Re Fairway Engineering (ACT) Pty Limited v James Anthony Murphy and Brambles Holdings Limited [1984] FCA 37 (2 March 1984)

FEDERAL COURT OF AUSTRALIA

Re: FAIRWAY ENGINEERING (A.C.T.) PTY. LIMITED
And: JAMES ANTHONY MURPHY AND BRAMBLES HOLDINGS LIMITED
No. ACT G32 of 1983
Master and Servant

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Kelly J.
Neaves J.

CATCHWORDS

Master and Servant - Personal injury to employee suffered in the course of loading of pipes on trailer - Whether negligence on the part of crane driver - Whether injured employee guilty of contributory negligence - Whether damages excessive - Whether employer of crane driver entitled to contribution from employer of injured employee.

Law Reform (Miscellaneous Provisions) Ordinance 1955 Part IV.

Wilson v. Peisley (1976) 50 A.L.J.R. 207.

HEARING

CANBERRA
2:3:1984

ORDER

1. The appeal and cross-appeal be dismissed.

2. The costs of the appeal be paid by the appellant and the costs of the cross-appeal be paid by the firstnamed respondent.

DECISION

James Anthony Murphy as plaintiff sued Brambles Holdings Limited ("Brambles") and Fairway Engineering (A.C.T.) Pty. Limited ("Fairway") as defendants in the Supreme Court of the Australian Capital Territory for damages for personal injuries alleged to have been received on 24 November 1977 when certain pipes were being loaded by a mobile crane on to a vehicle for transport to another site. Brambles and Fairway each claimed contribution or indemnity from the other in respect of any damages they might be ordered to pay to Mr. Murphy.

The Supreme Court dismissed the claim against Brambles but ordered that judgment be entered against Fairway in the sum of $168,750. Damages were assessed at $225,000 but were reduced by 25 per cent on account of contributory negligence on Mr. Murphy's part. The claims for contribution or indemnity were dismissed.

From that judgment Fairway has appealed to this Court. The primary ground of appeal is that the Supreme Court was in error in holding Fairway guilty of negligence. Alternatively it is said that, if Fairway was guilty of negligence, it was entitled to contribution or indemnity from Brambles. Afurther ground of appeal is that the amount of damages awarded is excessive.

Murphy has cross-appealed on the ground that he should not have been held guilty of contributory negligence.

At the relevant time Mr. Murphy was employed by Brambles as its manager for the Australian Capital Territory. As such he had overall responsibility for the company's operations in the Territory. Brambles had contracted with the owner of certain pipes, which were located on vacant land near the corner of Fairbairn Avenue and Truscott Street, Campbell, to move the pipes to a different location some kilometres distant. The pipes were of steel encased in concrete and bitumen coated. Each pipe was approximately 40 feet in length with a diameter of 4 to 5 feet and weighed approximately 3 1/2 tonnes.

To fulfil its contract Brambles had to load the pipes on to a vehicle, transport them to the other site and unload them at their destination. For the purpose of loading and unloading the pipes Brambles hired a mobile crane from Fairway. The driver of the crane, Mr. Rowley, was an employee of Fairway.

The vehicle used to transport the pipes belonged to Brambles. It was an articulated vehicle consisting of a prime mover and a table top trailer. A distance of some 6 feet separated the back of the driver's cabin on the prime mover and the front end of the trailer. The driver of the vehicle, Mr. Cahill, was an employee of Brambles and subordinate to Mr. Murphy. Mr. Cahill also acted as crane chaser.

The method of operation used in loading the pipes was to drive the articulated vehicle on to the vacant land on which the pipes were situated and to position the crane at right angles to it about half way along the length of the trailer and distant some 6 to 8 feet from it. The crane was of a type in which the crane-driver's cabin rotated with the jib of the crane. Each pipe was lifted by means of two nylon slings placed around the pipe, the slings being approximately 6 inches wide and located 5 to 8 feet apart. Mr. Cahill positioned the slings and the load was raised slightly to check that it was properly balanced. The crane was then slewed in such a way as to bring the pipe to a position parallel to the trailer of the articulated vehicle. The pipe was then steadied by Mr. Cahill and placed on the trailer. The slings used to raise the pipes were such that, once raised from the ground, a pipe was free to swing about the axis formed by the hook of the crane and the centre point of the pipe. There was no way in which this swinging motion could be controlled or arrested by the crane driver. It could have been controlled by the use of tag lines attached to each end of the pipe but their use would have required the employment of another person.

The only persons who could speak as to what occurred on the occasion in question were Messrs. Murphy, Cahill and Rowley. Messrs. Murphy and Rowley gave evidence but Mr. Cahill was not called as a witness.

Mr. Murphy's evidence was that at about 10.00 a.m. on 24 November 1977 he drove along Fairbairn Avenue on his way to the Canberra airport to attend a meeting. As he approached the site of the pipe-loading operations he observed that a pipe being loaded was swinging rapidly in a clockwise fashion because of the wind that was blowing and that Mr. Cahill was having difficulty in steadying the pipe to enable it to be placed on the trailer. He turned his vehicle into Truscott Street and stopped. He alighted from his vehicle and walked some 60 metres to a position in front of the prime mover. By that time the first pipe had been placed on the trailer, the slings had been removed from that pipe and positioned around the next pipe and that pipe had been raised some 3 feet from the ground and had been moved in an arc to a position parallel to the trailer. Mr. Murphy says that the pipe was brought too far forward so that one end of the pipe, instead of being level with the front end of the trailer, was level with the front of the prime mover. The pipe was also swinging in the wind with an anti-clockwise motion.

Mr. Murphy says that he perceived that Mr. Cahill was unable to steady the pipe which, if it continued to swing, was likely to strike and damage the prime mover. He, therefore, ran forward and took hold of the front end of the pipe and steadied it. The pipe was then steady and parallel to the trailer but too far forward to permit of its being placed on the trailer. He then moved to his right from his position holding the front end of the pipe and positioned himself between the pipe and the prime mover 3 to 4 feet from the end of the pipe. He was then standing near the front wheel of the prime mover with his hands in contact with the pipe steadying it. The pipe was then about waist high.

According to Mr. Murphy the crane-driver should then have eased the pipe back with a smooth motion until its front end was in a position where the pipe could be lifted and placed upon the trailer. The pipe commenced to move in the correct direction but then suddenly jerked upwards to above shoulder height. The wind then caught it and swung the front end of it in the direction of the prime mover. Mr. Murphy strained against it. He placed his feet first on the rim of the front wheel of the prime mover and then on the wheel studs which were about 18 inches above the ground. He continued to strain against the pipe with his arms outstretched. He became almost horizontal. He felt a severe pain in his right shoulder. He blacked out momentarily and found himself face downward on the ground. He then saw that the pipe had been placed on the trailer. He said that these events had taken place within no more than 5 minutes from the time he alighted from his motor vehicle.

Mr. Rowley said that Mr. Murphy came to the site on more than one occasion during the loading operations which commenced on 23 November 1977 or possibly 22 November 1977 and that when present he assisted in those operations by steadying pipes before they were placed upon the trailer. He did not recall anything unusual about the weather conditions on 24 November 1977 but conceded that in a statement made on 2 September 1982 he had stated that the conditions on that day were very windy. In that statement he also said that he could recall seeing both Mr. Cahill and Mr. Murphy assisting in the loading of the pipes on 24 November 1977. He said that a wind of 15 kilometres an hour would not have made the job hazardous. He did not recall any occasion when a pipe swung rapidly in a clockwise direction while being lifted and slewed into position on the trailer. Although he could see both ends of a pipe from the driving position of the crane, he would normally watch Mr. Cahill who was acting as crane chaser. He did not see Mr. Murphy place himself in a position to hold the pipe steady to stop it from swinging and possibly damaging the prime mover. He agreed that he could have slewed the pipe too far forward but he did not remember jerking the jib of the crane suddenly upwards. He said he only became aware of the allegation that Mr. Murphy had been injured on 24 November 1977 some months after that date. He agreed, however, that in a statement dated 22 June 1978 he said:

"I do remember loading a pipe which slewed more than the others, Jim (Mr. Murphy) was at one end and Fred (Mr. Cahill) the other, Jim was caught between the pipe and the truck cabin.

"I saw Jim struck and moved the pipe away from Jim, I saw him, I did not hear Fred call out that Jim was in trouble."

While satisfied that Mr. Murphy's evidence could not be wholly rejected, the learned trial judge expressed himself as having grave doubts concerning the accuracy of some of it. His Honour said:

"Where it is necessary to decide what events occurred and in what circumstances, the broad thrust of Mr. Murphy's evidence is at least of assistance in forming an impression and in deciding what probably happened."

His Honour did not accept that Mr. Murphy had arrived at the site only very shortly prior to being injured but found that he had been there for some time supervising and to a limited extent participating in the loading of the pipes.

His Honour saw Mr. Murphy's case as depending upon "it being established that the method of operation of the crane was in the circumstances prevailing unnecessarily dangerous or that, even if that were not so, the crane was negligently driven at the material time". Having excluded negligence in the mode of operation adopted to load the pipes notwithstanding the windy conditions prevailing at the time, his Honour turned to the question whether the crane was negligently driven. It is desirable to set out the relevant part of his Honour's reasons for judgment. His Honour, having found that Mr. Murphy had been on the site for some time, said:

"Nor do I accept that either Mr Murphy or the crane-driver engaged in any unusual or unpredictable manoeuvre which was the direct occasion of Mr Murphy's injury. I find that the pipe which injured Mr Murphy was lifted by the crane, that the crane-jib with the pipe attached to it rotated in a clock-wise direction towards the vehicle and that the front end of the pipe continued past the trailer to a point parallel to the prime mover. The pipe then swung towards the prime mover because it was insufficiently controlled in the wind. Mr Murphy who was, as the crane-driver knew, standing in the vicinity, was hurt not by being struck by the pipe but because in his efforts to assist in controlling and guiding the pipe he caused muscular damage to his shoulders.

"In these circumstances, in my opinion, Mr Murphy's claim against his former employer, Brambles, fails. That is not to deny that it was the duty of Brambles to take reasonable care to avoid exposing each employee to unnecessary risk of injury in the performance of his allotted task or to suggest that Brambles' duty was satisfied merely by the engagement of a qualified and competent crane driver to carry out and direct the loading, assuming that such a description fitted Mr Rowley. Notwithstanding that the loading did not take place at Brambles' premises and that the crane driver was in immediate charge of the loading operations, the risk could, for the reasons I have given, quite readily have been removed by Brambles. However, Mr Murphy's voice was the voice which spoke for Brambles. It was Mr Murphy's decision that he should be at the site and as to the extent of his involvement in the loading. Further, it was Mr Murphy who, on behalf of Brambles, was responsible for the continuation of the work without the use of tag-lines. There was no fault of Brambles which went beyond or was independent of Mr Murphy's own acts or omissions: cf Armstrong v. Virenius [1981] FCA 184; (1981) 38 A.L.R. 673,674.

"It is equally clear that the crane-driver was negligent and that Fairway is vicariously liable for his negligence, which consisted in failing to exercise a degree of care and skill in the operation of the crane which was sufficient, consistently with the absence of taglines, to maintain adequate control of the pipe as it was loaded. I cannot see any basis upon which it might be suggested that the risk of injury to Mr Murphy was not foreseeable. He was known to be there and to be providing some assistance, at least on occasion. It was quite predictable that he would interfere to attempt to assist, particularly if it seemed that a swinging pipe might damage the vehicle: cf Chapman v. Hearse [1961] HCA 46; (1961) 106 C.L.R. 112. However, even if that were not so, injury to him by a swinging pipe was, in the circumstances, well within the range of foreseeability which is demanded by the law: see, e.g. The Council of the Shire of Wyong v. Shirt [1980] HCA 12; (1980) 54 A.L.J.R. 283."

Counsel for Fairway conceded that it was reasonably foreseeable that Mr. Murphy might intervene and engage in some part of the operation to assist in controlling the pipe. He contended, however, that, on the findings made by the learned trial judge, the cause of the accident was not any negligence on the part of Mr. Rowley but Mr. Murphy's voluntary intervention and his own efforts in attempting to avoid what he perceived to be the risk of a collision between the pipe and the prime mover. It was said that what Mr. Murphy did was disproportionate to the risk or peril that he perceived and that his claim should fail. In other words, being an intervener in order to prevent damage to his employer's vehicle, he did not act reasonably or justifiably in the circumstances.

It was open to his Honour to find, as he did, that Mr. Murphy had been on the site for some time supervising and to a limited extent participating in the loading of the pipes. There was evidence from which it could be concluded that Mr. Rowley was aware of Mr. Murphy's participation and it was foreseeable that he would intervene in the event that Mr. Cahill had difficulty in controlling a pipe. That being foreseeable and Mr Rowley, being aware of the windy conditions which could result in the pipe swinging, should have taken special care in operating the crane. The pipe had been moved past the front end of the trailer so as to bring it to a position where its front end was level with the front of the prime mover. It was subsequently so manoeuvred that it could be swung by the wind. It was foreseeable that it would be likely to strike the prime mover and that an employee in the position of Mr Murphy might act so as to stop this happening.

Having considered the whole of the evidence we are satisfied that there was ample material on which the learned trial judge could find that Mr Rowley was negligent in the manner in which he operated the crane and that the negligence was the cause of Mr Murphy's injuries. Giving due weight to the advantages he has as trial judge, we believe his conclusions on these matters to be correct.

It is convenient at this point to deal with the argument put on Mr Murphy's behalf that the Supreme Court erred in holding him guilty of contributory negligence and assessing his negligence at 25 per cent. On the learned trial judge's findings Mr. Murphy was well aware that the situation was one calling for the exercise of particular care having regard to the prevailing weather conditions yet he chose not only to allow the operations to continue but positioned himself in what on his own evidence must have been a very confined space between the pipe and the prime mover.

We do not see any sufficient reason to disturb the findings of the learned trial judge with regard to contributory negligence on Mr. Murphy's part or his assessment of 25 per cent.

The argument put on behalf of Fairway that it is entitled to contribution or indemnity from Brambles may be disposed of shortly. Under the relevant legislation (Part IV of the Law Reform (Miscellaneous Provisions) Ordinance 1955) a tortfeasor, in this case Fairway, is entitled to contribution or indemnity from another tortfeasor who is, or would if sued have been, liable in respect of the damage suffered as a result of the tort. In the present case Brambles was sued and was held not liable for the damage suffered by Mr. Murphy. In those circumstances there is no foundation for Fairway's claim: George Wimpey & Co. Ltd. v. British Overseas Airways Corporation (1955) A.C. 169, especially at pp. 179, 192; Brambles Constructions Pty. Limited v. Helmers [1966] HCA 3; (1966) 114 C.L.R. 213 at p. 218; Kelly v. Newcastle Protective Coating Pty. Ltd. and Andrew Cook and Sons Pty. Ltd. (1973) 2 N.S.W.L.R. 45 at pp. 51-52.

The remaining question concerns the quantum of damages assessed in respect of Mr. Murphy's injuries.

As a result of the events to which reference has been made Mr. Murphy suffered muscular strain in both shoulders. While accepting that in the period from 24 November 1977 to mid-1978 Mr. Murphy experienced some disability and discomfort, including some restriction of movement, and intermittently his problems were moderately severe, his Honour did not accept that his difficulties in that period were as severe or as frequent as Mr. Murphy claimed. By mid-1978 Mr. Murphy had lost appetite and weight and had become anxious and depressed. He became convinced that he was significantly handicapped. His increasing anxiety produced sleeplessness and his condition deteriorated. He resigned his position with Brambles in October 1978.

Two passages from his Honour's reasons for judgment should be quoted. The first is as follows -

"By October 1978, when Mr Murphy did retire, although his physical disabilities did not by any means necessitate his retirement or handicap him either in his work or his social or domestic activities to any marked degree, they had justifiably led him to conclude that he could not work and that he was severely handicapped as a result of the accident. That belief, although misconceived, was genuine. In the opinion of Dr Danta, a neurologist, Mr Murphy 'had the onset of a fairly severe nervous reaction which conforms to an accident neurosis . . . '. Dr. Corry, a consultant in rehabilitation medicine, described Mr Murphy's condition as 'a chronic anxiety state associated with moderate recurrent depression . . . '. Further, I am satisfied that Mr Murphy's neurotic belief resulted from the accident and the physical symptoms which Mr Murphy experienced after the accident which I find are substantially attributable to the accident. I do not consider that such physical symptoms as he experienced in that period and continues to experience can be wholly or significantly attributed to his pre-existing physical condition irrespective of the accident."

The second passage follows a finding that Mr. Murphy will never work again and a reference to the picture painted by Mr. and Mrs. Murphy that Mr. Murphy is virtually totally incapacitated. It reads -

"There is some truth in most of these complaints but, even with his neurosis, Mr. Murphy is not quite so badly disabled as is suggested. I am satisfied that there is some pleasure and fulfilment in Mr. Murphy's retirement and that the future, once these proceedings are concluded, will be even better. He swims, bowls socially, reads, performs light tasks in the garden and probably in the house. He may be able to fish or play golf occasionally. He does not stammer. There is some shakiness in his hands which is intentionally increased, although, as Dr Atkinson acknowledged, he had a spontaneous coarse tremor before the accident."

The learned trial judge accepted that Mr. Murphy had incurred out of pocket expenses which were agreed at $742.50, that his loss of income to the date of trial was $70,019.83, that the present value of his future economic loss from lost wages on the basis that he continued his employment with Brambles until age 65 years was $105,580 and that, had he continued in employment until that age, the present value of the additional superannuation which he would then have received by reference to his employer's contributions was $23,419. These amounts total $199,761.33. His Honour also accepted that Mr. Murphy would incur further medical expenses and pharmaceutical expenses (although he considered they would not be as heavy as Mr. Murphy had claimed) and had suffered and would continue to suffer some loss referable to the fact that while employed by Brambles he was provided with a motor vehicle at his employer's expense.

Counsel for Fairway argued that the learned trial judge, on the basis of his finding that Mr. Murphy would have continued to work in his pre-accident occupation until attaining 65 years, must be taken to have included in the damages assessed each of the sums referred to above totalling $199,761.33 and to have assessed general damages of the order of $25,000. His Honour did not in fact mention that or any other sum as being appropriate under this head.

It was argued that, although his Honour recognised that Mr. Murphy at the time of his encounter with the pipe had a pre-existing physical condition, he fell into error in "failing to take into account the potential of (that) pre-existing condition". Counsel referred to the following passage in the judgment of Barwick C.J. in Wilson v. Peisley (1976) 50 A.L.J.R. 207 at p. 210:

"It is apposite to point out at this point that the award is made between a plaintiff and a defendant. It is not simply a case of compensating the plaintiff for the injured condition without consideration of the potentiality of the pre-existing situation. In a case such as the present, the claim of the defendant to a just consideration of the likely results of that pre-existing condition, as reducing to its proper proportion the damages he should pay for what he has caused, is an important element in assessment."

The evidence established that Mr. Murphy had had problems with his neck and shoulders since 1969, that an X-ray examination in 1976 had shown well marked degenerative changes in his cervical spine and that a cervical myelogram disclosed disc herniation. The error into which the trial judge fell was said to be manifest in his statement -

"I have recognised the need to have regard to the vicissitudes of life but consider that such need plays no substantial role in the assessment of damages in this case."

This is not a case in which the trial judge failed to recognise the pre-existing situation or to take into account the chances of Mr. Murphy's pre-existing condition affecting him in the future in the ordinary pursuit of his life. Indeed there is more than one reference by the trial judge to the existence of the condition and to the medical reports in relation to it. It is significant in relation to his Honour's approach to note that the medical evidence, while contemplating that surgery might at some time become necessary in relation to the abnormalities in his neck, did not suggest as likely that that condition would result in Mr. Murphy becoming incapacitated for work.

It cannot be properly said that the amounts representing the present value of Mr. Murphy's future economic loss were not discounted or that only $25,000 was allowed by way of general damages. So to conclude would import greater precision into the process of assessment than is warranted and would not accord with the process of reasoning which the reasons for judgment in this case disclose.

While the amount of damages assessed is high, we are not satisfied that his Honour made an error in their assessment. They are not so inordinately disproportionate as to represent a wholly erroneous estimate of the damage suffered.

In the result the appeal and the cross-appeal are dismissed. Costs of the appeal should be paid by the appellant, and of the cross-appeal by the firstnamed respondent.