John Mahon v Kd Constructions Pty Limited [1993] ACTSC 72 (30 July 1993)

SUPREME COURT OF THE ACT

JOHN MAHON v KD CONSTRUCTIONS PTY LIMITED
No. SC45 OF 1987
Number of pages - 12
Negligence - Damages Assessment

COURT

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

CATCHWORDS

Negligence - Employment accident - Plaintiff guiding formwork box into excavation - Formwork suspended from bucket of backhoe - Fracture in jib mechanism - Bucket falling and jamming plaintiff's hand against top of formwork - Foreseeable danger of bucket or load dropping - Reasonable means available to avoid danger - Failure to take reasonable care for safety of plaintiff - Backhoe operator not licensed - Not cause of accident - Scaffolding and Lifts Regulations - Not relevant.

Damages Assessment - Personal injury - Crush injury to left hand - Diesel Mechanic - No issue of principle.

Scaffolding and Lifts Act 1912 (NSW) in its application in ACT, s.17(3)

Scaffolding and Lifts Regulations (NSW) in their application in ACT, Regs 127(9), 127(12), 127(28), 127(70), 127(71)

HEARING

CANBERRA, 17-18 February and 1 April 1993
30:7:1993

Counsel for the Plaintiff: D. Wheelahan QC

R. Mildren

Instructing Solicitors: Ken Johnston Bedford and Co.

Counsel for the Defendants: R. E. Williams QC
R. L. Crowe

Instructing Solicitors: Blake Dawson Waldron

ORDER

The Court Orders that Judgment be entered for the Plaintiff for $385,404.

DECISION

MASTER A. HOGAN This is an action for damages for person injuries sustained by the plaintiff in an accident at work on 28 June 1986.

2. The plaintiff alleges that he was at that time employed as a labourer by the defendant, which had contracted to construct roadside stormwater sumps at Theodore.

3. The defendant formally put in issue the plaintiff's employment by the defendant. The plaintiff conceded that he was not paid at award rates, but by an hourly rate from which prescribed payments were deducted. No evidence was called by the defendant on this issue.

4. But I do not think that the method of payment determines the relevant relationship between the parties. It is clear from the plaintiff's unchallenged and uncontradicted evidence that in what he did and in the way that he did it he was subject to the control of the defendant. He had no particular skills for doing the job he was paid to do. It is quite clear to me that the relationship between the plaintiff and the defendant, however it might be described, was one where the defendant owed to him the duty to take reasonable care for his safety while he was working.

5. He was instructed to assist the operator of a backhoe machine to lower steel formwork boxes into holes excavated in the ground. The formwork box was suspended from the bucket of the backhoe, which was being used, in effect, as a mobile crane.

6. As the backhoe was lowering a formwork box into the hole that had been prepared for it, the plaintiff was guiding it into place, with his hands placed at the top of the box.

7. Without warning the fitting at the junction between the jib and the lift ram fractured. The bucket and jib holding the formwork dropped. The bucket grazed the plaintiff's head as it dropped, and landed on his left hand. His hand was held against the top of the formwork by the weight of the bucket and jib.

8. The plaintiff cried out, "Get this bucket off my hand."

9. The machinery was no longer capable of lifting the bucket. Instead of levering it off manually the operator slewed the bucket sideways. The movement caused extreme pain. When his hand was freed he could see that it was severely mangled.

10. The backhoe operator was not licensed to operate machinery of the type that he was using.

11. The plaintiff had not received any particular instruction about the way in which he should avoid injury while performing his duties.

12. As the case was originally pleaded, the plaintiff relied upon the alleged breach by the defendant of a large number of statutory obligations arising under the Scaffolding and Lifts Act and Regulations, including especially the lack of certification of the backhoe operator, required under s.17(3) of the Act. Many of the particular regulation pleaded were not pressed at the hearing. Those that remain, in addition to the licensing provision, are Regs 127(9), 127(12), 127(28), 127(70) and 127(71).

13. I agree with the submissions of counsel for the defendant that the mere fact that a part of the machine broke does not of itself establish a breach of Reg 127(9) or 127(12). There is no other evidence of any defect in any part of the backhoe.

14. Reg 127(28) has no application because it was not the weight suspended from the backhoe that fell, causing the injury, but the bucket and jib, which are not required by that Regulation to have additional constraint or fencing.

15. Similarly, Reg 127(70) does not apply, because the accident was not caused by any unshipping or displacement of the load being lowered.

16. Reg 127(71) does not apply because the backhoe was not a lifting device of a type defined in Reg 127(71)(a)(ii).

17. Mr James, an experienced inspector and instructor in the use of machines such as the backhoe, gave evidence that in order to obtain a certificate of competency, a driver would have to undergo instruction and testing, as a result of which he would have been aware of the danger involved in operating a backhoe while a person was under the jib or within the swing radius of the jib. I am not persuaded that had the operator been the holder of a certificate of competency he would have behaved in any way differently from the way in which he did on this particular occasion. I do not think therefore that the operation of the machine by an unlicensed operator was causally connected with this particular accident.

18. But Mr James also gave direct evidence of the foreseeable danger involved in operating a backhoe in such a way that the bucket or the boom was over any other person. The reason he gave was that the hydraulic high pressure hoses that keep the boom and bucket suspended may fail, allowing the load to drop. That evidence was not controverted in any way.

19. Dr Neil Adams was another expert called for the plaintiff. He also said that there is always the possibility of a hydraulic hose or union failing, with the consequent loss of hydraulic pressure and possible dropping of the jib and bucket. He added, "While weld fractures such as that to which Mr Mahon's injury occurrence is attributed are rarer occurrences, they must also be regarded as a possibility."

20. In his oral evidence he also referred to the risk of an erroneous operation of a lever by the operator causing the jib to lower rather than raise a load.

21. He also gave evidence that there was available a reasonable means of avoiding the danger involved in being underneath the bucket. That was by using some other means for controlling the movement and location of the formwork box as it was lowered into the hole. He described them as:

"Such methods as having ropes attached to the formwork box or
to the supporting chains to be controlled by employees standing
clear of the jib and bucket, but close enough to be able to see
clearly where the formwork box was being lowered to; using
'barge pole' type poles for pushing the formwork box from a
position of safety; or placing guiding beams or posts (such as
easily removed star steel fence posts) in position in the hole
to guide the formwork box into position and which could be
easily removed once that box was properly located."

22. The cross examination of Dr Adams was directed at demonstrating that it is quite common for workers in industry generally to be within the slew radius of cranes. Even if that be so, I do not think it affords any answer to the plaintiff's claim.

23. There was no evidence, expert or otherwise, called by the defendant on the issue of liability.

24. Even without the assistance of the experts, I am quite comfortably satisfied that there was an obviously foreseeable danger of injury to the plaintiff in permitting him to guide the formwork into the excavation while standing beneath the bucket and holding the formwork by his hands on the top of the formwork.

25. Whether the danger arose from hydraulic failure, driver error, or unanticipated fracture of a vital part of the machine does not matter, in my opinion.

26. The plaintiff should have been instructed not to guide the load in the way that he did. Reasonable alternative methods of guiding it without risk were available. They were not provided.

27. In those circumstances the defendant failed to take reasonable care for the safety of the plaintiff. As a result, when the part fractured, he was injured.

28. In the agony of the moment the operator chose to slew the bucket off the plaintiff's hand. That may or may not have increased the injury caused. But such an action was an obviously foreseeable result of the initial failure to take care. It was not such an unrelated and unconnected action on the part of the operator as to require a dissection of the plaintiff's injury into that part which was caused by the initial blow and that part which was caused by the slewing. In any event the defendant would be liable for the negligence of the operator, if he were negligent in slewing the bucket instead of levering it up.

29. There will therefore be judgment for the plaintiff.

30. There was no evidence that the plaintiff was, or ought to have been, aware of the danger that he was in. There will be no reduction in his damages on account of contributory negligence.

31. The plaintiff was taken by ambulance, first to Woden Valley Hospital, where the hand was bandaged. He was then transferred to Royal Canberra Hospital, where he was admitted under the care of Dr Peter Brown, plastic and reconstructive surgeon.

32. Dr Brown found a deep transverse palmar laceration of the left hand, associated with comminuted fractures of the necks of the 2nd, 3rd and 4th metacarpals, and a degloving injury of the soft tissue on the palmar aspect of the left thumb. The skin on the dorsal aspect of the hand was extensively abraded and contused. The palmar wound was extensively contaminated with gravel.

33. Dr Brown cleaned the wound and cut away non viable skin, muscles and tendons. I do not think it makes much different to decide whether he used regional or general anaesthesia. The wounds were loosely sutured and the hand and fingers were immobilised in a plaster of paris splint.

34. Two days later it was apparent to Dr Brown that the left index finger was not viable, but that circulation had returned to the middle finger.

35. On 2 July 1986, under general anaesthetic, he amputated the left index finger through the fracture site of the 2nd metacarpal, and debrided the wound further.

36. On 11 July 1986, again under general anaesthesia, he repaired the soft tissue defect involving the palmar, radial and dorsal aspects of the left hand with a direct abdominal skin flap.

37. On 1 August 1986 the pedicle of the skin flap was divided, and he could move his hand away from his stomach.

38. He was discharged from hospital very early in August 1986.

39. The course of treatment was very painful and uncomfortable, and the plaintiff needed constant medication for pain relief.

40. By 26 August 1986 Dr Brown noted that the soft tissue wounds were nearly healed, and made arrangements for physiotherapy.

41. In later reviews Dr Brown found that the wound failed to heal fully, because of a persistent discharging sinus both on the dorsal aspect and in the palm. X-rays suggested the presence of dead bone in the fracture site of the 3rd metacarpal.

42. On 1 October 1986, under general anaesthetic, Dr Brown removed the avascular head of the 3rd metacarpal.

43. Thereafter the amount of the discharge lessened, but the sinuses on both aspects of the hand persisted. Further x-rays were taken, which indicated the need for another operation.

44. On 23 January 1987, again under general anaesthetic, Dr Brown removed a sequestrum from the fracture line of the 3rd metacarpal and the avascular head of the 4th metacarpael.

45. By 5 February 1987 the wounds had healed and he referred the plaintiff back for more physiotherapy.

46. Dr Brown reported in February 1987 that the injury had produced substantial scarring to the flexor tendons of the middle and ring finger, and injury to their digital nerves. The result was a limited range of active flexion and diminished sensation in these two digits.

47. The thumb had escaped injury, and there was little injury to the little finger.

48. Finally, on 20 March 1987, Dr Brown operated to mobilise and shorten the adherent extensor tendon of the left middle finger. The fingers were splinted in extension until 23 April 1987.

49. Physiotherapy was then continued.

50. On 14 May 1987 there was still limited active flexion in both the middle and ring fingers and the skin flap in the palm of the hand was still moderately bulky. There was extensive scarring in the palm at the site of injury, and the damaged flexor tendons were tethered by the scarring. Only slight improvement could be obtained by further operation. Dr Brown advised him to achieve what function he could from the hand, and to have the position reassessed after about 6 months.

51. Dr Brown also agreed that the plaintiff was not capable of returning to manual work, or any work that required dexterous use of his left hand.

52. The plaintiff was born in Ireland on 20 January 1959. He left school at the age of 17, and underwent an apprenticeship as a diesel mechanic with CIE, the Irish National Transport Authority. He finished his apprenticeship at the end of 1980, and worked with CIE as a diesel fitter for about 2 years. In the course of that job he also gave instruction to apprentice fitters in the driving and operation of trucks and coaches.

53. He wanted to travel, and to make sure that he had qualifications that would be recognised outside Ireland he sat for and passed the examinations of a relevant Institute in London.

54. He came to Australia in 1983, and first obtained employment in a car garage in Kalgoorlie. He was not really suited to that work, as his experience was mainly with heavier diesel engines and machinery, rather than with car motors.

55. When that job finished after about 4 months he worked with a Kalgoorlie based exploration drilling company.

56. In December 1983 a girl he had known in Ireland arrived in Australia, and subsequently, in September 1984, she married the plaintiff. Work on the goldfields in Western Australia was not attractive for them, and they moved to Canberra.

57. He first obtained work as a labourer on the construction works associated with the new Parliament House and in other parts of the district.

58. He visited Ireland for about 10 weeks in mid 1985, and returned to Canberra with the intention of finding work as soon as possible. He intended eventually to return to his trade as a diesel mechanic, but in Canberra in those years it was much easier to find work in the construction industry.

59. However, I accept his evidence that, although he had no definite intention of doing so at any particular time, he did intend to return to his trade as a diesel mechanic. It is clear that the condition of his hand is such that he will never be able to do so.

60. In September 1987 Dr Corry, rehabilitation specialist, examined him at the request of his solicitors.

61. Dr Corry reported his complaints as follows:

"He is quite pleased with progress. The hand is pain free,
except in cold weather or with a lot of use. He has however,
lost feeling in the middle and ring fingers and occasionally
burns them. He is using the hand for an increasing amount of
activity, is able to pick things up and is able to hold a fork
and manage buttons with some difficulty. Movement of the middle
and ring fingers is however, quite restricted and he can only
obtain pinch grip with thumb to little finger."

62. His findings on examination were as follows:

"On examination he is a man of stated age. General examination
is unremarkable. Examination of his left hand reveals there has
been an amputation of the index finger through the
metacarpophalangeal joint. Full thickness skin grafting has
been applied to the distal aspect of the palm. There is major
deformity in the metacarpophalangeal joints of the third and
fourth fingers and these fingers are fairly flail with only
very weak and minimal movement. There is markedly reduced
sensation of both fingers and two point discrimination is
approximately 1.5 centimetres which is not functional. His
little finger has a full range of movement with more sensation.
There is some wasting of the musculature of the forearm.
Using American Medical Association Guidelines I would assess
the permanent impairment to be 50%.
He is permanently restricted from doing his previous occupation
but would be fit for light jobs such as driving or courier
work."

63. In October 1987 he obtained a job as a driving instructor with a local driving school. The arrangement with the driving school was that bookings were made through the school. He supplied the vehicle, petrol, insurances and expenses, and paid a commission to the driving school out of the hourly rates charged to the clients.

64. At first the work available was constant, though it involved long hours. His wife was also working.

65. Later the work decreased. In December 1990 his first child was born. In order to augment his earnings from the driving school he began driving a taxi on night shifts and weekends.

66. His taxi shifts clashed with driving school lessons. In early 1991 he founded and began to operate his own driving school, which he continues to operate. He earns the bulk of his income from taxi driving however.

67. His second child was born in October 1992.

68. In order to maintain a reasonable level of income he drives a taxi for 50 to 60 hours a week. The driving school operated at a small loss in the last financial year.

69. Driving a taxi is not an occupation that he enjoys. He did enjoy hard physical work and took pride in his skills as a diesel mechanic.

70. In summary the plaintiff suffered a severe injury to his left hand, in the treatment of which he underwent six operations, at least four of which required general anaesthesia. The course of treatment lasted about a year, and was itself very painful. He has been left with a hand with the index finger and associated part of the hand removed. The middle and ring fingers are deformed and practically useless. He can make some use of his thumb and little finger. He is right handed.

71. There is no continuing complaint of pain, but there is numbness in the deformed fingers, which are easily injured, for example, by burning.

72. He is unable to return to his trade as a diesel mechanic. There was also a laceration to his head, for which sutures were required, but which has left no permanent effects.

73. He is 34 years of age. It is 7 years since the accident. He will carry his disfigured and disabled hand for the rest of his life.

74. I would assess a reasonable compensation for his pain and suffering and loss of amenity at $75,000 of which $25,000 would relate to the future.

75. The greater part of his shock and the pain of the operations was sustained in the first year after the accident. It is not appropriate therefore to average interest over the whole period on the conventional basis. In lieu of interest on the past component of his pain and suffering I award a lump sum of $11,000.

76. The out of pocket expenses are agreed at $14,465. The plaintiff received workers compensation, totally $18,032.62, and paid tax on his receipts amounting to $3,175. The value of voluntary services provided to him is agreed at $1,764.

77. In addition to the question of liability, the aspect of the case that has been most contested is that of the plaintiff's past and future loss of income.

78. In the particulars filed in September 1992, the claim for past loss was based on the hypothesis that the plaintiff would have continued to work as a labourer until the 1991 financial year, when he would have returned to work as a diesel mechanic. On that hypothesis it is claimed that he could have earned a total, after tax, of the order of $178,000 up to February 1993.

79. From that sum were deducted his actual earnings as a taxidriver and driving instructor, estimated at about $67,000. The difference is of the order of $111,000 to February 1993.

80. The attack on that hypothesis began by accepting that the plaintiff would have continued to work, with overtime and without loss of time, until July 1989, when he might have obtained work as a fitter with ACTION. Figures paid to fitters with ACTION were in evidence. Counsel for the plaintiff disagreed with the calculation of tax that was used, but the defendant's contention gave what was called a benchmark figure of about $171,300, while the plaintiff's gave one about $7,000 more. Adding about 24 weeks at $502.00 a week net for the additional time to the date of this judgment gives a total of $190,000.

81. There are a number of variables in that hypothesis which make the process one more of judgment than calculation. On the one hand, as the work associated with the building of the new Parliament House wound down, harder times came upon the building industry in Canberra, and the plaintiff might not have been able to work in that industry all the time, and with good overtime, until he decided to return to his trade. There is no certainty that a position as a diesel fitter would have been immediately available to him.

82. On the other hand, the ACTION figures are only a guide. There is evidence that diesel fitters can earn more than those paid by a government instrumentality, for example, at Woodlawn Mine. Again, those figures only help to mark out the area of judgment, as there is no evidence that the plaintiff would have obtained, or even sought, a job at that mine. The plaintiff, though, was skilled and experienced, and may have been promoted, even at ACTION.

83. As a matter of judgment, net earnings totalling $200,000 over 7 years seems to me to be a not over generous assessment of his past earning capacity, had he not been injured.

84. Again, it is not a simple matter to fix the amount that he has in fact earned since the accident. There is considerable force in the arguments of counsel for the defendant that there are discrepancies between the income that the plaintiff declared in his tax returns and calculations based on the records that he kept of the takings in the driving school business.

85. To some extent that submission involves an attack upon the plaintiff's credit. I must say that, not only do the documents that he kept give the appearance of having been meticulously kept, so far as they go, but the plaintiff also appeared to me to be a truthful and moderate witness in all other aspects of the case. Even when cross examined about this aspect of his case he did not attempt to prevaricate. The type of record that was kept did not enable anything like an audit to be conducted on them. For what they do record, I accept them as accurate, and as telling the whole of that part of the story that they purport to record. His tax returns were prepared by an accountant on the basis of those records and what the plaintiff told him. I am comfortably sure that the plaintiff has not been in any way dishonest with his tax returns, or attempted to mislead deliberately in any way. There may well have been an element of estimation by the accountant in arriving at the figures used in the tax returns. But I am persuaded that the earnings disclosed by the tax returns are very conservative, and the plaintiff's earnings may have been greater than they disclose, without his having made any deliberate attempt at deception.

86. Some of the elements of the calculations put forward by counsel for the defendant were accepted by the plaintiff. Others he rightly categorised as estimates, with which he did not agree, but which he was in no position to contest, without more detailed study of documents, some of which he no longer had.

87. Those calculations by counsel, if I understand them correctly, would give a total of net earnings after tax of $104,193 up to 13 February 1993.

88. Counsel for the plaintiff concedes that he is presently earning about $380.00 a week after tax. To bring that figure up to date requires the addition of about $9,100, giving a total of about $113,300.

89. Allowing for the elements of uncertainty and judgment in both elements of the equation, I would award $90,000 for past loss of income earning capacity. He received $18,000 in round terms in compensation during the early part of the 7 years since the accident. I award a lump sum of $40,000 i lieu of interest on his past loss of income.

90. For the future, plaintiff's counsel concedes his present earning capacity is $380.00 net a week. The defendant submits that an average for the 6 months ending 31 December 1992 yields an estimate of $410.00 a week.

91. A position with ACTION, at the least, would pay $502.00 a week. With promotions, that figure could be $529.00 a week. A position at Woodlawn could yield $636.00 a week. The range of differences is between $90.00 a week and $256.00 a week. The finding that I have already made about his past earning capacity, namely $200,000 over 7 years, indicates a capacity of the order of $549.00 a week, giving a difference of $169.00 a week. As a matter of impression I think that the difference between what a taxidriver can earn and what a diesel mechanic can earn would be of that order. The present value of $169.00 a week for 31 years at 3 percent, reduced by 15 percent, is $152,106. The present value of $100.00 a week at 3 percent for 31 years is of the order of $105,900. Even allowing for contingencies a slightly higher figure than usual, because of the physical nature of a mechanics job, that sum must be the bottom of the allowable range. But, even allowing for the plaintiff's skills, and his capacity and motivation for hard work, an amount two and a half times that would obviously been excessive. I also think it unlikely that he will continue for the rest of his life to earn his living as a taxidriver. I think he has a capacity for better occupations than that.

92. As a matter of judgment I assess the value of his loss of future income incapacity at $150,000.

93. The total award is therefore made up as follows:

Pain and suffering $ 75,000
Interest 11,000
Out of pocket expenses 14,465
Fox v Wood 3,175
Griffiths v Kerkemeyer 1,764
Past loss of earnings 90,000
Interest 40,000
Future loss of earnings 50,000
TOTAL $385,404

94. As a global sum that figure seems to me to be appropriate.

95. I direct the entry of judgment for the plaintiff for $385,404.