Commonwealth of Australia v. Richardson, Samuel [1980] FCA 113

BETWEEN: COMMONWEALTH OF AUSTRALIA Appellant AND; SAMUEL RICHARDSON Respondent ORDER

JUDGES MAKING ORDER: Blackburn, St.John and Lockhart .J7.J.

DATE OF ORDER' 12 August 1980 WHERE MADE: Canberra.

THE COURT ORDERS THAT: (1) the appeal is dismissed;

(2) the cross-appeal be allowed and judgment in the sum of $35,442.37 be substituted for the judgment entered;

(3) the appellant pay the costs of the appeal and cross- appeal to be taxed.

CORAM: BLACKBURN, ST.JOHN and LOCKHART JJ. 12 AUGUST 1980

On 17 June 1976 the respondent to this appeal, Samuel Richardson was driving and operating a Volvo articulated front end loader as an employee of the appellant Commonwealth of Australia. The front-end loader overturned whereby the respondent was injured and in respect of such injuries he sued the appellant for damages for negligence alleging a breach by the appellant employer of the common law duty to take reasonable care for his safety. A particular of the breach was the failure to fit a seat belt to the front-end loader. The learned trial judge, McGregor J., found negligence in the appellant who appeals to this court submitting that there was no evidence upon which the learned trial judge could so find, or alternatively no evidence reasonably capable of supporting His Honour's finding that the installation of the seat belt would have protected

the plaintiff from the hazard which caused his injuries.

The respondent was a well-experienced operator of the type of equipment he was using at the time of the accident, and no Suggestion was made at the trial that the respondent's conduct in anv way contributed to the accident. He commenced work on the relevant date at approximately 7.30 a.m. uSing the loader to take up rubble and load 1t onto a truck, the top of the sides of which were ten or cleven feet above ground level. After two truck loads had been loaded, some Iight rain fell and when the respondent was about to load the fifth bucket he approached the truck, and, as he was nearing it the left wheel of the loader slipped and dropped into a depression quite quickly and the loader overturacd. The respondent hung onto the steeriny shoel as tightly as he could but as he described it "1t jyust pelted me dewn unto the side of the machine". The respondent adentified a steei colurn ar

Counsel for the appellant contended that there was no evidence to establish that before the accident it was reasonably foresecable by the appellant that there was a risk that this particular machine would overturn while being driven in the course of the carrying out of the work for the performance of which it had been acqui1ted. We cannot accept this submission. There was evidenc. that the vehicle was used on rough and uneven ground, that when the vehicle was steeply inclined the driver had to hold the stcering wheel very firmly to keep himself in place; that 1t had sometimes to be driven with the bucket held in a high position, which significantly raised its centre of gravity; that it was articulated, and that when 1t was making a turn there was a tendency for one wheel to come of]

We think that on the evidence 1t was not at all surprising that the learned trial judge held that the risk of injury to the driver caused by the impact of his body against the vehicle was one which the defendant should reasonably have foreseen. We agree with

It was also contended that the evidence did not establish that the provision of safety harness, designed to hold the driver 11 place, was a reasonable step for the defendant to take. The front- end loader had the necessary fittings for the attachment of a seat belt but no seat belt was in fact fitted. The absence of the seat belt was drawn to the attention of one of-his superiors when the front-end loader was delivered. There was evidence of other vehicles of the same function being fitted with seat belts and there was also

evidence that being disloged from the seat was rot an occasicn of

great rarity. The evidence also showed that a scat belt was fitted to the vehicle in the year after the accident occurred. Again, therefore, we agree with the learned judge's decision that the

provision of the equipment was a step which the defendant should

Finally, the learned judge's finding that the use of such. safety harness by the plaintiff would have prevented the impact or at least minimized its force, was also challenged. Once again, we

think that this finding was not only open on the evidence,but was one

For all these reasons the appeal must be dismissed with

The respondent cross-appealed against the adequacy of the damages awarded by the learned trial judge. His Honour awarded damages of $31,442.37, which included the amount of $8,000 for pain

The plaintiff suffered a disruption of the acromiocluvicrlar joint on the left side which was eventually the subicct of a surgical procedure to excise the outer end of the clavicle on his lett side The plaintiff was a left-handed man and (is Honour found that he hal a partially disabling inzury which prevented him resuming woik. Le 1s left with permanent restriction in movement with attendant discomfort and reduction in strength. At the time of the accident

the plaintiff was approximately sixty-two years of age. Ilis

recreations were physical rather than intellectual. He was a keer golfer, swimmer and bowls player. He had purchased a house near the coast for his intended retirement. He participated in chain saw competitions and regularly attended dances. These activities are now denied him. He was also a keen gardener and won a number of prizes for his efforts. His activity in the garden is now very restricted because of the pain which that activity induces in his shoulder. The injury and the subsequent treatment were painful, and three years later the plaintiff underwent a painful operation which improved, but did not remove, the pain in his shoulder. The medical evidence showed that restriction 1n motion, reduction in

strength, and some pain in his shoulder will all be permanent.

The exercise of discretion by the learned trial judge in assessing damages ought not to be interfered with by this Court on appeal unless it 1s clear that he has adopted an erroneous approach to the assessment of damages or unless the assessment 1s itself so demonstrably disproportionate to the injuries received that crror is clear. A mere difference of opinion as to what ought to have

been the proper award of damages does not establish that the trial

judge erred. see Sharman v. Evans (1977) 138 C.1.R. 563.

Bearing this principle in mind, we have nevertheless come to the view that $8,000 as the component in the damages for non- economic loss 1s not adequate, and that the proper amount for tt should be $12,000. Whe therefore allow the cross-appeal and order that judgment in the sum of $35,442.37 be substituted for the judgment entered. The appellant is ordered to pay the costs of the