_Drew v Makita

District Court of Queensland|2008-08-29

[1] Paul Drew ("the plaintiff") is a 59-year-old male who claims damages for personal injuries and consequential loss suffered by him as a result of an alleged breach by Makita (Australia) Pty Ltd ("the defendant") of s 75AC of the Trade Practices Act 1974 ("TPA") and/or a breach of duty of care owed by the defendant to the plaintiff at common law. At the relevant time the plaintiff was operating a circular saw claimed to have been manufactured and supplied by the defendant. While he was in the process of cutting a "Weathertex" cladding sheet his left hand came into contact with the exposed blade of the circular saw causing severe injuries to his left hand.

[2] The plaintiff's evidence is in the following terms:

• Shortly after his repatriation to Australia 12 months later in October 1971 he resumed his former occupation but for personal reasons ceased to continue in this occupation as a livelihood and commenced contract-cleaning.[3]

• Although he commenced contract-cleaning, he maintained his interest in his trade and "... always maintained tools and I always done jobs for neighbours and things like that to help out friends, all the time, all the way through, right when I was cleaning."[4]

• He commenced to receive a Totally and Permanently Incapacitated (TPI) pension in or about 1998 as a result Post-Traumatic Stress Disorder ("PTSD") due to his army service but continued to use his "... skills as a shop fitter, carpenter and joiner" from time to time in the same manner as he had done previously, helping out "... neighbours and friends and also other Vietnam veterans".[5]

• He did this work in an honorary capacity as apart from assisting various persons he used the work as a form of therapy for his medical condition.

• On 31 May 2001 he purchased a new "...7 and a quarter inch ... Makita circular saw,[6] Model 5806 serial number 225507K ... from Queensland Trade Tools", the receipt for which is Exhibit 2 in the proceeding.[7]

• He "completed a warranty registration card" when he purchased the saw, which appears to be confirmed by an internal email of the defendant which became Exhibit 9 in the proceeding.

• The plaintiff further stated he had used the saw "...approximately four or five times..." before using it "...on the 19th December 2001..." when he suffered the injury, the subject of the proceeding ("the incident").[8]

• Prior to the incident he had not modified or changed the saw; had never dropped or damaged the saw in any manner and after use "... it was always placed back into the box and then put in a secure place."[9]

• On 19 December 2001 the plaintiff was assisting a neighbour with some house renovations and immediately prior to the incident "...was cutting a product called Weather-tex. Weather-tex is an artificial board used for the external cladding of a house and it comes in various shapes. It was in the shape of two weather boards."[10]

• The dimensions of the board to be cut in two down the centre were "...3.6 metres long by 300 mm wide by 12 mm thick."[11]

• He described the work system he used to carry out the task in the following manner:**

"I set up two saw horses which are approximately 600 ml [sic] high and then on top of those I placed two boards which were 200 ml [sic] to 250 ml [sic] in width by 3.6 metres long by 50 ml [sic] thick. They were placed on top. The working bench was approximately 650 ml [sic] high."[12]

**• The boards were not clamped onto the saw horses "... because they were hardwood boards and the weight of the boards actually keep them on".[13]

• He had "...performed this sort of task before ... On many occasions" and was "...satisfied that the system you (he) set up was safe".[14]

• He commenced to use the saw to carry out the task in hand and his evidence on point is in the following terms:**

"Prior to commencing operating the saw, did you deliberate [sic], that is consciously, wedge the lower guard open?-- No.

Prior to commencing using the saw, did you deliberately, that is consciously, tie the lower guard open?-- No.

At any time after you commenced operating the saw that day did you deliberately, that is consciously, wedge the lower guard open?-- No.

At any time after you commenced operating the saw, did you deliberately, that is consciously, tie the lower guard open?-- No."[15]

**• He further stated that throughout the time he was operating the saw on the day of the incident he was "... aware that there was a guard on the saw which was designed to retract automatically and cover the blade" and he was not "... aware, at any time, prior to the incident, of this guard malfunctioning on this saw."[16]

• He stated there were a number of reasons "...why the operator of the saw might choose to move the guard back using the control lever, rather than allow the piece of work to force the - the guard back as can happen at times"[17] namely:

o when the operator is carrying out a "plunge cut";

o where the piece of board to be cut "...has a mitre on the end of the board".[18]

• That he was unaware that it was possible for the operator of the saw to "...consciously lock the guard into a position where it is permanently open by design."[19]

• He was assisted in the task before the incident occurred by the witness Matthew James Vayro ("Vayro"), who the plaintiff stated:**

"... he was at the end of the first horse, at the end of the 3.6 metres, right, holding it, with his arms spread out holding it down to the bench. Once I proceeded through and got through approximately half way, that's when he come around - I stopped and he come around and held onto the back of it so he's not in my road."[20]

• The plaintiff described what happened when he suffered his injury in the following terms:

"And what happened then as you go towards the end of the ripping action on that particular board?-- I got to approximately 3 to 400 mm from the end and for some unknown reason the board fell and I tried to grab hold of the board that was falling because that's the natural instinct, right, I tried to grab hold of the board but the board wasn't there.

And what happened?-- Consequently because the guard did not retract back around, I grabbed hold of the blade."[21]

**• The plaintiff further stated that he subsequently received a letter dated 14 November 2002 from the defendant, which became Exhibit 11 in the proceeding referring to the same model saw he had purchased, requesting that the saw be taken to "... your closest Authorised Service Agent ... for modification at no charge".

[3] Exhibits 12 to 14 inclusive were tendered through the plaintiff and were respectively:

• the original Makita Product Safety Recall notice of circular saws including the one used by the plaintiff in the incident;

• the same Makita Product Safety Recall notice posted on the internet; and

• the Rework Instructions Manual for the said saws.

Plaintiff's Cross-Examination on Circumstances of Incident:

[4] The plaintiff was cross-examined at length on the circumstances of the incident including:

• what he had told various medical practitioners from whom he received treatment;

• when he first contemplated pursuing his claim against the defendant;

• how he operated the circular saw on the day of the incident and in particular his use of the guard;

"So, Mr Drew, are you saying, that on this day, although you didn't mean to do it, you did lock this open?-- I did not lock it open. Not consciously lock it open."[22]

"And you locked it open?-- I - I did not purposely lock it open.

No. But you subconsciously or inadvertently locked it open is what you're saying?-- Maybe. Yes. You're saying.

I'm asking?-- You're telling me that I locked the guard open and - no, I did not purposely lock the guard open."[23]

**[5] The plaintiff further stated that he did not "... realise ... [that he] could lock the guard in the open position."[24]

[6] Over the two and a half years following the incident the plaintiff underwent a series of operations and treatment set out in Exhibit 5 of the proceeding. Further major surgery is still contemplated to attempt to provide him with better use of the hand.[25]

[7] As a result of the injury the plaintiff says he has been deprived of a number of hobbies and/or recreational activities in which he previously participated.[26]

[8] He was required to wear "about 50 or 60 different braces" during his rehabilitation "... all designed to get my hands moving."[27] He required assistance for personal needs, which were rendered by his partner as set out in Exhibit 7 in the proceeding. A further Schedule of Services was provided in respect of less intensive periods of care which became Exhibit 8 in the proceeding.

[9] The plaintiff further stated that he has difficulty in picking up objects because of lack of strength in his left hand and "muscle deterioration" and that he cannot operate a normal motor mower "... because of the vibration" as a result of which he had to purchase "... a Scott Bonner self-propel mower with a roller".[28]

[10] There was a substantial volume of medical evidence and commentary adduced at the hearing including reports from the following specialist medical practitioners and others:

• Dr Mark Ross, Orthopaedic Surgeon (called by plaintiff), reports dated:

• Dr Desmond Soares, Orthopaedic Surgeon (called by plaintiff), reports dated:

• Dr Steven Coleman, Surgeon (called by defendant), reports dated:

[11] Dr Ross reported that the plaintiff sustained:

• "... a very severe injury to the left hand ... and the injury was almost severe enough to result in him losing the large part of his hand but fortunately it was salvaged;"[29]

• "... he has had stiffness due to the quite extensive nature of the damage to his hand;"[30]

• "... he has developed significant stiffness of his metacarpo-phalangeal joints of the small, middle, and index fingers;[31]

• The plaintiff underwent further surgery at St Andrews' Hospital on 26 June 2003 where various procedures were undertaken in respect of the left hand "Under a general anaesthetic";[32]

• Dr Soares gave evidence in respect of his reports referred to above confirming their contents and in particular that the plaintiff's contact with the saw caused:**

"... the blade partly severed off his left hand. This happened around the area of the mid-palm. His hand was held on by dorsal tendons and the index and middle metacarpals."[33]

**• "His injuries included 100% laceration of all digital nerves to thumb, index, middle, ring, and little fingers."[34]

• He had fractures of various metacarpal bones; lacerations of tendons of fingers and thumb.[35]

• "Following his initial surgery he started to develop carpal tunnel symptoms in the right hand."[36]

• "In all Mr Drew has had nine operations so far, including the two carpal tunnel releases performed on his right hand."[37]

• In summary, Dr Soares states that the plaintiff:**

"... suffered a severe partial amputation to his left hand.

This has left him with severe impairments to his left hand. This has also greatly affected his functioning at home and beyond."[38]

• Dr Soares further advised that:[39]

"Mr Drew will require further surgery to his hand",

"Mr Drew is unable to manage even the most basic tasks with his injured hand that he managed before. He needs significant assistance with home tasks and any tasks that require him to put a load on his hand. He requires assistance from his partner to dress himself, to cut up his food and for other activities of daily living."

• In Dr Soares' second report of 15 November 2007, five years eight months post injury and two years nine months after his first report, he assesses the plaintiff's "impairment" in the following terms:

"...I would evaluate Paul Drew as suffering a 22% (twenty two percent) whole body impairment."[40]

**• Dr Soares further states that in respect of "Home Help" the plaintiff "... would require assistance for an aggregate of 90-120 minutes per day." He further states as noted, that the plaintiff "... will require further surgery to his hand" setting out the "procedures" and that "Even after the surgery listed above he will still be left with a permanent impairment of at least 15% whole person impairment."[41]

• In evidence Dr Soares estimated that the cost of the "... further surgery ... would be between 12 and $15,000 all up, which includes surgeons, anaesthetists, prostheses, hospital stay" and with further "... post operative rehabilitation treatment" the total cost would be "Seventeen thousand all up" so that the range of the future surgery would be "... 14 to $17,000."[42]

[12] In cross-examination Dr Soares indicates that the plaintiff has "... certain trigger points (in his left hand) and touching those would trigger intense pain, then that is what - is the problem in Paul Drew's case."[43] He further confirmed that the plaintiff "... has a significant permanent impairment."[44]

[13] Dr Soares further confirmed the assistance the plaintiff needs in the various "...activities of daily living"[45] and that whether the plaintiff is likely to undergo any "...future operative treatment is completely up to him".[46] He stated that the further treatment "... would only really make about a 2 to 3 percent difference in his total whole person impairment"[47] and "... on balance you (he) would hope that his pain would be reduced significantly."[48]

[14] Dr Coleman's also gave evidence that in respect of carpal tunnel release "...generally persons are back at light duties at work, for example, within two weeks and heavier manual duties within three, four weeks".[49] Dr Coleman further stated in respect of the plaintiff's "left limb" that he "... would normally expect that he would be in some sort of splint for a minimum of six weeks with that sort of injury because he had tendon and nerve injuries, and then there would be a - less splints but still some splintage and an extended period of hand therapy for up to three months, and possibly longer with intermittent splintage."[50]

[15] Dr Coleman confirmed in his report of 15 February 2005 (three years two months post injury) that the plaintiff "... could not give a finite answer ... on the number of hours required for assistance ... He said some days he can care for himself quite well and other days requires more. It is mainly for dressing, food and dishes. Most assistance is provided by his partner who has a carer's pension for this task."[51]

[16] Dr Coleman's assessment of the plaintiff's "permanent impairment" is "... 28% whole person impairment."[52]

[17] With respect to "treatment in the future" Dr Coleman says "There is no absolute indication of any of these procedures, and they will make minimal difference to his long term function. If pain develops in the little finger metacarpal, this would then indicate that he should have the joint replaced."[53]

[18] In Dr Coleman's further report of 19 June 2007 he was of the view that in respect of further surgery his estimate was that the plaintiff had "... a 50% chance that he will require any of the above procedures" and that "The joint replacement will not be done to improve his range of movement, and simply to reduce pain from any arthritis."[54] It is to be noted that both Dr Soares and Dr Coleman are in agreement on this issue.

[19] The witness Vayro confirmed that he was the plaintiff's assistant on the day of the incident and that when the plaintiff commenced to cut the Weather-tex board he "...was at the other end".[55]

[20] Vayro confirmed that "... about half way through the board" he was asked "... to go behind and secure the other end".[56] He stated that he did not see "... exactly what happened", as at the time of the incident he was positioned behind the plaintiff.[57] After the incident occurred he sought assistance for the plaintiff.

[21] In cross-examination Vayro could not remember that there was any timber straddling the trestles by way of support for the Weather-tex board to be cut, nor could he remember the piece of timber "... dangling outside of the trestle".[58]

[22] Generally Vayro seemed to be doing his best to recall the sequence of events on the day of the incident but, he was unable to remember what occurred with any degree of detail or accuracy. His evidence was of relatively limited value.

[23] The witness William Micheal O'Shea ("O'Shea") was a registered builder and knew the plaintiff from his army service. He was working with the plaintiff on the day of the incident. Essentially his evidence corroborated that of the plaintiff in respect of the system of work which was adopted on the day and he "... was actually the supervisor on the job and controlling the job" that day.[59]

[24] O'Shea described the "... work station that the plaintiff had set up on this day" in the following manner:[60]**

"There was two saw stools with a couple of planks probably 10 to 12 foot long on it where the Weather-tex was resting on when it's being cut."

He regarded this "... as a solid safe stable working platform."

**[25] After the incident O'Shea states that he noticed that the Weather-tex board "... had been cut three-quarters of the way along, and it was laying on the ground."[61] He also noticed the saw lying on the ground with "... the blades touching the ground" and with the guard not having "... retracted to cover the blade."[62] O'Shea tested the saw by manipulating the guard and says that "... it showed that the guard was actually sticking and jamming"[63] and that he did this several times but the guard jammed "Probably only sometimes."[64]

[26] The plaintiff's partner, Jennifer Canning ("Canning"), gave evidence that from in or about 1998 the plaintiff "... did all the outside work ... He did all the lawn mowing and the trimming of the trees and the gardens." She states further that from about this time she and the plaintiff "... played golf together and ten pin bowling."[65]

• She went to the scene of the incident and saw "Paul's lying on the ground with blood all over him;"[66]

[28] Canning further states that when the plaintiff came home from hospital after the incident:

• he could not "... dress himself ... attend to himself when going to the toilet ... brush his teeth ... feed himself ... cook for himself".[68] She did these things for him and prepared a schedule of the time spent doing them.[69]

[29] Canning states further that it was necessary for her to administer medication to the plaintiff at this time "...because he had no hands to do it with" and that this would be done "... a couple of times during the night;"[70]

• she had to take him to the toilet during the night; "In the first few days it was quite frequent because he was losing fluid from his body";[71]

• she was required "... to change the bandages on his left arm from time to time;"[72]

• she had to take the brace off his left arm;[73]

• after each operation she had to care for the plaintiff and she is still required to "... button his shirts; tie his shoelaces ... Do up belts."[74]

[30] In cross-examination Canning confirmed that in or about 1998 as the plaintiff's partner she paid the bills; undertook the shopping; cleaned the home; prepared all the meals.[75]

• "In May 1998(3 years 7 months pre-accident)... He (the plaintiff) did suffer a lot of back pain" and that "... he hasn't recovered completely, he does have back pain".[76]

• "...in May 1998 he (the plaintiff) ceased golf completely because of his headaches, back and knees"[77] and that "... his back, his arms and his legs made it difficult for him to garden."[78]

• the plaintiff "in July 1999 ... was a person who was prone to ... 'fly off the handle' ... could not ... handle any form of stress ... (and described) both of his knees - as being quite stuffed".[79]

• the plaintiff has adapted to his disability in respect of dress and generally the plaintiff "... will wear a polo shirt or a T-shirt or something of that sort, when he can."[80]

• she continues to clean the plaintiff's false teeth and "cut up his food".[81]

[32] Two engineers Brendan McDougall ("McDougall") and Frank W Grigg ("Grigg") gave evidence and tendered reports.[82]

[33] McDougall's report of 2 December 2004 confirms that he inspected "... a Makita Model 5806B circular saw with Serial Number 225507K..." and he took photographs of the saw "as supplied" and that "The lower moveable guard was observed to be jammed in the fully open position exposing the saw blade. No other damage or defect was observed on the saw."[83]

[34] McDougall removed the saw blade and further photographs were taken which he states "... illustrate how the trailing edge of the moveable guard has become wedged as it deflected laterally and partially moved over/onto a protruding structure in the guide path formed by the fixed upper guard."[84]

• "By applying moderate force, the moveable guard was able to be forced clear of this obstruction. Once clear, the lower moveable guard closed and appeared to operate in the expected manner;"[85]

• "The author was readily able to reproduce jamming by inducing some lateral movement of the lower moveable guard as it opened and approached the limit of travel. Force required to achieve this would be described as slight. This lateral movement is a combination of clearance in the lower guard attachment mechanism and elastic bending of the guard;"[86]

• "This potential for jamming is an undesirable design feature of the saw which should have been identified and rectified had the product been subject to an appropriate risk assessment. There are a variety of techniques such as HOZOP studies which assist manufacturers identify such potentially damaging situations. As contact with the rotating saw blade is an extremely common mechanism of serious injury, any hazard study should strongly focus on reliability of safety guards."[87]

[36] In his second report of 30 October 2007 McDougall further states:

• "The author has had the opportunity to observe a number of Makita Model 5806B circular saws. On some saws the size, shape or position of the rill in the upper guard is such that the jamming of the lower guard was not possible. On other saws the stop has been modified, as illustrated in Figure 9, to limit how far the lower guard opens and to prevent contact with the rill.**

The problem with the guard jamming is therefore likely to be a combination of inadequate design, inadequate design specification provided to the manufacturer, or lack of quality control by the manufacturer.

Monitoring of products to ensure compliance with design specifications is a critical final step in any product quality management or risk management system.

Irrespective of where the problem arose, the consequence (guard jamming open) should have been identified during audits and risk assessments prior to the saw being supplied to end users."[88]

[37] During the course of McDougall's evidence the following exchange occurred:

"HIS HONOUR: ... Is it intended that the guard on that implement there be designed to retract automatically to the closed position after it has been moved forward to expose the blade or is the guard also designed to be locked into the open position thereby exposing the blade until the guard is again closed manually or by a deliberate action?-- No, your Honour, it is designed to always self-close.

But that particular guard doesn't always self-close, does it?-- That's correct.

It sometimes self-closes and it can be made not to self-close, in other words, it can be made to remain in the open position?-- Yes, your Honour.

Is that correct?-- Yes, your Honour."[89]

[38] McDougall was further asked in re-examination:

"MR LEE: You speak of lateral movement, in your view, would it be possible to perform that lateral movement in moving the control lever of the guard forward without consciously knowing you're doing it?-- Yes.

And in your view if the design of the machine is such that the operator could do so, would that constitute a design defect?-- A design or manufacturing defect, yes."[90]

**[39] In the same paragraph McDougall further described the noise made by the saw when in operation as "Very loud".[91]

[40] Grigg inspected the saw on 20 July 2005 and states in his report "As made available, the bottom guard of the saw was seen to be jammed with its control lever in the fully forward position, as shown in Photo 1 after the blade was removed."[92] He states further "It was found during the inspection that it was possible to cause the bottom guard to jam simply by pushing forwards on the control lever so as to move it to the approximate position shown in Photo 1."[93]

[41] In his conclusions Grigg states among other things: "Although it was found that the bottom guard of the saw could be made to jam on a rib within the top guard, this would only occur if the guard was open beyond its working range by applying a forward force to the control handle of the guard."[94] This "... would not occur during normal operation of the saw."[95]

[42] In cross-examination, the following exchange took place:**

"MR LEE: ... Dr. Grigg, are you saying that it is on your inspection possible to operate this saw so that by pulling the lever back far enough you can cause it to jam?-- I say by pushing it forwards far enough you can cause it to jam.

Or by moving it - shall we use a natural [sic] term. By moving the control lever far enough you can cause it to jam?-- That is correct.

Yes. Are you saying in your view that the saw is designed so that it will do that?-- Well, it is certainly manufacture [sic] so that can happen. Whether it was designed so that could happen I'm not sure.

Well, let's assume that the design - the manufacturing is in accordance with the design it would follow-----?-- If that is the case then yes - it was designed.

Yes. Is it your view that a saw so designed is one which is safe to use?-- I don't believe it is unsafe.

Would you accept that a aw [sic] so designed has the potential to cause injury if in fact the guard is jammed open?-- Well, anything which causes the guard to jam open can obviously leave the blade exposed and that is undesirable.

So you're agreeing with me, aren't you, that a saw so designed is capable potentially of causing injury?-- Well, saws are capable of producing - causing injury at any time.

All right?-- Look, they have to be used correctly is the important thing about any portable saw.

Would you accept that by virtue of the feature - the design feature which allows the guard to be jammed open by virtue of that feature the saw is capable of causing injury?-- By virtue of that feature, yes, it is.

**[43] Further in cross-examination Grigg agreed that:

• the "injunction" on page 4 of the instruction manual accompanying the saw refers to "... someone not deliberately or consciously or knowingly wedge or tie the guard open" and further that "... nowhere in the manual does it warn of the possibility or the potential for this guard to be wedged open inadvertently";[97]

• "... in circumstances where there's the risk of a guard being jammed open inadvertently ... that, in the least, the manufacturer should give warning of that fact";[98]

• "... a design that allowed for that guard (that is the guard of the saw) to be jammed open inadvertently would be a faulty design;"[99]

• "... if there was a risk assessment conducted under your control of such a device, for the purpose of seeing whether that device could be released onto the market, you'd send it back for rectification, wouldn't you?-- Yes;"[100]

• "You would never have allowed this saw to get onto the market, would you?-- No."[101]

[44] In respect of the saw the defendant made the following concessions:

(i) The design of the machine is such that the guard should return to the closed position within 0.3 of a second;[102]

(ii) "For the purposes of the Trade Practices claim it is a deemed manufacturer of the saw";[103] and

(iii) "For the purposes of the general law negligence claim, it caused the saw to be manufactured, it packaged and marketed the saw".[104]

[45] As stated in paragraph [1] above the plaintiff's case is based upon a breach by the defendant of s 75AC of the TPA and/or a breach of the common law duty of care owed to the plaintiff.

[46] Miller's Annotated Trade Practices Act ("Miller") states:[105]**

"Section 75AC defines the term 'defect' for the purposes of the operative provisions of this Part (Part VA).

The standard to be adopted in determining whether or not goods are defective is an objective standard based on what the public at large, rather than a particular individual, is entitled to expect. The level of safety is that which the community is entitled to expect. However, the Act does not require goods to be absolutely free from risk: ACCC v Glendale Chemical Products Pty Ltd [1998] FCA 180; (1998) 40 IPR 619; ATPR 41-632; Glendale Chemical Products Pty Ltd v ACCC (1998) 90 FCR 40; (1999) ATPR 41-672.

The term 'defect' is widely defined. Section 75AC(1) defines 'goods' as having a defect if their safety is not such as persons generally are entitled to expect.

Section 75AC(2) sets out a series of matters to which regard is to be had in determining whether goods are safe, being:

• the instructions or warnings provided with the goods;

• what might reasonably be expected to be done with or in relation to the goods; and

• the time when they were supplied by the manufacturer."

"The relevant test[107] is what 'persons generally are entitled to accept'. This is different to the common law 'reasonable man' test. It is necessary to look to the class of persons to whom the product is directed or marketed, including 'the astute and the gullible, the intelligent and the not so intelligent, the well educated and the poorly educated' (Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45; 74 ALJR 573; 169 ALR 677; 46 IPR 481; [2000] AIPC 91-540; ASAL 55-043; (2000) ATPR (Digest) 46-201), and determine what members of that class would be entitled to accept. However, as Smithers J observed in Ransley v Black & Decker (A/Asia) Pty Ltd (1977) 3 TPR 138 at 140; 2 TPC 343:

'It has to be remembered that this representation [concerning an electric saw] is not made to all and sundry, to the dwarfs, to the giants, to the blind, to the deaf - it is made by reference to the reasonable conditions which must exist in relation to the operation of any machine of this kind. Obviously it is a dangerous machine ... [W]hen you approach a safety razor you have to take note that it is sharp and you have to adjust it accordingly. When it comes to machines like this which are likely to lop off limbs, anybody knows that great care must be taken.'"

[48] The fundamental principles of the duty of care owed by one to another are long established and have been restated in various ways in a legion of case law since Lord Atkins' pronouncement in Donohue v Stevenson (1932) AC 562 with the two dominant principles being those of proximity and foreseeability. Equating those two principles to the instant case as the plaintiff submitted:[108]**

"The standard of care required by a manufacturer is proportional to the danger involved.[109] A relevant consideration in determining the standard of care required is how easily the danger could have been eliminated.[110]

If the manufacturer fails unreasonably to test a product before it is released to the market, and as a result a defective product is released, the manufacturer cannot rely on the intermediate examination to detect the defect. Nor can the manufacturer deflect liability by pointing to a negligent intermediate examination.[111]

The standard of care is irrelevant if a product has been defectively designed and the cause of action is based on breach of warranty, either in contract or by statute.[112]

The standard of care in an action in negligence is relevant when a product is defectively designed.[113]"

[49] The plaintiff's submissions on liability include the following:

• The plaintiff adopted a safe system of work in carrying out the task in hand on the day of the incident;[114]

• The evidence of the expert witness McDougall is of assistance to the court and McDougall "...makes the point that the high reliability of an engineering/design control as against a behavioural/procedural control leads to a strong obligation to ensure that risks are obviated by the design process."[115]

• The conclusions reached by expert witness Grigg in his evidence seem to be based on the premise "... that the plaintiff knowingly (or as is pleaded in paragraphs 9.2.2; 10.2; 10.3; 10.5; 11.3; 11.4; 11.5; 11.7; and 12 of the defence) 'deliberately' jammed the guard ... (and) the Court would not accept that premise."[116]

• That the only evidence which the court should accept for the guard "jamming" in the open position "... is that of Mr McDougall, whose view that the jamming is a design or manufacturing fault was not challenged."[117]

• Ultimately the plaintiff submits that the plaintiff's case establishes that:**

(b) It is a defect of which the defendant knew or ought to have known;

(c) There is no factual basis to support any allegation that the plaintiff knew, or ought to have known of the risk that the guard would not retract into place;

(d) The failure to properly design the saw, and the failure to take adequate steps to ensure the saw as designed was safe, amount to both relevant negligence on the part of the Defendant and a breach of the TPA, and there is no basis for contributory negligence;

(e) That negligence was causally connected to the Plaintiff's loss and damage."[118]

**And the defendant has failed to adduce evidence that would persuade the court to reach any contrary finding.

• As a result of the foregoing "The Plaintiff should succeed on the liability issue."[119]

[50] The defendant's submissions on liability include the following:

• That the court "... will ultimately find that the plaintiff has failed to discharge the onus of proof that rests with him of establishing the circumstances in which this accident occurred."[120]

• That "The plaintiff simply does not know the circumstances in which his hand was injured and is simply inventing a story designed to exculpate himself from his own inadvertence and to put blame on the defendant following the fortuitous receipt of a recall notice relating to this particular saw model."[121]

• That the plaintiff's credibility is in question in that he had told his instructing solicitor and the witness McDougall that at the time the incident occurred "... he had the handle of the saw on the saw that he was using at the time" but that was proved to be incorrect when the witness Grigg found the handle still wrapped in its "plastic container".

• That "... the plaintiff could not say what happened to the saw after he cut his hand."[122]

• That the plaintiff's case "... is sheer speculation" and "the plaintiff acknowledged that he didn't know at the time that he cut his hand that 'the guard didn't close'."[123]

• That "The plaintiff's version of the alleged incident is entirely fanciful" that is where the plaintiff says in his evidence that "I got to approximately 3 to 400 mm from the end and for some unknown reason the board fell and I tried to grab hold of the board as it was falling because that's the natural instinct right I tried to grab hold of the board but the board wasn't there."[124]

• That the court would accept "The more plausible explanation" as to how the incident occurred and that is "... that the plaintiff had informed Mr McDougall that he had cut to within 150 to 200 mm from the end of the cut" when "... only the bisected, unsupported, piece of 'Weathertex' that dropped away."[125]

• That "... the evidence of Mr O'Shea should be rejected" as he "had never told anybody of his observations of the accident scene for six years until the Thursday before he gave his evidence"[126] and essentially that the plaintiff's version of how the incident occurred should be rejected and the plaintiff has failed to prove his case.

[51] Essentially the plaintiff submits that he is entitled to a substantial award of damages under the various heads for which evidence has been adduced. Supplementary submissions were exchanged between the parties in respect of "whether the receipt of a Carer's Benefit by the Plaintiff's de facto should have any effect on the Plaintiff's claim for Griffiths v Kirkmeyer damages"[127] with the plaintiff contending that the receipt of a carer's benefit by the witness Canning should not impact upon any award to which the plaintiff may be entitled for gratuitous services.

[52] The defendant concedes that the plaintiff sustained "a serious hand injury ... And obviously in terms of damages it calls for an assessment of significant loss of use of the left hand,"[128] but notwithstanding the plaintiff's serious injury he has "overstated and exaggerated" his incapacity to do a number of activities for which he now says that he requires assistance and that overstatement and/or exaggeration should be reflected in the assessment of damages.

[53] Further to this in respect of the plaintiff's claim for gratuitous services the fact that the witness Canning receives a carer's benefit should be taken into account in the assessment of any damages to which the plaintiff may be entitled under this head.

[54] On a review of all of the evidence and the submissions made, I make the following findings in this proceeding:**

(i) On the 31 day of May 2001 the plaintiff purchased a Makita circular saw model 5806B Serial Number 225507K ("the saw") from Trade Tools (Qld) Pty Ltd, Smith Street Capalaba, as a new saw and completed and registered a warranty card following the purchase as supplied by the defendant;

(ii) The saw was manufactured and supplied by the defendant "in trade or commerce" within the meaning of section 75AC of the TPA;

(iii) On 19 December 2001 the plaintiff was engaged in assisting others to renovate a neighbour's house;

(iv) In the course of that work the plaintiff was operating the saw to cut a "Weathertex" cladding sheet 3.6 metres long, by 300 millimetres wide, by 12 millimetres in thickness ("the Weathertex");

(v) The Weathertex was supported by two lengths of timber board, each of which was of the dimensions of 3.6 metres long, by 200 to 250 millimetres in width, by 50 millimetres in thickness, placed on top of two saw-horses approximately 650 millimetres high which formed the working-bench;

(vi) The plaintiff intended to cut the Weathertex into two pieces lengthwise so that each piece when cut would be 150 millimetres in width;

(vii) At the time the plaintiff commenced to cut the Weathertex, the witness Vayro was positioned in front of the plaintiff for the purpose of holding the Weathertex in place on the working-bench;

(viii) When the plaintiff had cut approximately half way through the Weathertex the witness Vayro moved from his position in front of the plaintiff to a position behind the plaintiff to continue to assist him in the cutting process;

(ix) When the plaintiff reached a position in the cutting process between 400mm and 200mm from the end of the cut, the Weathertex fell from the working-bench as a result of which the plaintiff instinctively attempted to grab hold of the Weathertex but instead grabbed hold of the exposed blade of the saw thereby suffering serious injuries to his left hand ("the incident");

(x) The safety guard of the circular saw was jammed or stuck in the open position and was therefore not able to retract to the closed position when removed from the cut;

(xi) The saw had a design defect in that it was possible for an operator of the saw in the normal course of its operation to "jam" or "stick" the safety guard, either consciously or unconsciously, in the open position because of "the trailing edge of the moveable guard" being capable of becoming wedged "over onto a protruding structure in the guide path formed by the fixed upper guard" by only a slight lateral movement.

At a glance

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Judgment (293 paragraphs)

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Legislation Cited (2)

Cases Cited (7)