Bethune v Qconn Pty Ltd FCA [2002] FCA 1485 | Case summary

Bethune v Qconn Pty Ltd FCA [2002] FCA 1485 | Case summary | Zoe

[6]

4 Mr Bethune suffered horrendous injuries. He was completely immobilized by being trapped between the hydraulic arm and the metal bar which formed part of the roof structure of the machine. With him in that helpless position, the loader began to move in circles around the property until Ms Russell's father, who, fortunately, was present at the time, was able to climb into the machine, immobilise it and release the hydraulic arm. Mr Bethune was taken to hospital where his condition was so serious that it was more than two months before he could be discharged. Since then, he has been physically and psychiatrically disabled. The horror of his accident was aggravated by it having occurred in the view of his partner, Ms Russell, and their two children. They have joined with him in these proceedings, seeking damages for the trauma that they suffered as a result of seeing their partner and father hurt in such a frightening accident. 5 Much has been achieved by the litigants and their advisers. When the case was called on for hearing, I was informed that liability was still in issue but that the parties had agreed upon the quantification of Mr Bethune's claim should he be successful in whole or in part. I was also informed that the claims of Ms Russell and the children had been "settled" - although I was not informed of the terms of the settlement. However, it was an agreed fact that all settlements had been achieved without any admission of liability on the part of Case Adelaide. 6 Before turning to the evidence concerning the 1845 Uni-loader and the terms of its purchase by Mr Bethune, it is necessary to say something about Mr Bethune's experience with his earlier Case 1818 Uni-loader. In late 1995, Mr Bethune commenced operations, as a sole proprietor, in a business that he named "Bethune's Total Garden Care". The business was directed towards gardening and lawn mowing but it also included landscaping. In March 1996, he purchased a "Bobcat" for use in that business. Technically, the word "Bobcat" is the trade name for another manufacturer's loader, but it is now mostly used as a generic word to describe a particular type of earth-moving machine. The unit that Mr Bethune purchased was a Case 1818 model Uni-loader ("the 1818 Uni-loader" or "the 1818"). As he had not previously used that type of machine, he arranged for the vendor to give him some perfunctory lessons in its operation. Some friends or associates, who were operators of similar machinery, also gave him some tuition. Thereafter, Mr Bethune used the 1818 Uni-loader in his landscaping business until 22 May 1996 when it broke down. Mr Bethune sought help from the respondent. A service mechanic was sent out to the 1818 but, as he could not fix it, arrangements were made for Mr Bethune to take the 1818 to the respondent's premises on the following day. 7 It is common ground that on the next day, 23 May 1996, Mr Bethune attended at the premises of Case Adelaide for the purpose of arranging the repair of his 1818 Uni-loader; he was then accompanied by his friend and his witness, Mr Dion Phillips. Although Mr Bethune was uncertain, I am satisfied that the person at Case Adelaide to whom he first spoke was Mr John Fairburn, the Service Manager; Mr Fairburn gave evidence on behalf of the respondent in these proceedings. Mr Bethune was told that a drive shaft of the 1818 Uni-loader had broken and that it could cost in the order of $4,000 to fix it. He was also told that the necessary spare parts were not immediately available and that there was a possibility that they might have to come from overseas. Mr Bethune initially acknowledged that he told the mechanic at Case, to whom he was then talking, that he did not think that he could afford to pay $4,000. But, at another stage of his evidence, when it was put to Mr Bethune that the man to whom he first spoke had told him that the repairs would cost about $4,000 and that it would take two or three weeks to do the repairs and that parts had to come from overseas, Mr Bethune replied: "I don't know. No, I can't remember that."

[7]

There was some dispute as to whether or not Mr Fairburn told Mr Bethune that the parts for the 1818 had to be ordered from overseas, but it is not, in my opinion, necessary to resolve that incidental issue because it is common ground that Mr Bethune did not pursue his original intention to have his 1818 Uni-loader repaired; instead he purchased from the respondent the Case 1845 model Uni-loader. The 1845 was a bigger, stronger, but older machine. 8 Mr Bethune was asked whether he had told the Service Manager the type of work that he had been doing with his machine; he could not answer one way or the other, nor could he recall that the Service Manager said something to the effect that the 1818 was "a bit small for that sort of work and that was why your drive shaft had broken". When the discussion between Mr Bethune and Mr Fairburn moved from having his 1818 Uni-loader repaired to the prospect of him purchasing a replacement piece of equipment, Mr Lindsay Black took over the negotiations. He was, and is, the Managing Director of the respondent. Despite Mr Bethune's uncertainty, I am satisfied that Mr Fairburn introduced Mr Bethune to Mr Black when Mr Bethune told Mr Fairburn that he might be interested in purchasing a replacement unit. 9 The discussions between Mr Bethune and Mr Black were at the core of Mr Bethune's claim for damages against Case Adelaide. In his statement of claim, Mr Bethune alleged (and the respondent admitted) that Mr Bethune had made known to Mr Black that he (Mr Bethune) was engaged in a garden-care business and that the Uni-loader that he had been using in his business had been the Case 1818 model. The parties also agreed in their pleadings that Mr Black had told Mr Bethune that the 1845 was a second-hand vehicle that had been fitted with a new motor and that it was mechanically sound. Mr White QC, counsel for the respondent, explained that the reference to a "new motor" was not a reference to a "new engine" but a reference to a new motor for an hydraulic pump; that information was not challenged by the applicant. Apart from those areas of agreement, however, the litigants were far apart with respect to what the parties said to each other on the occasions when Mr Bethune attended at the respondent's premises on 23 and 24 May 1996. Case Adelaide denied that Mr Bethune told Mr Black that he wanted the 1845 to replace his Case 1818 and it also denied that Mr Black had said that the 1845 would be suitable for use by Mr Bethune in his business. 10 Exhibit R1 is a business "flyer" that was used by Mr Bethune to advertise his business. It is entitled: "Bethune's Total Garden Care"

[11]

13 There followed thereafter, a warning that the operator must wear the seat belt at all times while operating the machine. The ROPS framework consists of four vertical metal bars stretching upwards from the four corner points of the cabin. They are then connected at their top-most points by four horizontal metal bars so that an outline or a framework around the cabin and the seated operator is thereby formed. The ROPS side screens are made of wire mesh which is welded to a frame. In turn, the frame is bolted to the metal bars of the ROPS. Mr Black said, and I accept, that when his company acquired the 1845 as a "trade-in" on the sale of another piece of equipment, it had a roof screen but no side or rear screens and no door or screen in the front of the cabin. Mr Black said, and again I accept this evidence, that it was his company's intention, when preparing the 1845 for resale, to install side screens on both sides but not to the back or front of the cabin. That claim is borne out by his company's job sheet dated 17 April 1996. 14 It is common ground that when Mr Bethune took delivery of the 1845, the side screens had not been installed. Furthermore, it did not have an operational seat belt and the respondent did not supply Mr Bethune with an operator's manual for the machine. It pleaded that a manual was unnecessary as Mr Bethune "was an experienced Bobcat operator" - an allegation that Mr Bethune denied in his reply. The purpose of the side screens is and was to protect the operator from missiles and protrusions of various sorts during the course of operating the Uni-loader. Much time was therefore devoted, during the course of the oral evidence, as to what was said about the absence of the side screens. 15 Mr Bethune had the operator's manual for the 1818 Uni-loader during the time when he was using that machine. He said that he had read it although he could not recall, at the time of giving his evidence, what the manual said about not operating the machine unless the side screens were attached: nor could he remember what it said about the use of a safety belt. Prior to it breaking down, he said that he had used the 1818 regularly in his business -at times up to ten hours a day. He agreed that by practical experience, he had become more competent in the use and operation of the machine. He also agreed that when he bought the 1845 model, he saw that the controls were "pretty much" the same as those in the 1818. 16 Mr Bethune's 1818 Uni-loader had side screens on both sides and, so Mr Bethune thought, at the back. It did not, however, have a door or screen in the front. I also infer from the nature of Mr Bethune's evidence that there was also a roof safety screen for he talked of being "enclosed" except for the front section. When the manual for the 1818 model was put before him, it was drawn to Mr Bethune's attention that a picture of the model did not show a screen at the rear. Mr Bethune conceded that he "may be wrong" but he went on to add that he was "fairly positive" that his 1818 did have "something at the back". 17 The 1818 model, being a later model, had a function that was not present in the 1845 model. It comprised a set of seat bars that were referred to as "an interlocking function". When the operator sat in the cabin of the 1818 machine, there were two hinged arms on either side (ie, the seat bars) that the operator could draw together over his or her lap and lock into a secure position. They represented a form of restraint on the operator unless he or she made the deliberate effort to unlock the arms. The significance of the interlocking function was that when the arms were disengaged, the machine was immobilized. According to Mr Bethune, the 1818 Uni-loader had a conventional seat belt as well as the interlocking function. As there was no like interlocking function on the older 1845, it made the need for an operational seat belt more apparent. Mr Bethune accepted that he had read in the manual for the 1818 the statement: "Before you start the engine, always fasten the seat belt and pull down the seat bars".

[15]

20 The 1818 and the 1845 Uni-loaders were similar in some, but not all, respects. Both operated, for example by the use of levers; there is no steering wheel as in a conventional motor vehicle. When the operator is seated in either machine, he or she has two main levers - one on the left and one on the right, each of which is close to the operator's knees. Movement of the two levers, forward or backward, controls forward or reverse movements. For example, pushing one lever forward and holding the other will turn the machine in the direction of the forward lever. Each machine has a bucket (that is, the front end loader) which is approximately as wide as the machine. That bucket is controlled by two hydraulic arms that are on the outer side of the machine. The main pivot for each arm is at the rear of the machine and, in terms of a seated operator, the pivot points are shoulder height, if not higher. In a resting position, the arms angle down towards a second pivot and from there to the ground where they are connected to the bucket. At their highest point the hydraulic arms reach up and beyond the top most point of the ROPS in the case of both the 1818 and the 1845. At the top of each lever there is an attached second and smaller lever; these levers control the lift and the tilt or angle of the bucket. The left hand lever, by being pushed outwards and pulled inwards, controls the upward and downward movement of the hydraulic arms. The right hand lever controls the tilt or angle of the bucket. 21 The explanation for the cause of Mr Bethune's accident was not contentious. When he stood up in the cabin to break the protruding tree branch (or to push it out of the way), he lent outwards over the horizontal line of the left hydraulic arm. As he was doing that, his left leg pushed the left lever outwards causing the hydraulic arms to lift and trap his protruding body against the ROPS frame. 22 Mr Bethune agreed that when he examined the 1845 he noticed that there were bolt holes in the uprights of the ROPS frame. Mr White asked Mr Bethune whether he realised that the bolt holes might signify the places at which side screens had previously been affixed to the uprights of the ROPS frame. Mr Bethune replied: "I didn't ask anything about the holes. I just asked about the mesh itself - nothing about any holes that are in the side of it or (indistinct)."

[20]

25 There was a critical line of cross-examination of Mr Bethune covering the conversation that Mr Bethune had with Mr Black. Specifically, the questioning related to the absence of the side screens and whether Mr Black had said anything about the work that needed to be carried out on the 1845 Uni-loader before it was ready for sale. "Q Did he tell you that there still needed to be some work done on it? A He told me there had been work done to it, which we were talking about before. The motor had been put on, the hydraulic, and this had been done and that had been done. Then that's when we talked how much it was, the machine. That's where it sat. Q Did he say words to you to the effect that, 'This still needs some more work on it?' A No. Q Did he say words to the effect to you that, 'It's not ready for immediate sale'? A No. Q Did he tell you that it didn't have safety mesh on it? A No. Q Could you see by looking at it that it didn't have safety mesh? A Yes, I could, and I brought that issue up. Q Right. Could you see that as soon as you looked at it? A Yes, I could. Q You noticed it didn't have safety mesh. Was it, in other words, very obvious that it didn't have safety mesh? A Well, you could see straight through it. Q And did you think that it should have had safety mesh? A Yes, I asked about the safety mesh. Q Did he tell you words to the effect that they were arranging for safety mesh to be put on but it couldn't be done for some days? A No. Q Or alternatively couldn't do it for at least three days? A No. Q Or some expression like that? A No. Q Did he say something to you to the effect that when that machine had been traded in to Case Adelaide it didn't have any safety mesh on it? A No, never. … Q Did he explain to you that this machine was out the back because it was not yet ready for sale? A No. Q Did he give you any explanation as to why that machine was out the back rather than out the front with the others which were for sale? A No. Q Did he say to you any words to the effect that it might take them a day to get the machine ready for sale but something of the order of several days or three days before the safety mesh could be fitted? A No. Q When you were talking about the safety mesh did Mr Black say words to this effect to you: that it was illegal for him to sell you the uniloader if it did not have safety mesh? A No."

[27]

30 Mr White put to Mr Bethune the following passage from Mr Thornton's interview with Mr Bethune in the office of Mr Bethune's solicitors: Thornton "When I interviewed you on 24 October 1996, do you recall me asking the question, 'Did you make any mention of the lack of safety mesh along the operator's left and right sides of the operator's cabin?'" Bethune "To Case, yes." Thornton "And at that time you stated you didn't make any mention of the lack of safety mesh to the cabin to Mr Lindsay Black." Bethune "That's correct. I told Lindsay, the mechanic, about the safety mesh, and Lindsay Black was standing alongside me at the time." Mr White, having put that passage from Mr Thornton's interview, then asked Mr Bethune whether he recalled it. Mr Bethune replied: "No." Nevertheless, his reference to " Lindsay the mechanic" in his interview on 23 July 1997 was consistent with what he told Mr Thornton on 24 October 1996 when he said that he spoke "to the mechanic, Lindsay". 31 Mr Bethune conceded, in response to propositions put to him by Mr White, that the recollection that he then had of his conversation with Mr Black at Case Adelaide was "somewhat hazy". However, he insisted that his memory was not hazy about the issue of the side screens. He denied that Mr Black had told him that the side screens had to be on the machine because they were a safety feature. Although Mr Bethune was uncertain of the identity of the man, he was prepared to agree that Mr Fairburn was probably the person who loaded the 1845 Uni-loader onto a trailer so that Mr Bethune could take it away. Mr Fairburn claimed in his evidence that, on that occasion, he had said to Mr Bethune that the side screens would have to be fitted - an allegation that was denied by Mr Bethune. That piece of Mr Fairburn's evidence does not stand up to what he told Mr Thornton. When Mr Thornton interviewed Mr Fairburn on 15 November 1996 and asked him whether he could recall loading the 1845 onto a trailer for Mr Bethune, Mr Fairburn allegedly answered: "Personally no, not specifically". 32 The details concerning the absence of the side screens and the conversations on that topic that Mr Fairburn allegedly had with Mr Bethune and Mr Phillips, as contained in his witness statement and his oral evidence, are to be compared with the paucity of information that he gave to Mr Thornton at his interview on 15 November 1996. The relevant extract from Mr Thornton's record of interview, which was not challenged was: Thornton "After the 1845 machine was traded in by Rossi Rubbish & Earthmovers, do you recall seeing any safety mesh along the left and right of operators cabin at all?" Fairburn "No I don't recall. Wait a minute, one of them we traded in didn't have any mesh. That's probably it." Thornton "But you can't recall whether the 1845 machine purchased by Mr Bethune was the machine without the safety mesh?" Fairburn "I can't honestly." Thornton "Do you recall whether the machine purchased by Mr Bethune, was fitted with a complete seat belt?" Fairburn "No."

[35]

40 Mr Phillips, the witness for the applicant, who accompanied Mr Bethune when he went to Case Adelaide, knew that Mr Bethune "did have a lot of work on at that time". Mr Phillips said that Mr Bethune had said to someone at Case Adelaide words to the effect that he needed to have the machine so that he could get on with his work and he needed to be earning money in order to meet financial commitments under his finance contract. That, however, is not the end of this matter, for there was evidence that, at a cost, Mr Bethune could have hired a replacement unit from the respondent whilst his 1818 was being repaired. 41 Despite his reluctance to make a concession, I am satisfied that Mr Bethune was concerned about the breakdown of his machine; it is quite obvious that he would have wanted it, or a replacement unit, as quickly as possible. However, in determining who said what about the installation of the side screens, I do not place any great weight on Mr Bethune being anxious to have the 1845 made available to him as quickly as possible. I say that because there was, in my opinion, as great a sense of urgency on the part of Mr Black to effect a sale of the 1845. He conceded in cross-examination that, at that time - in May 1996 - his company was in financial difficulties; it was experiencing difficulties with its cashflow. The sale of the 1845 would inject a very much needed $2,000 into the company's bank account and Mr Bethune's willingness to take immediate delivery of the Uni-loader meant a saving of about $400 in labour and materials to the respondent; $400 was Mr Black's estimate of the likely costs of parts and labour to install the side screens. 42 It was common ground that Mr Black and Mr Bethune discussed the absence of the side screens on the 1845. The problem is to determine what was said. Did Mr Black, as he claimed, first inform Mr Bethune that the 1845 was not ready for sale and that it would take about three days to install the side screens? Did Mr Bethune respond by saying that he would take the machine in its existing state and assume the responsibility for fixing the screens? Mr Black's evidence on that issue was consistent with what he told Mr Thornton. When Mr Thornton interviewed Mr Black on 25 November 1996, Mr Black told him that, when he discussed the sale of the 1845 with Mr Bethune, he said to Mr Bethune that the "side screens had yet to be made". Mr Black told Mr Thornton that Mr Bethune replied: "I will make and fit them myself because I have to be working tomorrow". On the other hand there was Mr Bethune's evidence: did Mr Black, as Mr Bethune claimed, tell him that the 1845 was "standard", meaning thereby that it came without screens? 43 In his witness statement, Mr Black said that, apart from the discussion in which Mr Bethune said that he would install the mesh to the sides of the cabin: "… there were no other discussions between Bethune and myself about other safety features and there was no request by Bethune or his colleague to provide a safety operations manual". When pressed in cross-examination, Mr Black acknowledged that, in his discussions with Mr Bethune, he never said words to the effect: "You must not operate this machine until you install the mesh" but he insisted that he gave Mr Bethune "the warning in that the side screens must be fitted to the machine". 44 Mr Bethune gained material support from Mr Phillips. Mr Phillips attended a Technical High School until Year 11. Although he does not have any formal qualifications, he regards himself as a competent mechanic; he is also an experienced welder. On the other hand, he recognised that Mr Bethune: "… was not at all mechanically minded. If something went wrong with the 1818 Bobcat Paul would make a phone call to Case Adelaide for assistance. Sometimes, if something did happen, I would also have a look. I do not have any mechanical qualifications, I am just a backyard mechanic."

[36]

He elsewhere described Mr Bethune as "mechanically naďve". Mr Phillips, who was present with Mr Bethune when the 1818 Uni-loader broke down, was never employed by Mr Bethune, but on occasions he would help him with his work. The men were close friends at that time. They have, however, since drifted apart. There were two principal reasons for that: in the first place Mr Phillips found himself a girlfriend who at the time of his statement had become his fiancé and, secondly, Mr Bethune moved to a new residence in Two Wells. That was some time in January 1997 and Mr Phillips said: "I have not really had any conversation with him since." 45 Mr Phillips went with Mr Bethune to Case Adelaide on two occasions. On the first occasion it was to take the 1818 Uni-loader to be repaired after it had broken down. Mr Phillips could recall that Mr Bethune was told by someone at Case Adelaide that it would take about a month for the necessary parts to arrive in Adelaide. Mr Phillips also remembered that when he found out the likely length of the delay, Mr Bethune considered whether he should trade in the 1818 Uni-loader for a replacement machine. The machines in the front of the premises were too expensive but someone from Case Adelaide took Mr Bethune to the back of the premises and showed him the 1845 Uni-loader which Mr Phillips described in his witness statement as a model that "was a little bit cheaper and had just the basics". 46 Mr Phillips said that he and Mr Bethune spoke to Mr Lindsay Black and that they also spoke to another man, whose surname he did not know, but whose Christian name was also Lindsay. Mr Black confirmed that there was an employee at that time called Lindsay Sawyer who was the Spare Parts Manager. He said that it was not likely that Mr Sawyer would have had any involvement in the negotiations with Mr Bethune. That may have been a reasonable assumption for Mr Black to make, but the fact remains that both Mr Bethune and Mr Phillips referred to a second man whose Christian name was "Lindsay". Nothing, however, turns on that particular issue. 47 Mr Phillips said that he had a conversation about the side screens with Mr Black. He said: "To the best of my recollection I asked him about the mesh on the sides, because I saw the bolt holes, and he said that he didn't have any mesh to go on there."

[40]

52 I would not be confident about relying on Mr Bethune's evidence alone. The information that he gave Mr Thornton is at variance with what he has said in these proceedings. He volunteered, on more than one occasion whilst giving his evidence, that his memory is deficient. Furthermore, it was obvious to me that he easily became confused. I cannot accept for example, that Mr Black (or any one from Case Adelaide) would have said to him that it was "standard" for the machine to be sold without a seat belt and a manual. 53 The photographs of the 1845 that were tendered in evidence show that one half of the seat belt was clearly visible. It was not obscured by the operator's seat. The anchor point was to the side of the seat. It is therefore highly improbable that Mr Black would have said that it was standard for the machine to have no seat belt when half of it was so clearly visible. 54 Despite some minor inconsistencies in his evidence, I accept Mr Phillips as a witness of truth. He gave his evidence slowly, deliberately and carefully. There were times when he delayed inordinately in giving answers to questions during his cross-examination. Initially, I was concerned that he was embarrassed by the questions, but it became apparent, quite quickly, that many of the questions were innocuous and that his delay in replying was an indication of the care and thought that he gave before answering the question. I am therefore satisfied that he raised, in conversation with Mr Black, the absence of the side screens and that Mr Black told him that "he didn't have any mesh to go on there". I accept Mr Phillips' evidence when he said that Mr Black told that, because it was an earlier model, it did not "come out with mesh" and it did not "come out with it as a standard issue". I am also satisfied, and I find, that neither Mr Black nor any other employee of Case Adelaide discussed the question of safety mesh with Mr Bethune in the presence of Mr Phillips. Finally, I accept Mr Phillips' evidence that no one at Case Adelaide "told us not to use the machine unless the mesh was put on". 55 I find that there was a conversation between Mr Bethune and Mr Black about the absence of side screens on the 1845. I decline, however, to accept in its entirety, Mr Bethune's version of the conversation. Relying upon Mr Phillips, I am satisfied that Mr Black falsely told Mr Phillips that his company did not have any mesh in stock. That piece of evidence supports my further finding that Mr Black was anxious to complete the sale as quickly and as cheaply as possible so that his company could receive the $2,000 and avoid the expenditure of $400. Mr Bethune's claim that Mr Black used the word "standard" was corroborated by Mr Phillips and although I do not think that Mr Black used that word with respect to the seat belt, he could have correctly used it with respect to the interlocking function and I find that he falsely used it in relation to the safety screens. Mr Phillips support for that critical piece of evidence is another reason for rejecting Mr Black's version of the conversation. I do not believe that Mr Bethune said that he would fit the screens himself. He was not competent to do so and he knew that he was not competent. The most likely explanation is that Mr Black was content to rely on Mr Phillips' comment that Mr Phillips had the ability to fix the screens to the ROPS frames. However, as is apparent from the history of the events, Mr Bethune showed no interest in having the screens fitted. He was quite content to operate the 1845 without them. 56 Mr Fairburn's evidence was that he told Mr Phillips that "the 1845 required side screens to be made and installed". He went on to say that Mr Phillips replied with words to the effect: "we will make those, it will save us money". Even though I have decided to accept the evidence of Mr Phillips in preference to Mr Black and Mr Bethune, there is, to my mind, a distinct likelihood that such a conversation took place. It fits in with Mr Phillips' abilities and Mr Bethune's finances. (There was no evidence to the effect that Mr Black had told him that the respondent would meet the costs of $400 to fix the screens as part of the overall sale price.) 57 The truth of this matter lies in the realisation that, by the time this matter came to trial, the absence of the side screens had become a matter of great importance to all witnesses whereas, at the time of sale, it was no more than a matter of passing interest. It was the subject of discussion but not at the level of importance that Mr Bethune and Mr Black have described in their evidence. 58 In coming to these conclusions and making these findings I have not been able, as is apparent, to place great reliance on what Mr Bethune said in his evidence. For different reasons, I have had to treat Mr Black's evidence with the utmost care because of his admission in these proceedings that he deliberately lied when giving his evidence about Mr Bethune's accident in the Industrial Court proceedings. The respondent's defence was filed on 21 September 1999. Paragraph 10.7 of that defence contained a positive assertion that the offer by Case Adelaide to sell the 1845 Uni-loader was accepted by Mr Bethune on the express undertaking that he would install the side screens to the cabin area "which undertaking was recorded as a term of the contract of sale on the Order Form Number 5114". The entry on the Order Form ("the endorsement"), was as follows: "NO SIDE MESH TO ROPS FRAME - CUSTOMER AGREES TO FIT HIS OWN."

[43]

No reason was, however, given for this material change to the defence. The withdrawal of that assertion was confirmed a month or so before the commencement of the trial by a further letter from the respondent's solicitors dated 8 July 2002. Unfortunately, however, the offending words had been repeated in the respondent's amended defence which had been filed on 21 May 2002. I was informed by counsel from the bar table that that was an oversight on the part of the respondent's solicitors and I accept that advice. 60 By consent, Miss Nelson QC, counsel for the applicant, tendered a facsimile transmission from Case Adelaide to Esandadated 24 May 1996. The transmission comprised a copy of the Order Form Number 5114 which had been issued by Case Adelaide in relation to the purchase by Mr Bethune of the 1845 Uni-loader. That copy did not have the endorsement on it which appeared in the copy of Order Number 5114 in the respondent's Order Book. 61 Mr Black, after having been duly warned that he was not obliged to answer any questions, the answers to which might tend to incriminate him in the commission of a criminal offence, admitted that he had added the endorsement when it became apparent to him that legal proceedings might be instituted as a result of Mr Bethune's accident. He confessed that he went to the Order Book and, finding that the original and two carbon copies were still in the book (even though normal practice would have required Case Adelaide to hand the original copy to the purchasing customer), he wrote on the original the words of the endorsement. In doing that, he either overlooked or did not care, that he had, at the time of Mr Bethune's purchase, sent a copy of the order form to Esanda. Mr Black said that he made the false endorsement because he was worried that Mr Bethune's accident might have adverse consequences for his company and because, as he claimed, it truly reflected the agreement that he had struck with Mr Bethune. 62 As I mentioned earlier, there was some sketchy evidence led about a prosecution of the respondent in the State Industrial Court. It was an agreed fact that the proceedings were commenced on 24 September 1997 but that they did not conclude until 17 March 1998. Save for one item of information which I will shortly mention, I do not know what charges were laid, nor do I know the outcome of that prosecution. What follows is a summary of the concessions that were extracted from Mr Black during the course of his cross-examination by Miss Nelson. Miss Nelson read out a count - presumably from the complaint and summons - which she identified as "Count 3". She later read out the particulars that had been supplied by the prosecution in respect of that count. The count, according to Miss Nelson, was as follows: "Failed to ensure so far as was reasonably practicable that adequate information about any conditions to ensure the safe use of the plant were supplied with the plant contrary to s 24(1) of the Occupational Health, Safety and Welfare Act 1986."

[45]

64 Ms Nelson put to Mr Black and he agreed, that he or his advisers had made known that his company was prepared to plead guilty to Count 3 if the particulars were limited to the last three particulars. He said that his company would not plead guilty upon the basis of the first two items of the particulars. The prosecuting authorities would not accept the respondent's proposal and, as a consequence, there was a "disputed facts hearing". I do not know the outcome of that hearing but I do know that Mr Bethune was cross-examined in the Industrial Court upon the basis that he was wrong in saying that the endorsement was not present on the Order Form when he signed it. (I should make it clear that no fault is to be attributed to the respondent's legal advisers because they were only acting on Mr Black's instructions and he had not told them of his falsity.) Mr Black gave evidence in the Industrial Court in which he perpetuated the falsehood that was represented by the endorsement. In these proceedings, he claimed that he was uncomfortable when giving his evidence in the Industrial Court but he was forced to concede that he did nothing to rectify the situation until August 2000. That was when he was to sign his witness statement for the purpose of this litigation. 65 Mr Black's willingness to lie on oath is not to be used in any question that deals with his company's degree of culpability for Mr Bethune's accident. It does, however, raise questions about his credibility in these proceedings. He presented himself as one who is now contrite and apologetic for his actions. That might be so but it was a long time coming and in light of the copy of the Order Form that was in Esanda's possession, I am left wondering whether his contrition was genuine. These are the reasons why I have had difficulty in accepting all of Mr Black's evidence in disputed areas. 66 In addition to the matters that have been set out thus far, Mr Bethune further alleged that the 1845 should have been fitted with a seat belt. It was not disputed that, at the time of sale, one of the seat belt straps was missing. Mr White asked Mr Bethune, in cross-examination, a series of questions about the absence of a seat belt on the 1845: "Q Did you notice at any stage that there was no seat belt? A I don't know. I can't remember now, I am sorry. You are going back six and a half years ago. Q Yes. Is it the case that what you saw when you were there was one part of the seat belt only? … A No. … Q Yes I am asking you now whether, today, you have any recollection at all of what you noticed about the seat belt when you first looked at the 1845? A I can't remember, I'm sorry. Q It could be that you noticed that there was no seat belt altogether or, alternatively, you might have noticed that there was one part only of the seat belt, or it may be that you didn't notice anything at all? A No, I don't remember."

[53]

CAUSATION 74 I do not see how the absence of the seat belt was, in any way, causative of the injuries that Mr Bethune suffered. As the operator of a Uni-loader that had not been fitted with side screens, he found himself in a predicament that had been caused by the protrusion of the tree branch. He could have switched off the engine of the machine, alighted from the cabin, walked around the machine to the offending branch and then taken such action as was necessary to remove the branch from the cabin. He did not do that. Instead he stood up and proceeded manually to force the branch out of the cabin. In my opinion, he would have taken that action even if he had been seated and restrained by an operative seat belt; he would have disengaged the clasp of the seat belt, stood up and taken exactly the same action as he actually did take. 75 The manual is the next issue. I am also of the opinion that the failure by Case Adelaide to supply Mr Bethune with an operator's manual for the 1845 Uni-loader was not, in any way, causative of the accident or the injuries that he suffered. He had previously had a copy of the 1818 manual; the two pieces of machinery were substantially the same, even allowing for the absence of the interlocking function in the 1845. The provision of a copy of the operator's manual to Mr Bethune would not have prevented that dreadful accident from occurring. 76 There remains the question of the side screens. Quite clearly, in my opinion, it was the absence of a side mesh screen on the left hand side of the machine that was the "trigger" that led to the accident. If a screen had been present, there would have been no protrusion - Mr Bethune would not have had to take the action that he did take and there would have been no accident. Then again, if Mr Bethune had been an ordinary reasonable operator, he would not have lent out of the cabin and place his body over the horizontal line of the hydraulic arm. In the language of the law of tort, assuming always the existence of a duty of care - and a breach of that duty - he was, at the least, guilty of contributory negligence to a substantial degree. 77 I find that Mr Bethune had had the regular use of a Case Uni-loader from March 1996 until his accident on 9 August 1996. Initially, it was the smaller 1818 model but, as from 24 May 1996, it was the larger but older 1845 model. The 1818 model had, at the least, side screens, an appropriate seat belt and an interlocking function. Although the 1845 model was not designed to have the interlocking function, it was designed to have side screens and a seat belt. I find that Mr Bethune, by virtue of his earlier experience, knew, and if he did not know, then he ought to have known, that the 1845 should have had side screens and a seat belt. He purchased the 1845, well knowing that it neither had the side screens nor the seat belt and he did nothing to install those protective devices. He knew, and if he did not know, then he ought to have known, that if the 1845 had been fitted with side screens, dangerous objects, such as the branch of a tree, would not have protruded into the cabin. He knew, and if he did not know, then he ought to have known, that by leaning out of the cabin, he exposed his body to the horizontal line of the hydraulic arm. He knew, and if he did not know, then he ought to have known, that outward pressure to the lever on the left hand side - pushing it away from the body - activated the hydraulic arms causing them to rise. 78 Case Adelaide (through its agent and Managing Director, Mr Lindsay Black) knew, and if it did not know, it ought to have known, that the Case 1845 Uni-loader that Mr Bethune purchased should have been, but was not, equipped with (at least) side screens and a seat belt. Case Adelaide also knew, and if it did not know, it ought to have known, that it was dangerous for an operator to operate such a machine without the side screens and the seat belt. Furthermore, Case Adelaide knew, and if it did not know, it ought to have known, that it placed Mr Bethune at risk by selling to him a piece of machinery which did not contain those essential safety features. Finally, Case Adelaide knew, and if it did not know, it ought to have known, that it should have supplied Mr Bethune with a copy of the operators' manual for the 1845 when it sold the machine to him. I have already concluded that, in the particular circumstances of this case, the absence of a seat belt and the manual was not causative of Mr Bethune's accident, but I am satisfied that the absence of the side screens was a contributory cause. 79 Mr Bethune has alleged that the failure to supply the mesh, the seat belt and the safety manual represented the breach of a duty of care that Case Adelaide owed to him; he also alleged that the omissions amounted to the respondent having engaged in misleading or deceptive conduct in breach of s 52 of the TPA and s 56 of the Fair Trading Act 1987 (SA) ("the FTA"); that alleged breach was said to have occurred because Case Adelaide had held out, as part of the representations that had been made by Mr Black, that the Case 1845 Uni-loader was fit for use as a Uni-loader when it was not so fit because of those three omissions. In addition to his claim in tort and his claim under the TPA and the FTA, Mr Bethune also alleged breach of contract on the part of the respondent, alleging that the unit that was sold was not of merchantable quality - contrary to implied terms in the contract of sale: s 71 of the TPA and s 14 II of the Sale of Goods Act 1895 (SA). He further alleged that the unit was not fit for use as a Uni-loader, thereby breaching the provisions of s 14 I of the Sale of Goods Act.

[54]

misleading or deceptive conduct 80 I turn first to consider the allegations that the respondent breached the provisions of the TPA and the FTA. Ms Nelson argued that the conduct of Mr Black should be treated as an admission of liability. As soon as he heard of the accident and discovered that it was a crush injury, he made the false entry in the Order Book because he realised that the accident was caused as a result of his company's negligence and misrepresentation; he was aware, so it was submitted, that he had not said anything to Mr Bethune about the need to have side screens installed. 81 In par 10.2 of the statement of claim, Mr Bethune had alleged that Mr Black had made certain representations to him which representations had induced him to enter into the contract to purchase the 1845 Uni-loader. Those representations were said to include statements that the machine would be "a suitable vehicle for the use of the male applicant", that the machine had "been serviced and had had done to it everything that was necessary" and an implied representation that the 1845 "was of a standard make and condition and in accordance with the manufacturer's original specifications …" 82 I am satisfied that Mr Black did represent that the 1845 was a suitable vehicle for Mr Bethune and that it had been appropriately serviced. Even so, those representations were accurate; there was nothing false or misleading about them. The allegation that Mr Black represented that the 1845 was "of a standard make and condition" was proved to my satisfaction but I was not satisfied that Mr Bethune relied on it, nor do I believe that it induced him to enter into the contract to purchase the machine. 83 The pleading in par 22 of the statement of claim that the respondent had engaged in misleading or deceptive conduct was deficient in that it did not allege that the respondent had made any representation to Mr Bethune upon which he had relied and which had induced him to purchase the 1845. The allegations in par 22.1 of the statement of claim were to the effect that the conduct of the respondent that was misleading or deceptive was the sale of the machine in its present condition and the failure to provide any written instructions with respect to the operation of the machine. The paragraph was in the following terms: "22 The respondent engaged in misleading and deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) in that it - 22.1 sold the CASE 1845 to the male applicant on the basis that it was fit for use as a uniloader when it was not so fit by reason of the fact that- 22.1.1 it did not have a safety cage or wire mesh around the cabin; 22.1.2 it did not have fitted to it either a proper and adjustable seat belt; 22.1.3 it did not have any or any proper manual or written instructions as to its use;"

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86 That amendment did not, in my opinion, rectify the situation. Putting to one side the evidence of Mr Black and Mr Fairburn (which was to the effect that Mr Bethune said that he would fit the side screens) the evidence of Mr Bethune did not support the new allegations. Neither he nor Mr Phillips addressed the subject of safety as a representation. Mr Bethune said that Mr Black told him that the condition of the 1845 (without the side screens) was "standard", whilst Mr Phillips' evidence included the assertion that Mr Black told him that Case Adelaide did not have any mesh on hand to fix to the ROPS of the 1845. The evidence does not satisfy me that the conduct of the respondent induced Mr Bethune to purchase the 1845: Kabwand Pty Ltd v National Australia Bank Ltd (1989) 11 ATPR ¶40-950 at 50,378 ("Kabwand"). Ms Nelson submitted that it was not necessary for Mr Bethune to prove that the respondent's conduct was the sole inducement upon which he relied in making his decision to purchase the 1845. It would be sufficient, she claimed, if the Court were to be satisfied that he was influenced by Mr Black's misrepresentations into making his purchase; it would be sufficient for Mr Bethune to establish that the misrepresentations played some part - even a minor part - in contributing to the formation of the contract. The applicant's difficulty lies in the fact that I have considered that there was no inducement. Even though he was falsely told that the appearance of the machine was standard, I am satisfied that he was more than willing to take the 1845 in its present condition. Mr Phillips' evidence destroyed any question of reliance and inducement. Reliance was missing in this case. Nowhere in his evidence did Mr Bethune address the question of reliance. Nowhere did he say that one of the reasons why he purchased the machine was because he relied on what Mr Black or some other employee of Case Adelaide had said to him. In my opinion, Mr Bethune was prepared to purchase the 1845 Uni-loader, well knowing that it was not fitted with side screens.

[82]

The respondent's failure to supply Mr Bethune with a manual for the 1845 was, additionally, a breach of par 24(1)(e) of the Occupational Health, Safety and Welfare Act but, as I have already said, I do not regard that as causative of the accident and it is for that reason that I will not stop to consider that provision. 101 The fact that the applicant (or his advisers) chose not to plead a breach of statutory duty does not mean the provisions of the statute are to be ignored. Those provisions are material, just as the provisions in the operator's manual are material in making an evaluation of two critical questions: first, did the respondent owe Mr Bethune a duty of care and, secondly, if it did, what was the extent or standard of that duty? Mr Black's statement that he said to Mr Bethune that it would be "illegal" to sell the 1845 without mesh is an admission against interest and constitutes evidence that he had knowledge about the safety provisions of the legislation. Although the applicant has not maintained, as a cause of action, a breach of statutory duty, his general allegation of negligence does not deny the Court the right to have regard to the provisions of the statute for the purpose of concluding that the respondent owed a duty of care to Mr Bethune and for the further purpose of concluding that it breached that duty. 102 The contents of the manuals for the 1818 and the 1845 models both exhibited the need to have side screens on each side of the operator's cabin. Mr Black was aware of those provisions; he has had many years experience dealing with products of the Case Corporation - first, as an employee but more recently, as a franchisee. Although the contents of the manuals do not have specific legal force and can never be conclusive of an issue, their contents may be taken into account when determining whether a respondent has taken reasonable precautions. They fall into the same category as standards or guides: Chicco v The Corporation of the City of Woodville (1990) Aust Torts Reports ¶81-028; Maynard v Rover Mowers Ltd [2000] QCA 26. All the machines that his company had on display for sale in the front of the company's premises were equipped with side screens. His own evidence was to the effect that he told Mr Bethune that the 1845 was not ready for sale because (inter alia) side screens had to be fitted to it. In other words, Mr Black's evidence justifies a finding that it was common practice to sell such Uni-loaders with fitted side safety screens. The common law duty was for the respondent to use an appropriate level of care and skill and that, in my opinion, imposed on a retailer, such as the respondent, an obligation not to sell a machine, such as the 1845, in a condition that the retailer knew to be unsafe. 103 The relationship of purchaser and vendor, coupled with the relevant provisions of the Occupational Health, Safety and Welfare Act and the operator's manual have led, in my opinion, to the existence of a common law duty of care that was owed by the respondent to Mr Bethune. The respondent's action in selling the 1845 Uni-loader without the installation of the two side screens was a breach of that duty and Mr Bethune's injury resulted, in part, from a breach of that duty. 104 Even though I am satisfied that Mr Bethune was aware of the contents of the operator's manual for the 1818 Uni-loader and even though he well knew that his 1818 model had safety screens on both sides, there was no evidence to suggest that Mr Bethune was aware of the provisions of the Occupational Health, Safety and Welfare Act. In other words, he did not know that his retailer was under an obligation to refrain from selling the 1845 until side screens had been fitted. Furthermore, when his accident occurred in August 1996, he had only been using Uni-loaders since March of that year - a time span of about five months. That may have been a sufficient period of time within which to become accustomed to the fundamental method of operating the machine, but the evidence did not disclose the extent to which (if at all) Mr Bethune might have encountered abnormalities in his operation of the machine. Five months is a very short period of time within which to label an operator as a proficient (or, indeed an efficient) operator. This is not a case where the injured party would have proceeded with his purchase even if he had been told of the risks. I have rejected Mr Black's evidence on that particular subject in preference to the evidence of Mr Phillips and (to a lesser extent) Mr Bethune. The sale of the 1845 without the side screens was a contributing cause of Mr Bethune's accident. On the other hand, Mr Bethune's reckless conduct in leaning out of the cabin over the horizontal line of the hydraulic arm, was also a contributing cause. 105 Ms Nelson would not accept that Mr Bethune's conduct was foolish and contrary to common sense, as submitted by counsel for the respondent. If, however, the Court were to take the contrary view, then she submitted that, on a question of apportionment, I should favour Mr Bethune. Ms Nelson argued that, in the first place, there was a substantial difference between the respondent and Mr Bethune in terms of their knowledge of the machine and the safety precautions that were necessary for its operation. Secondly, she argued, "it would not be fair or reasonable to regard the applicant as the author of his own harm". I believe that both these propositions have already been answered in these reasons. The difference between the parties is reflected by the findings that there was a duty of care that was owed by the respondent to the applicant and by the further finding that there had been a breach of that duty. As to fairness and reasonability, that has been answered by the acceptance that both parties were, in part, to blame for the accident.

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CONTRIBUTORY NEGLIGENCE 106 The defence of contributory negligence in South Australia was initially replaced by the principle of apportionment as provided for in subs 27A(3) of the Wrongs Act 1936 (SA). Currently the subject is addressed by the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA). However, subs 27A(3) was in force at the time of Mr Bethune's accident and is the provision that is relevant to his claim. There is to be an apportionment of damages in accordance with the degree of responsibility of the parties: cf March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 512 per Mason CJ. Having reached the conclusion that Case Adelaide was in breach of a duty of care which it owed to Mr Bethune, a finding of liability against the respondent becomes the consequence. The only question then remaining is apportionment, having regard to the applicant's "share in the responsibility for the damage": subs 27A(3) of the Wrongs Act; March v Stramare at 524 - 525 per Toohey J. 107 The view that I have taken on the issue of apportionment is that Mr Bethune's responsibility increased with his increasing experience in the operation of the machine. And, as his degree of responsibility increased, so also did the responsibility of the respondent diminish. If the accident that actually occurred, had occurred on Mr Bethune's first day of use, his degree of responsibility would be much less than if the accident had occurred twelve months after purchase. In that hypothetical twelve month period, Mr Bethune, in the course of using his 1845 machine, would have become more aware of the risks and dangers that were attendant upon his operation of the machine. Indeed, there would come a point of time when the respondent's breach of its duty of care would be reduced to negligible proportions. That situation had not yet arisen in the present circumstances. Mr Bethune had only been using the machine for a little over two months and there was no evidence to suggest that anything in the nature of an untoward event had occurred during the course of his operations to warn him of the risks that he was running. 108 The issue of contributory negligence has to be approached on the footing that Case Adelaide had failed to discharge its obligations to take reasonable care, and that, in considering whether there was contributory negligence on the part of Mr Bethune, the circumstances and conditions in which he had to operate the 1845 Uni-loader have to be taken into account: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 531 ("Podrebersek") per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ. The members of the court later said at 532-533: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."

[90]

112 Section 48 of the Limitation of Actions Act relevantly provides that: "(1) Subject to this section, where an Act, regulation or by-law prescribes or limits the time for- (a) instituting an action; (b) doing an act, or taking any step in an action; or (c) … a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require. … (3) This section does not - (a) apply to criminal proceedings; or (b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied - (i) that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or (ii) that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances, and that in all the circumstances of that case it is just to grant the extension of time." 113 Prima facie, the factual matrix that the applicant would have to be aware of, in order to bring an action for breach of statutory duty, would be no different from that grounding a claim in negligence. In Mr Bethune's case, the amendment sought by the applicant does not stem from the discovery of new facts that lead to a new cause of action. That much would seem to be clear, since the applicant has not led any new evidence. Rather, the application for an amendment seems to stem from the oversight of the applicant's legal advisers, who omitted to include the cause of action for breach of statutory duty in the statement of claim. 114 Furthermore, the applicant cannot succeed in raising subpar 48(3)(b)(ii). The applicant has not argued that the respondent was responsible in some way for the applicant's failure to plead breach of statutory duty at an earlier stage. 115 In Cubillo v Commonwealth (No 2) (2000) 103 FCR 11 ("Cubillo"), I had to consider the parallel provision in s 44 of the Limitation Act 1981 (NT) - s 44. I there said at [1311] that: "The failure by an applicant to satisfy one of the preconditions in s44(3) of the Limitation Act [the parallel provision to s48(3) of the SA Act] means that the Court lacks power to grant an extension of time and the statutory bar will apply. As Maurice J explained in Braedon v Hynes (unreported, Supreme Court, NT, Maurice J, 24 July 1986), the precondition 'is clearly an absolute pre-condition that must be met before there is any question of the Court having a discretion in the matter' …"

Bethune v Qconn Pty Ltd FCA

At a glance

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Before

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Judgment (94 paragraphs)

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Legislation Cited (10)

Cases Cited (8)