Finn v Newhams' Hardware, Doors & Controls Pty Limited [2008] ACTSC 19 (13 March 2008)

Last Updated: 7 May 2008

ROHAN FINN v NEWHAMS' HARDWARE, DOORS & CONTROLS PTY

LIMITED (ACN 008 663 269)

[2008] ACTSC 19 (13 March 2008)

EX TEMPORE JUDGMENT

NEGLIGENCE - personal injury - claim against employer - conflicting evidence - plaintiff failing to establish case - judgment for defendant

No. SC 894 of 2005

Judge: Master Harper

Supreme Court of the ACT

Date: 13 March 2008

IN THE SUPREME COURT OF THE )

) No. SC 894 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROHAN FINN

Plaintiff

AND: NEWHAMS' HARDWARE, DOORS & CONTROLS PTY LIMITED (ACN 008 663 269)

Defendant

ORDER

Judge: Master Harper

Date: 13 March 2008

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the defendant.

2. The plaintiff pay the defendant's costs.

1. The plaintiff in this action claims damages for personal injury arising out of an incident that occurred at his place of employment on 1 July 2004. The plaintiff was then 38 years old and a locksmith. He was employed by the defendant at premises at Phillip which included a showroom and counter open to the public, and also workrooms including a room called the pinning room, where the plaintiff was engaged in a task in the course of his work as a locksmith. The plaintiff's case is that, at about 2:00 pm on that date, he was using a battery-powered variable speed electric drill to enlarge a screw hole in a metal door handle, for the purpose of attaching the handle to a display panel.

2. The plaintiff's evidence is that whilst he was engaged in that task, his immediate superior, Mr Kris Andreson, came up behind him without warning, called to him, "Hi Rohan," or words to that effect, and tapped him on the right shoulder. The effect of this was to cause him to lose control of the drill, operated by a handle and trigger in the right hand. The speed of the drill was increased as the plaintiff squeezed the trigger. The bit went through the backing board and through the palm side of the plaintiff's left index finger.

4. The plaintiff's case was pleaded so as to assert negligence on the part of Mr Andreson, but also to assert that the defendant failed to provide adequate means of holding the door handle, so that the plaintiff had no choice but to grasp it in his left hand, amounting to an unsafe system of work.

5. There is no doubt that the plaintiff suffered the injury which he alleges to the index finger on his left hand, in the course of performing the task which he gave evidence about, in the room where he says this happened. But there is a conflict in the evidence as to whether or not Mr Andreson was in the room at all, and as to whether or not Mr Andreson said anything or tapped the plaintiff on the shoulder.

6. Mr Andreson denied that any such incident occurred. He was, in July 2004, employed by the defendant as, in his words, an unofficial manager. He agreed that he was effectively the plaintiff's immediate superior. Mr Andreson by the time of the hearing had left the employment of the defendant, as had the plaintiff. The plaintiff left that employment some three or four months after the injury. Mr Andreson left in late 2005 or early 2006 and now works for a security firm in Queensland.

7. Mr Andreson's evidence is that he was in his office elsewhere on the premises when he heard the plaintiff cry out in pain. Mr Andreson says that he got up and went towards where the plaintiff was working. He met the plaintiff in a corridor. He observed that the plaintiff was holding his injured hand and that there was blood on the floor. The plaintiff told him that the drill had made contact with his finger.

8. Mr Andreson denied that he had been in the same room as the plaintiff at the time of the injury. It follows that he denied that he had any conversation with or said anything to the plaintiff immediately before the injury, or that he made any physical contact with him. He maintained that he was in a different part of the workshop at the time of the injury. He was asked when he had first been told about the plaintiff's version of events. He said that he had only found out about this a week before giving evidence, although he had made a statement about the matter some time during 2007.

9. Evidence was also given by Mr Nathan Barham, who was at the time of the incident a first-year apprentice locksmith with the defendant company. Mr Barham, as it happens, now works in Queensland for the same company as Mr Andreson, though, he says, in a different branch. While conceding that he had travelled from Queensland to Canberra with Mr Andreson to give evidence in the case, he denied any conversation of a collusive nature. Mr Barham gave oral evidence generally consistent with a statement which he had given to an investigator in July 2006, about two years after the incident. At the time he gave that statement he was nineteen years old and still working in Canberra for the defendant. He said in the statement that he remembered the incident clearly. He was working in what he described as the pinning room and the plaintiff was working in the next room, which was properly called the restricted pinning room. The plaintiff was putting together a display board for the shop, which involved bolting door handles onto a display board. He could see the plaintiff in the next room through a glass partition, about waist high. He was quite specific in his statement that he recalled seeing the plaintiff with the display board resting on the workbench, overhanging it somewhat; the display board being a piece of chipboard about a metre by 1.5 metres in size. He was clear that there was no-one else in the room with the plaintiff. He could see that the plaintiff was using a battery-operated hand drill to bore holes through the display board. He recalled seeing the plaintiff with the drill in his right hand, holding the board with his left hand. He heard the plaintiff yell. He looked to his right and observed that the drill bit had made contact with the plaintiff's left index finger. He went straight across to the room where the plaintiff was working and saw blood on the floor. Mr Andreson came on the scene at about the same time and walked into the room behind him. He recalled that the plaintiff went out of the room to a rear area where there was a sink. According to Mr Barham there was no relevant conversation. The plaintiff came back to work later in the day and they worked together on the door locks of a car, a relatively urgent job.

12. In these circumstances, the Court is faced with a conflict of evidence of a stark nature between the version given by the plaintiff and the version given by Mr Andreson and Mr Barham. There are inconsistencies between the latter but not to such an extent that I suspect collusion. I take note of the fact that by the time of the hearing none of the three witnesses was still working with the defendant. Indeed, there seemed to be some bad blood in relation to the plaintiff's relationship with the defendant as his employer and also, perhaps in somewhat different circumstances, Mr Andreson's relationship with the employer.

13. The plaintiff was referred by the defendant's solicitors in November 2006 to Dr Peter Stevenson, a consultant physician, for a medico-legal report. Dr Stevenson noted in his report that the plaintiff had ceased work with the defendant six or eight months after the injury, in circumstances of some quarrel or dispute. He said that the plaintiff told him that the defendant company were not very nice people to work with and that if they had treated him with some dignity and courtesy he would not have been litigating against them. Dr Stevenson noted that the plaintiff appeared fairly angry about this.

14. Mr Andreson, who left the defendant's employ something over a year after the plaintiff, was asked in cross-examination whether it had been a friendly workplace. His response was that he was probably the wrong person to ask. He expanded on that to say that he got on well with the other employees working in the locksmith area but that relations between him and the owners of the business had been, in his expression, not the greatest. Mr Barham did not suggest that he had had any problems of that kind with the defendant company.

15. The plaintiff was taken by another employee to the Canberra Hospital for treatment immediately after the injury. The relevant records of the Canberra Hospital are in evidence. They describe the injury in terms consistent with the plaintiff's evidence but make no mention of the injury having been caused by interruption or a tap on the shoulder by a fellow employee. Counsel for the defendant submitted that I should draw some inference from that, it being the sort of incident which one would have expected the plaintiff to describe to hospital staff, and one would have expected hospital staff to have noted it. I am not satisfied that that is so. The plaintiff explained, not unreasonably I thought, that he did not tell hospital staff about it because it did not seem to him to be relevant to his treatment. Indeed, I wonder whether, even if he had described it, hospital staff would have regarded it as important enough to record in the hospital notes. One can reasonably infer that not everything that is said by a patient is recorded and that hospital staff generally record what they regard as important and relevant. One can understand that the precise circumstances of an injury like this might not be regarded as relevant to treatment. However, the upshot of it is that there is no contemporaneous documentation which supports the plaintiff's version of events.

16. There was a form completed in the workplace, called a First Aid Incident Report Sheet, but it also, to my mind, is equivocal. It describes the injury, or incident, in the following terms, "Drill bit entered finger (left hand finger next to thumb)." One could say that the space on the form could have been completed at greater length to describe the incident in more detail but it does not seem to me that I can draw any inference from the fact that the form was completed as it was, either in the plaintiff's favour or against him. I note that the form was completed by Mr Andreson, who, one might think, would be unlikely to give a detailed and expanded description of the incident which cast him in a poor light. I do not draw any adverse inference but, once again, there is no documentation which assists the Court in corroborating either the version of the plaintiff or the version of the defendant's witnesses as to precisely what happened on the day.

17. The first documentary material in which a description of the incident was given was a personal injury claim notification form completed by the plaintiff at about the time he first consulted his solicitors in September 2005; that is, a little over a year after the accident. It was put to the plaintiff in cross-examination that he had fabricated his version of the event in order to lay the ground for a claim for damages against his employer, something which the plaintiff vehemently denied. As well as seeing Dr Stevenson in November 2006, the plaintiff - for the purpose of a medico-legal report to his own solicitors - saw Dr Graeme Griffith, a consultant surgeon, in June 2007. I am unable to treat the fact that the plaintiff gave histories to those doctors consistent with his evidence in the case as any kind of corroboration, having regard to the fact that they were so long after the event, and well after the commencement of the present proceedings.

18. Although the plaintiff made some concessions in cross-examination which might be regarded as generally to the detriment of his credibility, I was unable to conclude from his demeanour or any concessions drawn from him that he was doing anything other than giving truthful evidence, to the best of his recollection, of the events of July 2004. Equally, there was nothing about the evidence of Mr Andreson or Mr Barham which caused me to doubt that they were each doing the best they could to give truthful evidence about their recollection of the events. The plaintiff has an incentive to give evidence which might result in his obtaining an award of damages, whereas the defendant's witnesses no longer work for the defendant and do not appear to have any incentive for giving untruthful evidence.

19. That factor is not enough to influence me to make a formal finding of fact to the effect that the plaintiff's version of events is untrue; still less, that his evidence was deliberately false. However, the plaintiff in a civil action bears the onus of proving his case to the satisfaction of the Court, and this is a case where I am simply not satisfied, on the balance of probabilities, that the plaintiff's version of events is the correct one. It is a finely balanced case and I am equally not in a position to make a finding that the version of events given by Mr Andreson and Mr Barham is the correct one. In the circumstances, the plaintiff fails to make out his case to the requisite standard. If that were the end of the matter, the plaintiff would fail.

20. As I said earlier, the case was also pleaded as one of an unsafe system of work. Counsel for the plaintiff submitted in address that, even if I were not satisfied of the plaintiff's version of events, as to Mr Andreson's behaviour having been the cause of his injury, it would still be open to the Court to find that the injury was caused by the adoption by the defendant of an unsafe system of work. In that regard counsel for the defendant submits that the plaintiff was an experienced tradesman carrying out a task of no particular novelty, and that, in effect, he was sufficiently experienced and senior to be expected to take responsibility for his own system of work within the company.

21. In this case there is no specific evidence of any other system of work which the employer should have adopted. As counsel for the defendant submits, the case was presented to the Court as one based on the incident involving Mr Andreson rather than as a general unsafe-system-of-work case. I must accept that the plaintiff injured his finger generally in the circumstances described. The only area where I am left unsatisfied is that it happened because of any conduct on the part of Mr Andreson. It would have been possible, no doubt, to have presented the case as one based on an unsafe system of work in general terms; however, that was not the way the case was presented to the Court. I do not say that as implying any criticism of the legal representatives of the plaintiff, who presented the case in accordance with the instructions they had from the plaintiff as to how the accident happened. In the event, the plaintiff has not been able to establish his case on the balance of probabilities and I am not satisfied that the evidence would permit, in those circumstances, a finding in his favour on general system-of-work principles.

22. If I had found in the plaintiff's favour, I would have awarded him an amount for general damages of $40,000. I do not propose to go into any detail as to the reasons for that. Both medical reports explain the ramifications of the injury and the disabilities with which the plaintiff has been left. I would have apportioned that amount equally between past and future, and awarded interest of $2,000. I would have awarded a buffer for the chance that the injury might ultimately have resulted in some loss of earnings in the future, of $5,000. Thus I would have awarded a total of $47,000. However, for the reasons I have given, there will be judgment for the defendant.

23. I order that the plaintiff pay the defendant's costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 13 March 2008

Counsel for the plaintiff: Mr FG Parker

Solicitors for the plaintiff: Maliganis Edwards Johnson

Counsel for the defendant: Mr RL Crowe SC

Solicitors for the defendant: Sparke Helmore

Date of hearing: 13 March 2008

Date of judgment: 13 March 2008