Sharp v Cairns Regional Council
[2013] QDC 14
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- Unreported Judgment
- Appeal Determined (QCA)
- Sharp v Cairns Regional Council[2013] QDC 14
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Sharp v Cairns Regional Council[2013] QDC 14
Sharp v Cairns Regional Council[2013] QDC 14
DISTRICT COURT OF QUEENSLAND
CITATION: | Sharp v Cairns Regional Council [2013] QDC 14 |
PARTIES: | RAYMOND SHARP (Plaintiff) v CAIRNS REGIONAL COUNCIL (Defendant) |
FILE NO: | 195 of 2011 |
DIVISION: | Civil |
PROCEEDING: | Claim |
ORIGINATING COURT: | District Court, Cairns |
DELIVERED ON: | 6 February 2013 |
DELIVERED AT: | Cairns |
HEARING DATE: | 19-20 November 2012 and 25 January 2013 |
JUDGE: | Everson DCJ |
ORDER: | That the defendant pay the plaintiff $51,553.35. |
CATCHWORDS: | PERSONAL INJURY – LIABILITY – QUANTUM OF DAMAGES – BREACH OF DUTY – DUTY OF CARE – where plaintiff was injured in a work accident – where plaintiff sustained severe injuries to his left hand – where injury suffered to ring and little fingers – whether defendant breached duty of care to provide safe system of work – employment as a gardener mowing a median strip – whether witches hats and signs should have been used. McLean v Tedman (1984) 155 CLR 306 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
COUNSEL: | Mr R.A Myers Mr W.D Campbell |
SOLICITORS: | Shine Lawyers for the plaintiff Bruce Thomas Lawyers for defendant |
Introduction
- [1]In this proceeding the plaintiff claims damages for personal injuries sustained when, in the course of his employment as a gardener with the defendant, he injured his left hand while operating a lawn mower in Sheridan Street Cairns on 20 May 2009.
Liability
- [2]The plaintiff gave evidence that early in the afternoon of 20 May 2009 he was mowing the narrow median strip in Sheridan Street adjacent to Munro Martin Park when he noticed that a spring had become detached from the top of the deck of the mower. Believing that it was a hazard he leaned forward and to his left to pick it up. As he did so a car horn sounded which he “perceived was very close”, startling him.[1] This caused his right hip to impact on the left side of the handle of the mower and push the mower to the left and over his left hand resulting in partial amputations of his ring and little fingers (“the incident”).
- [3]At the time of the incident the plaintiff was mowing in a northerly direction. An Accident Investigation Report commissioned by the defendant records that it occurred “less than 1.2m from the traffic travel path”.[2] Initially the plaintiff gave evidence that the car horn had sounded from behind him, however under cross examination he conceded that at the time the incident occurred he was looking straight down and that he had no idea of the direction of travel or precise location of the vehicle in question.[3]
- [4]On 25 January 2013 I gave the defendant leave to reopen its case and call further evidence relating to the incident. Following a media report of the case, Mr Monteforte, an insurance broker who had worked in the vicinity, approached the defendant’s solicitor after the trial initially concluded. He gave evidence that he witnessed the incident from the western footpath of Sheridan Street to the north of where he says it occurred.[4] Although he claimed to have an unobstructed view of the incident, Mr Monteforte conceded that the view he had was on a significant angle some distance away across a busy thoroughfare. Mr Monteforte gave an account of the incident generally consistent with that given by the plaintiff save that he was adamant that he did not hear any car horn sound and he maintained that he would have noticed a horn had it sounded.[5] The loudness and duration of the blast from the horn was not explored with the plaintiff. The passage of over three and a half years since the incident, combined with the distance Mr Monteforte was from the plaintiff are such that I prefer the evidence of the plaintiff in this regard. Indeed I found the plaintiff to be an honest and reliable witness generally. I therefore find that the plaintiff was startled by the sounding of a car horn at the relevant time and that the incident occurred in the manner described by him.
- [5]Mr McDougall, an engineer with expertise in occupational health and safety risk assessment also gave evidence. In his report[6] he identified a number of deficiencies in the conduct of the mowing task leading to the incident. These included the defendant not requiring a formal risk assessment be undertaken by workers before commencing mowing, not requiring workers to only mow facing oncoming traffic and not having a routine inspection system for mowers.
- [6]The plaintiff was, however well aware of the risks posed by traffic when mowing and by the mower itself. He had done a number of courses dating back to 20 July 2000 which addressed various aspects of occupational health and safety including roadwork signage and traffic control.[7] He described the mowing of the median strip leading up to the incident as a small job for which he and his fellow workers including his ganger, whom he described as his boss, did not bother to place traffic control devices such as signs and witches hats as they did for jobs which took much longer.[8] In these circumstances the failure of the defendant to require the plaintiff to undertake a formal risk assessment before he commenced mowing the median strip appears of no consequence. In any event there is no evidence before me that the plaintiff would have undertaken the task any differently if he had done so.
- [7]The absence of a requirement that workers only mow facing oncoming traffic is not relevant to the causes of the incident as the plaintiff was facing downwards at the time he was injured and the vehicle which sounded its horn could have been travelling in either direction. There is also no evidence before me to suggest that the spring became detached from the mower because of a lack of maintenance, rather it appears to have been a random event. These and other various alleged shortcomings in the way the defendant conducted its mowing operations lack the necessary proximate connection between the defendant’s conduct and the resulting injury to give rise to a cause of action.
- [8]What does satisfy the above requirement is the failure of the defendant to insist that there be adequate separation between a worker mowing the median strip and adjacent traffic. In his report Mr McDougall notes that the traffic speed limit at the location where the incident occurred was 60 kilometres per hour and that the standard set out in the Manual of Uniform Traffic Control Devices required the placing of warning signs and the placing of cones or bollards along the kerb line.[9] Sheridan Street is the major northerly thoroughfare in Cairns and there are several lanes either side of the median strip where the incident occurred including the start of a turning lane.[10] In these circumstances Mr McDougall went further, stating in his evidence “a man mowing adjacent to a traffic flow at 60 kilometres an hour where he is less than a metre away from that traffic flow, I would say that’s an unacceptable risk”.[11] In his report he stated that a lane closure was an appropriate response to the risk.[12]
- [9]Although framed as an action in both tort and breach of contract, the genesis of the plaintiff’s case against the defendant is in negligence. The first issue which arises is whether the defendant breached the duty of care it owed the plaintiff to provide him with a safe system of work. The manner of the plaintiff’s mowing of the median strip must have given rise to a foreseeable risk of injury to the plaintiff. In Wyong Shire Council v Shirt Mason J stated[13]:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have…
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable”
- [10]
“The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer..”
- [11]The risk of the plaintiff being injured when working in such close proximity to a number of vehicles lawfully travelling at up to 60 kilometres per hour was foreseeable. This is presumably why he was provided with signs and witches hats[15] and instructed on their correct use.[16] In this regard it is worth noting the observations in McLean v Tedman that in such circumstances a foreseeable risk of injury can arise from the possibility of negligence on the part of a motorist.[17] The defendant breached its duty to the plaintiff in failing to ensure that appropriate signs and traffic control devices were used to provide a safe buffer between the immediate area where the plaintiff was mowing and the traffic in the vicinity. I accept the evidence of Mr McDougall that such a buffer should include a traffic lane.
- [12]I am of the view that the sounding of the car horn, which I find occurred in the immediate vicinity of the plaintiff, caused the incident. The plaintiff’s evidence in this regard which, together with the Accident Investigation Report, shows he was reaching downwards and closer to the traffic approaching him from behind at the point where a turning lane began at the time the incident occurred.[18] Had there been a safe buffer between the plaintiff and the adjacent traffic, I find that he would not have been startled, come into contact with the handle of the mower and injured himself.
- [13]Contributory negligence was not pressed by the defendant. It was not submitted that the defendant was himself negligent in picking up an object in the vicinity of a running mower and on the facts before me contributory negligence, although pleaded, does not arise.
Quantum
- [14]The plaintiff was born on 27 December 1950, and immigrated to Australia when he was 14 years of age. He was educated to year 10 and has a good work history in various unskilled and semi skilled capacities. He commenced his current employment on 9 February 1999. He impressed me as a competent and reliable employee who enjoyed his work with the defendant.
- [15]The plaintiff was examined by two orthopaedic surgeons, Dr Pentis and Dr Foote. Neither were called to give any oral testimony. In circumstances where the plaintiff has suffered a discreet injury, namely the amputation of “the terminal phalanges of both his left little and mid fingers”[19] it is agreed by the parties that he has suffered a 7% whole person impairment. In addition to suffering considerable pain and inconvenience in the period shortly following the incident, the plaintiff also develops considerable pain when using certain machinery such as a whipper snipper or a hedging tool. He tolerates this and the pain abates after he ceases these activities. For pain, suffering and loss of the amenities of life I award $45,000.00. I further order interest on one half of this sum at 2% over 3.6 years amounting to $1440.00.
- [16]The plaintiff’s claim for past economic loss is restricted to $3974.92 paid to him by his employer during his recuperation. The defendant is a self insurer and there is no Fox v Wood component. In terms of future economic loss, the plaintiff is now 62 years of age and despite the pain and minor limitations the injuries sustained in the incident cause him, he intends to continue working in his current job with the defendant until he turns 65.[20] The plaintiff has also suffered minor problems with his left shoulder and right knee but these are not surprising given his age and the work he does. In any event they have resolved to such an extent that they do not restrict him in the course of his work.[21] Having regard to the plaintiff’s age, the state of his health and the extent of the injuries sustained in the accident in the context of his current employment situation, I am of the view that he only has a very modest claim for future economic loss in the event he loses his current employment. I assess damages for future economic loss globally in the sum of $5000.00.
- [17]Special damages incurred on the plaintiff’s behalf by the defendant in the sum of $5142.77 and a Medicare refund in the sum of $113.35 are uncontroversial. A further claim for the laying of a new floor and the cutting of a new doorway to the plaintiffs house is disallowed in circumstances where the plaintiff conceded that he could have performed these tasks himself.[22]
Conclusion
- [18]I order that the defendant pay the plaintiff $51,553.35 calculated as follows:
| General damages: | $45,000.00 |
| Interest on past component: | $1440.00 |
| Future economic loss: | $5000.00 |
| Medicare refund: | $113.35 |
| $51,553.35 |
Footnotes
[1] T1-91 lines 15-20
[2] Ex 2, Annex I
[3] T1-92 lines 1-10
[4] Ex 7
[5] T3-29 lines 20-30
[6] Ex 1 pp 54-71
[7] Ex 1 pp 96-101
[8] T1 - 34
[9] Ex 1 pp 58-61
[10] Ex 1 p 57
[11] T1-77 lines 30-40
[12] Ex 1 p 63
[13] (1980) 146 CLR 40 at 47-48
[14] (1984) 155 CLR 306 at 313
[15] T1-34
[16] T2-3, Ex 3
[17] Op cit at 313
[18] Ex 2 and T1-91
[19] Ex 5 p 4
[20] T1-79 lines 50-60
[21] Ex 6
[22] T2-7, lines 30-34; T2-11 lines 10-11