Plaintiff’s head;
- (d)failing to obey the Defendant’s instructions not to drive the forklift in a forward direction whilst its tines were elevated and when its load obscured his forward vision;
- (e)failing to obey the Defendant’s instructions to drive the forklift in a reverse direction whilst its tines were elevated and whilst it was carrying a load which obscured his forward vision;
- (f)failing to keep a proper lookout for the pallet;
- (g)lowering the tines of the forklift to such an extent that they impacted with the pallet and caused a piece of the pellet to break away.”
- [6]The last particular of contribution may be disregarded. Neither party presented a case that the physical cause of a piece of the pallet breaking away involved the tines. Otherwise, with the benefit of exposure to the evidence presented at the trial, I find it rather bold of the defendant to advance those particulars. As to (a) and (b), it was the defendant who chose the method described and criticised. Its obligation to appreciate and do something about the hazard alluded to, whether under the common law or under statute, surely far outstrips that of the plaintiff. He was a man of 33, who had been working for the defendant in various capacities for six years, the last couple as a leading hand. This gave him little seniority in a workplace to which, among the witnesses, at any rate, he was a relative newcomer. He had a forklift ticket, in common with most of the staff, it seems, and cannot be regarded as someone with the responsibility of particular expertise or seniority. As to particular (c), this relates to the defendant’s contention that the plaintiff would not have been hit had his head remained within the frame of the forklift which surrounds the driver’s seat. If the defendant gave the instructions asserted, which seems to me doubtful, it was hardly serious about them. Mr Magnabosco, whose concern was workplace health and safety, and who had a ticket himself, seemed to have no idea that there was a requirement to keep one’s head inside (see p 64 of the transcript). One would think that the practicality of keeping a lookout with a bag suspended from the tines would tempt a driver, perhaps thoughtlessly, to lean out to look around the obstacle. Mr Schofield may be seen doing that in Ex 8, a demonstration video prepared by or for the defendant. Here it may be that he did it to demonstrate the error the plaintiff is claimed to have made. As to (d) and (e), I seriously doubt that such instructions were given, or (perhaps more to the point) given seriously. The forklift must be driven in a forward direction if it is to place a full bulka bag over the hopper or bin which is to receive the contents or, at the later stage, replace the empty bag on its pallet. The evidence also referred to a supposed requirement that a forklift driver whose vision is obstructed should ensure that some other person who can see is called on to give directions. I doubt that the defendant would have been interested in providing labour for this purpose. As to (f), it seems inescapable that the plaintiff failed to see the pallet (which I think he drove into, unintentionally); however, I would be loath to characterise that as failing to keep a proper lookout in the circumstances, where the defendant’s requirements of him were that he drive the forklift from time to time with a large bulka bag suspended directly in front of his eyes.
- [7]In ordinary circumstances, what the plaintiff did would not have had the sad consequence that happened on 8 November 1999. It happened because of the nature of the pallet, a cheap product, used for reasons which are easy enough to understand. No one had a good word to say for this type of “winged” or overhang pallet, in particular, neither of the two safety experts who were engaged to try to work out how the accident had happened.
- [8]Exhibit 1 is a document produced by the defendant which speaks for itself:
“PPI CORPORATION PTY LTD
M E M O
PPI
To: PPI Forklist Drivers
NeTA
Copy: Scott Denman
From: Brian Sullivan
Date: 31 January, 2000
Subject: SAFETY HAZARD – PALLETS WITH OVERHANGING DECK BOARDS
A recent injury has highlighted that there is a danger of boards coming loose from these pallets if force is applied to the overhang. In a recent incident a driver was struck with force by one of these boards and was hospitalised. While we have not been able to discover exactly how the incident occurred, it appears likely that some part of the forklift (possibly a tyre) drove over the overhanging board applying a downward force. The board then broke on a knot and flicked up into the driver’s face. It appears that the hazard only exists when the pallet is approached from the side.
An investigation has revealed that there are a number of these pallets in use around the factory. A number of suppliers are supplying them with their stock. It is not possible to remove them totally from the premises. The following guidelines are now in place:
- PPI stock is not to be stored on pallets with overhanging deck boards. PPI or Chep pallets should generally be used. If these are not available, ask the Despatch Supervisor.
- When these pallets have been emptied they are to be removed to a quarantine area. As this may move from time to time depending on available space, again ask a member of Despatch.
- Always exercise caution when using these pallets. Never approach from a overhang side.
There may be some pallets currently being used to store stock. These should be left until empty. If you have any questions please direct them to your Supervisor or Manager.
Regards
B Sullivan (signed)
Production Manager
Proudly 100% Australian Owned--
• • • • • • “ ”
- [9]As a matter of chronology, Ex 1 was probably preceded by the undated Ex 11, which the defendant caused to be prepared:
“ RISK ASSESSMENT
USE OF PINE PALLETS WITH OVERHANG
An incident occurred recently where an employee received a severe injury to the face.
Hazard:
Striking hazard to the face due to the style of the pallets.
Cause:
A length of timber came off the pallet.
Result:
The result of this incident was a severe injury to the face, which required the employee to spend time in hospital and requires further treatments to correct the damage sustained to the face. This was a “Loss Time Injury”.
Investigation:
The Safety Officer conducted an interview with the employee involved in this incident, and found that the only explanation. Was when a sizeable amount of pressure or force was applied; either by the wheel of the forklift or the base of the mast came in contact with the overhang on the pallet. This causing the pallet to tip or the slat of timber to be come dislodged from the rest of the pallet. The company could not have foreseen any risks related to the use of these types of pallets.
Recommendations:
The use of this type of pallet should cease immediately and the use more sturdier constructed type pallets such as i.e. Chep, Loscom, and pallets which do not have an overhang on the sides.
Conclusion:
The continual of use of these pallets could possibly result in further incidents of injuries to employees, this then would create more Loss Time Injuries and add future costs to the company.”
M Schofield (signed)
Martin Schofield
Workplace Health & Safety Facilitator”
- [10]Interestingly, neither Ex 1 nor Ex 11 suggests that the driver’s leaning out of the frame was significant. As to the injunction in Ex 1: “Never approach from a overhang side”, the defence does not contend that the plaintiff was guilty of any failure here, although its case is that his approach to the pallet, which should have been at right angles, was probably at some other (unsafe) angle.
- [11]Mr Diehm, Counsel for the plaintiff, extracted a concession from one of the defendant’s witnesses that a risk assessment following on the lines of Ex 11 should have been done (to satisfy the requirements of the Workplace Health and Safety Act 1989) much earlier, indeed, before the accident. It seems to me not right to regard that as any kind of admission binding the defendant. See page 97 of the transcript. On the other hand, with the benefit of hindsight, the proposition conceded seems obvious. (No more specific reference was made to the Act or to the Workplace Health and Safety Regulation 1997)
- [12]The statement of claim asserts breaches of duty by the defendant (applied to assertions of negligence, breach of contract and breach of statutory duty) as follows:
“(1) Failing to take any or any adequate precautions for the safety of the Plaintiff whilst he was engaged upon his employment:
- (2)Failing to provide and maintain for the Plaintiff’s use a safe place at which the Plaintiff could carry out his employment;
- (3)Failing to give to the Plaintiff any or any proper or timely instructions in the safe performance of his duties and a safe method of stacking empty bulka bags;
- (4)Failing to give the Plaintiff any or any proper or timely warning of the dangers to which he was exposed whilst attempting to transport the bags;
- (5)Instructing and/or requiring and/or allowing the Plaintiff to transport the empty bags by forklift when the Defendant knew or ought to have known that the stacking of the empty bags by forklift was such that the Plaintiff was exposed to a risk of injury which could have been avoided by reasonable care;
- (1)by ensuring that such empty bags were not transported by forklift;
(2) by ensuring that winged pallets were not used within the premises.
- (6)Failing to provide any or any adequate training to the Plaintiff in the proper method of transporting the empty bulka bags;
- (7)Using pallets which were in an unsafe condition particulars of which are as follows:
(1) The timber frames were loose in parts due to insufficient nailing and/or nails having fallen out and not being replaced;
(2) Boards were overhanging the main joists which were prone to becoming loose;
(3) Using pallets which were made from very light material of insufficient strength and/or durability;
- (8)Failing to have any or any adequate pallet maintenance procedures to ensure the pallets used in the Defendant’s business were safe.
- (9)Failure to install any or any adequate safety barrier to protect the operator of a forklift such as a windshield or grid mesh type protecting barrier.”
- [13]While, perhaps, the foregoing particulars guild the lily in the customary way, in a general way, they are made out. The combination of use of light, unsafe (potentially unstable) pallets that are liable to being easily damaged and the adoption (even encouragement) of a system of forklift drivers conducting operations in close proximity to them while blinded to a greater or lesser extent was a recipe for disaster, which eventuated.
- [14]It is somewhat surprising that, in these times, when the declining number of personal injury claims that actually come to trial typically exhibit serious difficulties in the plaintiff’s way, the defendant here has contested liability so vigorously. Essentially, the defendant argues that it is for the plaintiff to prove his case, and that his evidence simply fails to do that. Mr Campbell, for the defendant, effectively summarised its point by what he said in address (p 136-137):
“He makes out his recollection about the events is really quite clear in relation to five very important aspects. The first is that the pallet was directly in front of him. That is not to one side as the defendant says is obviously the case, not that it was skewed at 45 degrees as was suggested to Dr Grigg in cross-examination. He also seems quite adamant that the forklift was stationary for a significant period of time, he says about three seconds, before commencing to lower the forks.
He is adamant that he was in the process of lowering the forks when he heard the sound come from underneath the bag. He is adamant that he didn’t drive a wheel of the forklift into or onto the pallet and he is adamant that the piece of wood came through the mast and not from the side.”
- [15]Generally speaking, Mr Campbell’s criticisms strike me as well-founded. The plaintiff has not persuaded me that his account of the way the incident happened is correct. It seems to me the plaintiff has very little idea of what happened, and perhaps understandably so. It would be a shocking experience to be hit in the face unexpectedly by a piece of wood, whether that was an entire slat from the pallet or part of one. It is common ground that this happened. There was no suggestion that Mr Pratap clubbed himself in the jaw or got someone else to do it. To the extent that he apparently evinced an interest in compensation when visited by Mr Magnabosco and Mr Denman in hospital, I would observe regretfully that that is hardly unusual in our compensation-conscious times. It does not bespeak a dishonest approach. There is evidence that he communicated to his hospital visitors (although they give very different versions as to how this happened) that he put his head out of the frame of the forklift. I think the probability is that he did put his head out momentarily, and that that is why he came to be hit. Dr Grigg’s evidence demonstrates it would be unlikely (although perhaps not absolutely impossible, as a matter of physics) that a piece of wood could make its way past the empty bulka bag, through the two vertical steel pieces constituting the “mast” of the forklift and then between the two slanting uprights of the “frame” surrounding the driver, in order to strike his head.
- [16]It seems to me the plaintiff has reconstructed an event that he does not recall in any useful detail. He may well have done so in a defensive frame of mind, leading him, for example, to deny driving over or even into the pallet, and to deny putting his head out of the frame, when he is simply unable to say anything useful. I am confident to say that the accident must have had some physical cause, and am unimpressed by the plaintiff’s apparent willingness (not shared by his counsel) to suggest it may have been some kind of magical or inexplicable occurrence. It is not possible to be satisfied that Dr Grigg got things right. It seems inescapable that a wheel, or perhaps some other low metal part of the forklift (not the tines) came into contact with the pallet, with sufficient force to cause part of it to fly up. The plaintiff is charged with attempting to improve his case (to assert he had visibility) by asserting he was dealing with a 500 kg bulka bag, not the 650 kg one the defendant says (based on records not in evidence but said to relate to the time in question) he must have had. If the defendant is right here, I would say that the plaintiff has simply offered an inaccurate, perhaps over-optimistic recollection. I am not persuaded it matters.
- [17]The big question for the Court is: what are the consequences of the plaintiff’s deficiencies as a witness? The defendant’s case is that he has failed to prove the components of the cause of action he sets up. Mr Diehm submits, correctly I think, that the totality of the evidence supports the case the plaintiff pleaded. The views of the majority of the High Court in Suvaal v Cessnock City Council (2003) 200 ALR 1, especially those expressed by Callinan J [144] to [149], have been referred to Before Mr Campbell drew my attention to this authority in a supplementary submission, I had recalled decisions of my own in which plaintiffs whose evidence seemed similarly (or more) unreliable failed, on the basis asserted, for example Royds v Norcross Press Pty Ltd (1326 of 1996, 30 April 1998) and Hatfield v Boilerland Pty Ltd (2384 of 1990, 11 December 1992).
- [18]I agree with Mr Diehm that the hallmark of such cases is that the plaintiff’s evidence determined to be unreliable stands alone. In Hatfield, the plaintiff relied upon two incidents as causes of injury to his back; the evidence of a witness who was assisting him on the first occasion was preferred; the plaintiff was working alone at the time when the second incident allegedly happened. In Suvaal, the plaintiff was adamant that he was forced off the road by an unidentified motor vehicle, whereupon the poorly maintained surface at the side of the road led to his coming off his bicycle and suffering injury. At trial, evidence regarding the unidentified vehicle was completely rejected, but it was held that the local authority bore responsibility. The New South Wales Court of Appeal and a majority of the High Court judges considered the local authority should not be held liable. Callinan J said at [144] ff:
“[144]In my opinion the Court of Appeal had no option but to allow the appeal. The approach of the master was an incorrect one. She seemed to think that, rather than decide whether the appellant had proved the case that he sought repeatedly to make at the trial and which she concluded she was bound to reject, she was obliged to find some other explanation for the accident. This was to misunderstand the nature of the task she had to perform.
[145]It was not open to the master to find that a momentary lapse in concentration caused the appellant to deviate from the bitumen surface and into the potholes. That was something that the appellant had not claimed, and which as between him and the respondent, the latter was not required to answer. Even the appellant’s first version of the accident, the one that he gave to the police officer at the scene, made no reference to a momentary or any lapse in attention.”
- [19]Here, there is evidence other than the plaintiff’s, in particular as to part of the pallet having been found separated immediately after the suffering of the injury. It is common ground that the injury was caused by a separated part of the pallet and that this happened in the course of the plaintiff’s carrying out, in the way accepted in that workplace, of one of the operations regularly performed. It is impossible to be sure that Dr Grigg or anyone else has got the mechanism by which the injury happened correct. In my opinion, this does not matter. The defendant’s breach of its duties owed to the plaintiff on three separate bases pleaded is clear. Exhibits 1 and 11, although prepared after the event, establish to my mind that what happened was always foreseeable. Without traversing the authorities about foreseeability, I would simply state that, the accident having happened (to whatever extent the detail may be unknown), it may be accounted “foreseeable”, unless it can reasonably be regarded as somehow freakish or unexpected. The present circumstances come nowhere near that. It appears inescapable that the plaintiff drove the forklift into the pallet somehow, to cause the damage to it. There is no reason to regard that as anything more than some misjudgement or inadvertence on his part. There is nothing suggesting that he was, on this occasion or generally, irresponsible or careless in the way he operated the forklift. Compare a case such as Hill v Budget Shopfitters Pty Ltd (340 of 1991, 12 October 1992).
- [20]Paragraph 3 of the Statement of Claim is:
“3. It was a term, inter alia, of the contract of employment between the Plaintiff and the Defendant and/or it was the duty of the Defendant:
(1) to take all reasonable precautions for the safety of the Plaintiff whilst he was engaged upon the said employment;
(2) not to expose the Plaintiff to a risk of damage or injury of which the Defendant knew or ought to have known;
(3) to provide for the Plaintiff safe plant and equipment;
(4) to provide for the Plaintiff a proper and safe place of work;
(5) to provide for the Plaintiff a proper and safe system of work.”
- [21]That paragraph was admitted in the defence, placing the defendant in a situation where the obligations pleaded in (3), (4), and (5) may be treated as absolute. Even (2) is not qualified in the same way as (1). The situation was similar in Kerr v Greenborough Pty Ltd (2758 of 1994, 11 October 1996) – see the reasons published at 14-15 – presenting another scenario in which the precise mechanism of the plaintiff’s accident (when he fell from a ladder) was unclear. The view was taken that contributory negligence might be found and applied in reduction of damages against a plaintiff who succeeded in contract. By a majority, the High Court in Astley v Austrust Limited (1999) 197 CLR 1 authoritatively determined that, under apportionment legislation in its then common forms, the damages recoverable by such a plaintiff were not liable to reduction for contributory negligence. The case was a South Australian one.
- [22]In Queensland, the legislature has reversed the effect of the decision in Astley. The new definition of “wrong” in s 5 of the Law Reform Act 1995:
“ ‘Wrong’ means an act or omission that –
(a) gives rise to a liability in tort for which a defence of contributory negligence is available at common law; or
(b) amounts to a breach of contractual duty of care that is concurrent and co-extensive with a duty of care in tort.”
controls the effect which s 10 of the Act now has, of permitting contribution to be taken into account. However, there are transitional provisions in s 21 which, among other things, apply the provisions existing before relevant amendments if … “(a) the wrong relates to a WorkCover damages injury sustained before 1 July 2001 for which final relief has not been granted by a court before the commencement.”
- [23]Thus, Astley applies, as was common ground. The outcome potentially, as in Tabulo v Bowen Shire Council [2004] QSC 038, may be that a reduction of damages based on contribution by the plaintiff to his own injury may be made in respect of (say) the plaintiff’s claim for breach of statutory duty, but not in respect of his claim in contract; there judgment was given for the plaintiff for $176,113.98 on the claim in contract, and $126,790.90 on his claim for breach of statutory duty. Satisfaction of the former judgment would exonerate the defendant from further liability in respect of the latter.
- [24]It was common ground that, although it has been replaced by different provisions, s 312 of the WorkCover Queensland Act 1996 as it was at the date of the accident is to be applied in respect of the present plaintiff’s claim. At that time the section was:
“312.(1)In deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence, or at all, all courts must have regard to whether the claimant has proved such of the following matters as are relevant to the claim—
- (a)that the employer had made no genuine and reasonable attempt to put in place an appropriate system of work to guard the worker against injury arising out of events that were reasonably readily foreseeable;
- (b)that the actual and direct event giving rise to the worker’s injury was actually foreseen or reasonably readily foreseeable by the employer;
- (c)that the worker did not know and had no reasonable means of knowing that the actual and direct event giving rise to the injury might happen;
- (d)that the injury sustained by the worker did not arise out of a relevant failure of the worker to inform the employer of the possibility of the event giving rise to the injury happening, in circumstances in which the employer neither knew nor reasonably had the means of knowing of the possibility;
- (e)that the worker did everything reasonably possible to avoid sustaining the injury;
- (f)that the event giving rise to the worker’s injury was not solely as a result of inattention, momentary or otherwise, on the worker’s part;
- (g)that the injury sustained by the worker did not arise out of a relevant failure of the worker to use all the protective clothing and equipment provided, or provided for, by the employer and in the way instructed by the employer;
- (h)that the worker did not relevantly fail to inform the employer of any unsafe plant or equipment as soon as practicable after the worker’s discovery and relevant knowledge of the unsafe nature of the plant or equipment;
- (i)that the worker did not inappropriately interfere with or misuse or fail to use anything provided that was designed to reduce the worker’s exposure to risk of injury.
- (2)If the claimant relies exclusively on a failure by the employer to provide a safe system of work and fails to prove the matter mentioned in subsection (1)(a), the court must dismiss the claim.
- (3)If the claimant fails to prove the matter mentioned in subsection (1)(b), the court must dismiss the claim.
- (4)If the claimant fails to prove any of the matters mentioned in subsection (1)(c) to (i), the court must—
(a) dismiss the claim; or
(b) reduce the claimant’s damages on the basis that the worker substantially contributed to the worker’s injury.
- (5)In deciding whether a worker has been guilty of completely causative or contributory negligence, the court is not confined to a consideration of and reliance on the matters mentioned in subsection (1)(c) to (i).
There follows:
Reduction of damages because of contributory negligence
314.(1)A court must make a finding of contributory negligence if the worker—
- (a)relevantly failed to comply, so far as was practicable, with instructions given by the worker’s employer for the health and safety of the worker or other persons unless the claimant can prove, on the balance of probabilities, that the failure did not cause or contribute to the worker’s injury; or
- (b)failed at the material time to use, so far as was practicable, protective clothing and equipment provided, or provided for, by the worker’s employer, in a way in which the worker had been properly instructed to use them unless the claimant can prove, on the balance of probabilities, that the failure did not cause or contribute to the worker’s injury; or
- (c)failed at the material time to use, so far as was practicable, anything provided that was designed to reduce the worker’s exposure to risk of injury unless the claimant can prove, on the balance of probabilities, that the failure did not cause or contribute to the worker’s injury; or
- (d)inappropriately interfered with or misused something provided that was designed to reduce the worker’s exposure to risk of injury; or
- (e)was at the relevant time adversely affected by the intentional consumption of a substance that induces impairment unless the claimant can prove that the adverse affect did not cause or contribute to the worker’s injury; or
- (f)has failed without reasonable excuse to attend on more than 1 occasion any safety training course organised by the worker’s employer that is conducted during normal working hours at which the information given would probably have enabled the worker to avoid, or minimise the effects of, the event giving rise to the worker’s injury.
- (2)If an injury sustained by a worker was caused or contributed to by 1 or more of the circumstances mentioned in subsection (1), the court must reduce the damages for the worker’s injury under subsection (3).
- (3)For subsection (2), the court must reduce the award of damages by at least 25% for each of the circumstances causing or contributing to the injury.”
(Section 314 is not shown to apply.)
- [25]In Martin v Mackay City Council [2001] QSC 433, Dutney J at [38] ff reached the view that s 312 was a statutory exception to the rule in Astley, and required a reduction for 10 per cent contribution by a plaintiff who succeeded in contract; his Honour reached that view while noting Atkinson J’s comment in Simpson v North Aramara Saw Mill Pty Ltd [2000] QSC 327 at [31] that “the source of liability in this case is the defendant’s breach of contract of employment with the plaintiff, which cannot be reduced on account of contributory negligence.” Atkinson J adhered to her view in Karanfilov v Inghams Enterprises Pty Ltd [2002] QSC 141, noting Martin at [91]. Dutney J adhered to his view in Campbell v CSR Limited [2002] QSC 266. In Tabulo, Cullinane J, after referring to Martin at [44], reached a contrary view, placing some reliance on Hawthorn v Thiess Contractors Pty Ltd v WorkCover Queensland [2001] QCA 223. Finally, so far as Supreme Court decisions located by counsel carried the matter, Chesterman J in Caird v State of Queensland [2004] QSC 217, referring to s 312 and the following sections, accepted that, in principle, it was open to him under those provisions to reduce the plaintiff’s damages because of contributory negligence (“… the plaintiff did not wear a cut-resistant glove. There is no doubt that such a glove would have prevented his injury.” – see [40]). In the result, no such reduction was made.
- [26]There is no occasion for me to enter the fray, so to speak, by taking a side in the face of the abovementioned decisions, which are in direct conflict. The reason is that no circumstances appear from which the statutory provisions would call for a reduction of damages. (Of course, if the matter is left to the law of contract, Astley applies.)
- [27]The plaintiff has proved against the defendant the matters set out in paras (a) and (b) of s 312(1). As to the following paragraphs of the sub-section, some of which call for proof of a negative, I respectfully agree with the comments Chesterman J made about (c) in Caird at [45]. It appears to call for identification of some final causal factor, in Caird the convulsion of a cow’s head which struck the plaintiff’s right arm while he was working in an abbatoir – which happened at a time when the plaintiff’s head was turned away as he worked on the adjacent beast, so that “he did not know and had no reasonable means of knowing that the cow behind would convulse and strike him”. On a similar approach here, the plaintiff’s attention would have been directed to his task of manoeuvring the forklift and the dangling empty bulka bag; his attention would hardly be directed towards a piece of the pallet on the ground becoming detached and flying towards his head.
- [28]Karanfilov went to the Court of Appeal, but not in a way to result in any pronouncement there in relation to the contentious issue.
- [29]Nothing about paras (g), (h) or (i) in s 312(1) is “relevant to the claim” here. Comforted by Chesterman J’s approach, I find that (c) has been proved. Paragraph (d) probably does not apply, as the “circumstances” are not of the kind described. Paragraph (e) is one which, on one approach, no worker/plaintiff could ever establish: any injured worker might have avoided injury by failing to turn up for work. The paragraph presumably contemplates a worker engaged in a particular work task with all of its ramifications and complications. On that basis, I think (e) is satisfied. So is (f), which directs attention to a particular form of words (“inattention, momentary or otherwise, on the worker’s part”), which I take to be the equivalent of the “misjudgement” I have alluded to elsewhere. For the sake of completeness, although little was said about s 314, those circumstances requiring a finding of contributory negligence set out in sub-s (1) do not exist here.
- [30]The result is that the plaintiff succeeds in his claim. The parties are to be commended for resolving quantum issues. The Court has not been advised of any detail otherwise. The parties will have the opportunity to consider these reasons and make such submissions to the Court as they think appropriate, to assist the Court in formulating suitable orders to be made to dispose of the proceeding.