Royce John Williams v Csr Limited [1994] ACTSC 6 (21 January 1994)

SUPREME COURT OF THE ACT

ROYCE JOHN WILLIAMS v. CSR LIMITED
No. SC757 of 1988
Number of pages - 6
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

CATCHWORDS

Negligence - work accident - concrete mixer - rotating agitator - unguarded - arm caught - no issue of principle.

Damages - personal injury - work accident - crush injury to forearm - no issue of principle.

Luntz, Assessment of Damages 2nd Ed 1983, 3rd Ed 1990, 5.5.9

Andriolo v G & G Constructions Pty Ltd & Ors (1989) Aust Torts Reports 80-235

HEARING

CANBERRA, 10 August 1993
21:1:1994

Counsel for the Plaintiff: R.L. Crowe

Solicitors for the Plaintiff: Pamela Coward & Associates

Counsel for the Defendant: D. Nock

Solicitors for the Defendant: Wood Fussell

ORDER

I direct the entry of judgment for the plaintiff for $71,261.00.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in a work accident on 7 July 1987.

2. The plaintiff is now aged 55. He left school at the age of 16, served an apprenticeship as a butcher, and worked at that trade for about two years. Subsequently he also worked for periods of time as an ambulance driver, truck driver and station hand.

3. In March 1985 he purchased a truck body which was adapted for carrying mobile cement mixers, and entered into an arrangement with the defendant to work as a lorry owner driver operating out of the defendant's concrete plant at Mitchell.

4. The actual mixers that were carried on the owner drivers' trucks were owned and maintained by the defendant, which reserved the right to interchange the mixers and to take any mixer off the road for maintenance.

5. While maintenance of the mixer machinery was the defendant's responsibility, the owner drivers were expressly required to keep the truck and the mixers in a clean and presentable condition.

6. On the day of the accident the plaintiff was working with his truck at the site of a dam then under construction at Tuggeranong. The defendant was operating a batching plant for mixing the concrete at the site, and the plaintiff and others were carting it from the batching plant to the place where it was to be poured.

7. Shortly before lunch time the plaintiff was informed that there would be about 20 minutes before another load would be available for him, and he took the opportunity to wash down the agitator.

8. The plaintiff stood at the top of a ladder fixed to the back of the agitator, which was rotating in an anti clockwise direction. He was directing the hose with his right hand, and steadying himself with his left hand. He was wearing a long sleeved shirt. As the agitator rotated, his right shirt sleeve was caught by a fin in the agitator, and his arm was dragged to a narrow gap between the top edge of the agitator and the front side of the loading hopper fixed to it.

9. The agitator continued to rotate while he held his arm at about the centre of the loading hopper. Someone heard his yelling and switched the machinery off. It was necessary to use thick steel bars to release his arm. The pain in his arm was excruciating. He did not lose consciousness.

10. There was a requirement to wash the agitators fairly frequently, and it was necessary to do so with the agitator in motion as the plaintiff was doing, so that cement would not be discharged with the water on to the ground.

11. There was an obvious danger that a person standing on the ladder to carry out that task might be caught by the revolving machinery and be drawn into the narrow gap between the drum and the hopper. The need for a guard was obvious. Guards were in fact available, and had been fitted to some of the agitators as long before the accident as September 1983. A works safety committee had resolved in April 1985 that all mixers should be fitted with guards. A guard was in fact fitted to the agitator that the plaintiff was using, but after the accident. There is a photograph of it in evidence. If it had been fitted the accident would not have happened. I find that in failing to fit such a guard beforehand the defendant unreasonably exposed the plaintiff to a risk of injury of which, if it was not in fact aware, it most certainly should have been aware. There will therefore be judgment for the plaintiff.

12. There was no evidence that the plaintiff was in any position to have insisted on the fitting of a guard. The construction and maintenance of the mixers was entirely a matter for the defendant. The evidence that he has asked for one to be fitted was vague, but not controverted. He was aware of the need to keep his arm clear of the rotating drum while washing down, but his concentration was on the inside of the barrel, and the washing, and as he said in cross examination, "When you're operating every day you don't take particular notice where it is."

13. I am not satisfied that he failed to take reasonable care for his own safety, and his damages will not be reduced on account of contributory negligence.

14. When his arm had been freed he was lowered to the ground in the bucket of a front end loader, and was then taken by ambulance to Woden Valley Hospital, where he was admitted, under the care of Dr James, plastic and reconstructive surgeon.

15. Dr James described the injury as a crush injury to the right forearm. There was a transverse laceration overlying the radial border of the proximal third of the forearm, with exposure to the radial artery and division of the flexor carpi radialis tendon. There were deep abrasions to various areas of skin on the forearm. Dr James immediately operated under general anaesthetic to clean up the wound. Two days later, again under a general anaesthetic, the grantulating areas were closed using split skin grafts, the donor site being the left thigh.

16. The plaintiff spent about ten days in hospital. The process of healing, especially at the donor site, was very painful.

17. When he was discharged from hospital he was still unable to use his right arm, which was in a sling. He was on prescription pain killers for quite some time and found it very difficult to sleep.

18. Dr James described his post operative recovery as satisfactory. When he saw the plaintiff on 14 October 1987 he noted that he was still suffering from decreased function of the radial nerve with pain around the joints and thumb, index and middle fingers and wrist with diminished sensation in these areas.

19. The plaintiff exercised the arm intensively in order to get movement and feeling back into it as quickly as possible. He returned to work in about September 1987.

20. The truck was operated by the plaintiff and his wife in partnership, but the only income from the partnership was derived from its operation with the defendant. Between the time of the accident and his return to work the partnership employed a casual driver.

21. When he returned to work in September 1987 he suffered a lot of discomfort and pain particularly when handling heavy extensions of shutes, and more especially in cold and wet weather.

22. In about June of 1988 he sold the truck, and in August started as a coach driver with Murray's Coaches. He found the more stable temperature beneficial, but he had some difficulty when driving vehicles which did not have power steering and also when handling heavy luggage. He continued to work with Murray's for about 2 years.

23. In October 1988 he complained of an acute onset of pain in the right forearm while turning a steering wheel at work. He consulted Dr Reading who found good movements in the arm. All the flexor tendons appeared to be intact and there was approximately a fifty percent decrease of power in the flexion of his right forearm. Dr Reading noted that the plaintiff was to be reviewed by Dr James in the following month and did not advise any treatment.

24. The plaintiff did not in fact see Dr James again until 17 March 1989, for the purpose of a report to his solicitors. He complained of a feeling of swelling and aching pain with changes in the weather and occasional shooting pain in the forearm. There was a loss of power in the arm and he sometimes lost grip when lifting a heavy object.

25. Dr James described a 15 x 5 cm ellipse of split skin graft at the site of the fasciotomy operation. There was a 5.2 cm depressed scar and graft on the volar surface of the forearm and a complex of 3.3 cm scars on the dorsal aspect of the mid forearm. There was paraesthesia in the distribution of the radial nerve and the lower forearm and hand, with diminished sensation. There was a gross loss of power in the forearm and hand.

26. Dr James advised him that his symptoms relating to the change in the weather would improve as time went on, as would the shooting pains in the forearm. He expected normal power to return to the forearm and hand through a course of muscle strengthening exercises. He expected the diminished sensation in the distribution of the radial nerve to be permanent. Except for intensive exercise to strengthen the muscles he did not suggest any further treatment.

27. On 31 July 1989 the plaintiff was examined by Dr Zielinski, plastic surgeon, in Sydney. Dr Zielinski noted the scarring and the skin graft. Power in the right hand was within normal limits. There was some sensory loss. He concluded that the plaintiff had suffered significant injury to the right forearm resulting in some sensory loss. However the arm was functionally quite good and there was no reason why the plaintiff could not continue to work as a bus driver.

28. His work with Murray's Coaches last about two years and ceased for reasons not connected with his injury. He went to Brisbane and obtained employment as a truck driver.

29. On 21 November 1990, Dr James reviewed him for a report to his solicitors. Cold weather was still causing discomfort and there were continuing symptoms of dysfunction in the radial nerve.

30. The motor function in the hand was normal, but the power in the forearm was still diminished.

31. Dr James described the situation was static and permanent. He summarised it as permanent scarring, disordered sensation in the distribution of the radial nerve and slight loss of power in the right forearm and hand.

32. Dr Mann examined him on 26 February 1991 and had tests carried out by Dr Andrews but his opinion does not differ greatly from that of Dr James. He assessed the disability of 20% of the function of the lower part of the right arm.

33. His solicitors also referred him to Dr Danta for an opinion. He was complaining of pain, weakness and numbness of the right arm. Dr Danta's opinion was also not substantially different from that of Dr James. He described the disability as slight to moderate.

34. Dr Goldrick examined him for the defendant on 15 July 1991. His assessment was that the disability was not sufficient to prevent him from working as a bus driver or truck driver.

35. Dr Zielinski's further examination on 22 July 1991 disclosed no significant change in his condition.

36. It is apparent from Dr Reading's file, and from later examinations by Doctors Mann, Danta, James and Goldrick, that the condition of his arm is permanent and that any present diminution in the plaintiff's income earning capacity is due to pathology not related to the accident.

37. The plaintiff had at times worked as a butcher. That form of employment is probably not now suitable for him. There is no real evidence that this particular disability has caused or will cause any identifiable financial loss and I therefore do not think that his income earning capacity is thereby reduced to any measurable extent. I propose to take this aspect into account as part of his general damages.

38. In summary, the plaintiff suffered a distressing and very painful crush injury to the right forearm. Two operations under general anaesthetic were necessary to repair it. The process of healing was painful. There is still significant scarring on the forearm. The scarring at the donor site is no longer significant. There is some loss of power in the hand and forearm and sensory changes resulting from the damage to the nerves of the forearm.

39. For his pain and suffering I award $50,000.00 of which no more than $10,000.00 would relate to the future. By far the greater part of his pain was in the first year. I award $7,500.00 for interest on the past component.

40. The out-of-pocket expenses are agreed at $3,793.00. There is no claim for interest on them.

41. So far as the claim for the cost of hiring other drivers is concerned, I respectfully agree with the remarks of Miles CJ in Andriolo v G & G Constructions Pty Ltd & Ors (1989) Aust Torts Reports 80-235 at 68,493, where he said,
"(but) I do not think that there is any hard and fast

principle of law and the appropriate method of approach
... has to be tailored to meet the circumstances."

42. He cited with apparent approval the following passage from Luntz, Assessment of Damages 2nd Ed 1983, where the author said,

"the law ought to recognize that the family is an economic
unit and if the component that brings in the money is
injured in circumstances where the law seeks to make good
the loss, it is the loss to the whole unit that should be
compensated."

43. The discussion and cases referred to in the 3rd Edition at 5.5.9 support that proposition.

44. The only income that the plaintiff and his wife derived came from the operation of the truck. There is no evidence that any outgoings related to anything else. The plaintiff's ability to drive the truck was the sole source of the income. The partnership was merely a way of sharing his income with his wife in a tax effective manner. I think it proper therefore to allow in full the cost of hiring alternative drivers as his loss. In round figures the gross payments shown in the wages book in evidence total $4,896.00. I would allow interest in accordance with the practice direction from, say, 1 August 1987. According to my calculations that sum is $5,072.00.

45. The total award is therefore made up as follows:-

General damages $50,000.00
Interest 7,500.00
Out-of-pocket expenses 3,793.00
Past economic loss 4,896.00
Interest 5,072.00
TOTAL $71,261.00

46. I direct the entry of judgment for the plaintiff for $71,261.00.