Mark David Jones and Savo Stankovich v Concrete Constructions Pty Ltd and John Holland (Constructions) Pty Ltd T/As Concrete Holland Joint Venture [1991] ACTSC 60 (15 August 1991)

SUPREME COURT OF THE ACT

MARK DAVID JONES and SAVO STANKOVICH v. CONCRETE CONSTRUCTIONS PTY. LTD. and
JOHN HOLLAND (CONSTRUCTIONS) PTY. LTD. t/as CONCRETE HOLLAND JOINT VENTURE
S.C. No. 738/88
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Negligence - Damages - Personal Injury - Motor Vehicle Accident - Contributory Negligence - Assessment - No Permanent Disability - No Issue of Principle.

HEARING

CANBERRA
15:8:1991

ORDER

There be entry of judgment for the plaintiff in the sum of $25,805.55.

The defendant pay the plaintiff's costs.

There be entry of judgment for the Third Party against the defendant.

The defendant pay the Third Party's costs.

DECISION

This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 21 July 1987. The plaintiff was working as a dogman, directing a mobile crane at the site of the new Parliament House. The motor vehicle was a front end loader, driven by an employee of the defendant.

2. The defendant has joined the plaintiff's employer as a third party, claiming from it contribution as a tortfeasor for failing to take reasonable care for the safety of the plaintiff as its employee.

3. At the time of the accident the plaintiff was directing a mobile crane, which was being used to move a security box from one position to another at the Parliament House building site.

4. It was necessary for the plaintiff to ensure that the jib was directly over the top of the load. If he did not, there would have been a danger that the load would move in such a way as to cause injury to a fellow worker who was cutting through the legs which connected the security box to the ground.

5. In order to check the position of the jib the plaintiff was standing in the roadway which is now the perimeter road within the Parliament House site. The portion of the road where he was standing was, at that time, without bitumen surface or kerbing and guttering, but was nevertheless a clearly made roadway of at least two car widths.

6. As he stood there, his attention fixed on the positioning of the jib, Mr Tanaskovic drove a front end loader, with the bucket raised in front, along the roadway.

7. He did not see the plaintiff. The bottom of the bucket, which at the time was the foremost part of the vehicle, struck the plaintiff on the left arm. He was lifted off his feet and fell to the ground. He quickly rolled out of the way of the approaching wheels of the machine.

8. The plaintiff had not heard the loader approaching. The crane motor was running at the time.

9. The loader was not travelling at an excessive speed. The plaintiff was standing in a position where he would be clearly visible to any person driving a vehicle along the road. The area was a construction site where any worker should anticipate the possibility that another worker might be standing on the road. The road was straight, and there was nothing on it to obstruct the vision of anyone driving along it towards the plaintiff.

10. The driver did not see the plaintiff at any time before he hit him. There was some argument at the hearing about the height at which the bucket was being carried. It was, I find, at a height such that it collided with the left arm of the plaintiff as he stood in the road. If the driver's vision was obstructed by the bucket, he should have altered its position so that he could see people in the road ahead. If his vision was not obstructed, he simply was not keeping an adequate lookout. In either event he failed to take reasonable care for the safety of the plaintiff. There will therefore be judgment for the plaintiff against the defendant.

11. I can see no reason why the plaintiff should have anticipated that a driver of a vehicle in that place would not be able to see him. He was standing in that position for a reasonable, indeed, a necessary purpose. I am not persuaded that in any way he failed to take reasonable care for his own safety. His damages will not therefore be reduced on account of contributory negligence.

12. Nor am I persuaded that there was any step that the plaintiff's employer could or should have taken to protect the plaintiff from the accident. I do not see that an employer should foresee that someone might well run into a workman standing in broad daylight on an unobstructed street within a construction site or that the employer was under any obligation to position another worker merely to keep a lookout for traffic that might do so. There was no evidence of any want of care on the part of the crane driver or the boilermaker, who were the other members of the plaintiff's team, whose attention was properly fixed on their own tasks.

13. There will therefore be judgment for the Third Party against the defendant on the defendant's claim for contribution.

14. The plaintiff was taken by ambulance to Royal Canberra Hospital where he was treated at the Casualty Department. He had pain in his forearm, and a large bruise developed. The ring and little fingers on his left hand were spread in a crooked position. His arm was placed in a sling, and he was given medication for pain and a certificate for three days absence from work.

15. He went home and rested and three days later, on 24 July, he consulted his general practitioner, Dr. Soo. He had difficulty extending his ring and little finger, and had diminished sensation in his left hand. Dr. Soo found a large haematoma and evidence of partial ulnar nerve damage. He prescribed physiotherapy and anti-inflammatory drugs.

16. Dr. Soo reviewed the plaintiff on 27 July, 31 July, 14 August and 25 August. Over that time he made slow progress, with residual diminished power in extension of the fingers. Dr. Soo also referred him to Dr Danta, who saw him for nerve conduction studies on 29 August, 1987. He saw him again on 18 December 1987.

17. He diagnosed a mild left ulnar nerve lesion at the elbow. He explained to the plaintiff that recovery would be slow, and cautioned him to be careful not to over use the arm. It was still reasonable for him to be experiencing pain in the muscles and soft tissues of the forearm.

18. The plaintiff was absent from work for 7 weeks. For some months thereafter he continued to experience pain and weakness in the left forearm, and difficulty in controlling the position of the two outer fingers. His course of physiotherapy extended over about a year.

19. Dr Danta reviewed him in July 1991. Vigorous use of the arm still caused pain. The weakness was only minimal. That is the present situation. The soft tissue injury is now permanent.

20. For his pain and suffering, I award the sum of $18,000, $3,000 of which relates to the future. For interest on the past component, I award $2,442.

21. The out-of-pocket expenses are agreed at $1,259.40. The loss of wages, which was not contested, was for 7 weeks at $530 a week nett, a total of $3,710.

22. He was paid workers compensation, the gross amount of which must be repaid, and the Fox v Wood component of the repayment is $394.15.

23. The total award is made up as follows:
Pain and Suffering $18,000.00

Interest $ 2,442.00
out-of-pocket expenses $ 1,259.40
Loss of Wages $ 3,710.00
Fox v Wood $ 394.15
$25,805.55

I direct the entry of judgment for the plaintiff against the defendant in the sum of $25,805.55.

24. I order the defendant to pay the plaintiff's costs.

25. I direct the entry of judgment for the Third Party against the defendant.

26. I order the defendant to pay the Third Party's costs.