Evans v Ausgrid

Judgment 1The plaintiff was born in 1973. On 29 October 2010 he was seriously injured in the course of his employment. He says that his injuries were caused by the fault of the first and second defendants. The first defendant was, and still is, his employer. The second defendant was the driver of a truck that was involved in the incident in which the plaintiff came to be injured. 2The third defendant is the CTP insurer of the truck that was being operated by the second defendant and also of a separate truck that was under the command of the plaintiff. 3The plaintiff has alleged that his accident falls within the bounds of the Motor Accidents Compensation Act 1999 (the "MACA"). The first and second defendants agree, although do not concede that there was any fault on their respective parts. These defendants allege contributory negligence if they are found to have been negligent themselves. 4If the matter falls under the MACA it will still be necessary to consider the Civil Liability Act 2002 (the "CLA") in assessing whether there was any fault on the part of the first or second defendants. Section 5B of the CLA will be of particular relevance. 5The third defendant has denied indemnity to the first defendant because it says the circumstances of the plaintiff's injury do not fall under the MACA. The third defendant says the plaintiff was injured as a result of a defective system of work that was imposed upon the plaintiff by the first defendant. 6The case is unusual to this effect: the plaintiff's evidence was almost entirely unchallenged. He was asked some questions about overtime but nothing else about damages. In respect of his version of the accident, it was entirely accepted, other than on one point. I will return to that point below. 7The plaintiff's background, his description of the accident and his progress since the accident are all comprehensively set out in his statement (Exhibit C). Exhibits D and 1D1 provide some further detail. 8I do not think it necessary to set out the contents of the above documents. Because of the acceptance of the plaintiff's version of the accident, subject to the one point, I think the following is an adequate summary of the facts to enable the resolution of the liability issues. 9There were three vehicles present at the scene of the accident. They were referred to by different names. I will refer to them as follows: the plaintiff was in charge of a winch truck. The second defendant was driving a tow truck. The third vehicle was an elevated working platform (an "EWP"). 10The work being performed on 29 October 2010 was the placement of electrical cables along a row of telegraph poles at a place called Bob's Farm. This location is in the country near Nelson Bay. The vehicles operated along an unsealed service road. 11The project had been occurring for some months but this was the plaintiff's first day on this job. The exhibits contain a number of photographs of the winch truck. It can be seen that it has three spools, or drums, on its tray as well as a platform that is extended to the passenger side when the vehicle is stationary. The mechanics of the platform can be seen in Exhibit 3D5. 12There is also a cage on the back of the truck, which houses the controls to operate the winch function of the drums. This function is powered by an auxiliary motor, also located on the tray. These controls included a 'dead man's pedal' so that the winches would only engage if an operator was in the cage and depressing the pedal. The pedal did not however inhibit the spinning of the reels when they were not being used as winches. In other words the pedal did not have to be depressed if the reels were freewheeling. 13At the commencement of a day's work the reels were wound with ropes. The first task was to attach the ropes to the rear of the tow truck. The middle rope was attached to the tow bar of the tow truck. The other two were hitched to the respective sides of the tray. The tow truck would then pull the ropes, with the reels freewheeling, until a telegraph pole was reached. At this point the EWP would be introduced to lift the ropes to the spools located on the top of the pole. The ropes would then be reattached to the tow truck and pulled to the next pole. 14When the ropes had been extended along a certain number of telegraph poles the electric cabling would be attached to the ropes and then, by use of the winches on the winch truck, the cabling would be pulled back to the truck. 15On 29 October 2010 the plaintiff parked the winch truck in the position seen in the photographs and deployed the platform. The second defendant positioned his truck so that the three ropes could be attached to it. There was a large tree stump immediately behind the winch truck. It was important to ensure that the ropes did not 'snag' on the stump. 16Once the ropes were attached the second defendant set off along the service road. His vehicle had a four wheel drive capacity, which was engaged. Although the second defendant had driven the tow truck for some years he had only used it for this exercise on some three or four previous occasions. 17About 50 metres from the winch truck the tow truck came to a steep incline which it needed to traverse in order to reach the telegraph pole. As it began the ascent the plaintiff was standing on the platform talking to a Mr Pralica who had driven the EWP to the site. Mr Pralica was on the ground next to the passenger side of the winch truck. 18The plaintiff was standing on the platform, near one of the reels. He said this was the normal position for the operators to stand. Mr Pralica confirmed this practice although said that sometimes the operator might be on the ground or in the cage. There was no instruction ever given by the first defendant prohibiting an operator standing on the platform when the reels were freewheeling, at least to the extent allowed by an inbuilt disc brake (See T 52.10). 19The second defendant, about a third of the way up the incline, brought the tow truck, then in second gear, to a stop because it lacked power to continue the ascent. As a result of coming to a halt the freewheeling reels also stopped. They only did so for a very short time because the second defendant engaged first gear and set off again. 20The result of the tow truck continuing its journey was to tighten the ropes to such an extent that when the renewed tension reached the winch truck the latter was "jerked" in either a forwards or sideways motion. The result of the jerk was to throw the plaintiff off-balance and backwards. His left leg "flew out" and his left boot was "dragged down into what might be called the pinch-point between the lower part of the drum and the A-frame support." 21Because the reel continued to rotate the plaintiff's left foot was effectively stuck in the mechanism. When the plaintiff was able to extricate his left foot he saw that it had been terribly injured. He said to Mr Pralica "I think I've lost part of me leg." He was correct because he soon underwent an amputation of his left leg below the knee. 22It would be an understatement to describe the plaintiff's progress since his accident as other than remarkable. Not only has he returned to his employment but he has specifically requested that he be treated no differently to any other employee. He is once again a full-time worker, now operating a crane with the only advantage being given to him in the form of a modification to the foot controls of the crane. He is also not required to work on winch trucks because of the disturbing memories he has of his accident. 23The one point referred to above upon which the plaintiff was, in cross-examination, taken to task was the extent of the jerk that was transmitted through the ropes to the winch truck once the tow truck continued its journey up the incline. 24The plaintiff described the jerk as "aggressive" or "big". It was suggested to him that the jerk was not out of the ordinary but rather a normal reaction to the tow truck once again setting off on its journey. 25I entirely accept the plaintiff's evidence. I reject the notion that he has introduced a large jerk in order to suit his case. This plaintiff is a most impressive man. I could not contemplate that he would engage in an alteration of his memory to suit his case. The absolute lack of challenge to his evidence on effectively every other aspect, both as to liability and quantum, is a compelling indication of his honesty. 26In addition the second defendant gave oral evidence in which he said there was a "big jerk". 27There were other aspects of the second defendant's evidence that were also important. These included the following: (a)As mentioned above, the day of the accident was only the third or fourth occasion upon which he had used the tow truck to carry out the same operation. (b)He had never previously encountered a precisely similar circumstance including pulling the ropes up a steep slope. (c)The surface was sandy, uneven and made up of a number of different materials even including old tyres. (d)He initially set off from alongside the winch truck with four wheel drive engaged but in second gear. (e)He remained in second gear until he reached the hill and then continued up the hill in the same gear. (f)About one third of the way up the hill he realised that his truck lacked the power to continue. He could not engage first gear while driving for fear of the wheels becoming "bogged". His description gives force to the uncertain nature of the surface beneath his wheels. (g)In order to get going again, and to avoid being bogged, the second defendant needed to apply extra power and extra acceleration in order to continue up the hill. (h)Having applied the extra power and the ropes having become taut, the second defendant felt a "big jerk". (i)The second defendant described the effect in this way: "As I knew I had to use a bit more power to get up the hill and as I did I could feel the ropes get taught and I was taking off it - what I know now it's obviously moved the truck because of the power the jerk obviously moved the winch truck." (T 109.49). The consequence was to cause the plaintiff to slip and fall so that his leg became caught up in the spinning spool. (j)The second defendant agreed the jerk was "quite out of the ordinary." (T 132.39). (k)The second defendant agreed that he could have stopped before the hill in order to change into first gear. He could not say if starting off again would have caused a smaller jerk; however it seems obvious that would have been the case because the power necessary to continue would have been significantly less. (l)The second defendant was aware the plaintiff was standing on the platform of the winch truck. He agreed that had the plaintiff been in the cage then he would not have been able to see any hand directions given by the plaintiff. It would have been apparent to the second defendant that the plaintiff was in the vicinity of the freewheeling spools even if he could not say precisely how close he was to them. 28The evidence given by Mr Pralica was generally uncontroversial. He did however suggest that the tow truck was transferred from two wheel drive to four wheel drive after it stopped on the hill. This evidence was impressionistic. I prefer the evidence of the second defendant who was driving the vehicle and said it was always in four wheel drive mode, but that he started off in second gear.