FITZPATRICK -v- ROBERT NORMAN JOB AND WENDY BARBARA JOB T/AS JOBS ENGINEERING & ORS [2007] WASCA 63 (20 March 2007)

FITZPATRICK -v- ROBERT NORMAN JOB AND WENDY BARBARA JOB T/AS JOBS ENGINEERING & ORS [2007] WASCA 63 (20 March 2007) - WASCA 2007 case summary — Zoe

[39]

The learned Trial Judge erred in law and fact in failing to find that the second respondent, which had undertaken the responsibility of completing the machine, and which had imported and supplied the machine to the appellant, owed a duty of care to potential users of the machine to install appropriate safety barriers and emergency stop switch, in accordance with the standards of a competent and experienced machine designer/engineer and relevant Australian Standard and WA regulations, and in accordance with appropriate safety criteria.
The learned Trial Judge erred in law and fact in failing to find that each respondent breached their duty of care, in the case of the second respondent, by failing to incorporate relevant safety features in the machine as referred to in ground 2, and in the case of the first respondent, by failing to provide adequate information and advice to the effect referred to in ground 1(b).
The learned Trial Judge erred in law in applying a subjective, rather than objective, test to the issue of breach of the duty of care on the part of the first and/or second respondents (including whether the respondents should have been aware of relevant design criteria, Australian Standards and regulations, and applied the same).
[Abandoned]
The learned Trial Judge erred in fact in failing to find that the first respondent could and should have installed an emergency switch in the vicinity of the splitter box, and if that had been done, that the injuries to the appellant would have been avoided.
[Abandoned]
The learned Trial Judge erred in law in applying an incorrect test of causation, and in particular, in applying a retrospective test by reference exclusively to what the appellant actually did, rather than assessing whether the respondents' wrongful conduct had generated the risk of injury, and whether or not the accident would have occurred if the respondents had not breached their duties.
The learned Trial Judge erred in law and fact in finding that the respondents' acts or omissions were not a cause of accident, because the action of the appellant in putting his leg in the splitter box was a deliberate and conscious act whereas the purpose of safety barriers was to protect against negligent as well as inadvertent acts on the part of an operator.
The learned Trial Judge erred in law in approaching the issue of causation on the basis that it was either the conduct of the respondents or the conduct of the appellant which caused the accident without adequately considering whether there were concurrent causes in the circumstances of this case. The learned Trial Judge should have found that the respondents' breaches of duty caused or contributed to the accident, and then considered whether or not the appellant was guilty of contributory negligence, and if so, her Honour should then have considered the appropriate reduction of damages recoverable on account of that contributory negligence.
The learned Trial Judge erred in law and fact in finding that even if a barrier had been installed, it is just as likely that the appellant would either have climbed over the barrier, or removed the barrier, when that was mere speculation, and in any event, there would not have been sufficient time to climb over the barrier to prevent a misaligned log becoming jammed, and the appellant would have suffered certain and serious injuries if he actually stood in the bottom of the splitter box whilst it was operating."

[200]

"Now, there was no reason, Mr Job, if you had been requested to, you could not have put a barrier guard on the operator's cabin or on the operator's platform prior to shipping, which would have been affixed between the metal bar which you can see on photograph B, running behind those two people standing there and the metal pole that supports the console on photograph C, next to the operator's knee there?---There was no point in putting anything there because they had to take it off when it got to the cabin.

...

But if you had told Ridolfos that it was necessary to have the barrier and that you would not have the machine shipped without a barrier being there, they would have had to build the cabin around the barrier, not so?---That's just being silly. There's no point in putting anything there to build round.

Well the point is, Mr Job, that if it is necessary to have a barrier to protect the operation from the splitter box, then a barrier could have been affixed on this operator's platform without a cabin having been built at that stage?---What's the point of having a barrier when there's no cabin to fix it to.

...

In the same way you could have, on the left-hand side there affixed another metal bar or pole and the same on the other side of the trailer and put a barrier round from that one metal bar across to the other car and therefore blocking off the access of the operator to the splitter box?---It's just not practical.

It would certainly have been better to have a barrier there and preventing the operator to put his foot in than having no barrier at all?---Well, a barrier should have been put in when the cabin was built.

But the barrier did not have to be put in on the cabin, it could have been put next to the operator's platform?---No, there's no room for it.

The metal plate that pushes the splitter box mechanism does not quite move right back to the floor of the operator's cabin. It leaves about 15 centimetres, 150 mils, according to Dr Chew's measurements. Is that right?---Did Dr Chew manage to check the length of the stroke of the rams that were still available?

Please answer my question - - -?---That case comes right back to the floor.

Well, this is not what Dr Chew said?---I don't care what he said because he didn't do a proper report on it. He would have seen there was still available stroke lifting the rams and the whole unit was adjustable so it could open fully, which would take to pushing phase right back to the floor of the cabin or deck as you call it.

...

I'm sure, Mr Job, with your ability to, you know, think up a machine like that there would have been ways and means to fix a barrier?---Yes, fix it on the side of the cabin or where it's out of the way - - -

On the side of the platform of the cabin?---On the side of the cabin when it's built.

But there was no reason why you could not have fixed it to a machine like this as shown on photograph B of exhibit 30 even if the purchaser of that machine never wanted a cabin?---There was just no point in putting anything on it because if I had to build it, it would be redone.

...

You have heard that Dr Chew was of the opinion that the machine should have had a barrier in spite of all the other bits and pieces that it had?---Across the cabin face.

Dr Chew was of the view that there should have been a barrier between the operator and the splitter box?---I agree with that but it had to be put on once the cabin was built."

[249]

The learned Trial Judge erred in law in applying an incorrect test of causation, and in particular, in applying a retrospective test by reference exclusively to what [Mr Fitzpatrick] actually did, rather than assessing whether the respondents' wrongful conduct had generated the risk of injury, and whether or not the accident would have occurred if the respondents had not breached their duties.
The learned Trial Judge erred in law and fact in finding that the respondents' acts or omissions were not a cause of the accident, because the action of [Mr Fitzpatrick] in putting his leg in the splitter box was a deliberate and conscious act whereas the purpose of safety barriers was to protect against negligent as well as inadvertent acts on the part of an operator.
The learned Trial Judge erred in law in approaching the issue of causation on the basis that it was either the conduct of the respondents or the conduct of [Mr Fitzpatrick] which caused the accident without adequately considering whether there were concurrent causes in the circumstances of this case. The learned Trial Judge should have found that the respondents' breaches of duty caused or contributed to the accident, and then considered whether or not [Mr Fitzpatrick] was guilty of contributory negligence, and if so, her Honour should then have considered the appropriate reduction of damages recoverable on account of that contributory negligence.
The learned Trial Judge erred in law and fact in finding that even if a barrier had been installed, it is just as likely that [Mr Fitzpatrick] would either have climbed over the barrier, or removed the barrier, when that was mere speculation, and in any event, there would not have been sufficient time to climb over the barrier to prevent a misaligned log becoming jammed and [Mr Fitzpatrick] would have suffered certain and serious injuries if he actually stood in the bottom of the splitter box whilst it was operating.
The learned Trial Judge erred in law and fact in finding, without supporting evidence or reasons, that the absence of a guard was not a contributing factor to the accident, and in failing to find that an emergency switch should have been installed, and in failing to consider the effect of the Occupational Safety & Health Act (and regulations) when they were issues at trial."

[256]

[cross-examination by counsel for V & D Ridolfo at AB 224]

(d) During the period up to and including the supply of the machine to V & D Ridolfo, Jobs Engineering did not, on the occasions when it incorporated a cabin with the machine, include a barrier guard between the cabin and the splitter box. [cross-examination by counsel for V & D Ridolfo at AB 224]

(e) Before Jobs Engineering and V & D Ridolfo entered into the contract for the supply of the machine, Mr Job arranged for representatives of V & D Ridolfo to inspect two existing machines he had constructed. Those machines incorporated cabins. Neither cabin had a barrier guard between the cabin and the splitter box. One cabin had an opening between the operator's seat and the splitter box and the other cabin comprised a back wall and a roof with the side facing the splitter box being entirely open. [cross-examination by counsel for V & D Ridolfo at AB 220 - 222 and 224 - 225]

(f) Mr Job did not inform representatives of V & D Ridolfo that the cabin which V & D Ridolfo was proposing to construct should have any particular safety features. [cross-examination by counsel for V & D Ridolfo at AB 231]

(g) Mr Job did not inform representatives of V & D Ridolfo that the cabin which V & D Ridolfo was proposing to construct should be fully enclosed. [cross-examination by counsel for V & D Ridolfo at AB 232]

(h) Mr Job did not give any instructions to representatives of V & D Ridolfo in relation to how logs within the splitter box should be manoeuvred or how jams in the splitter box should be remedied. [cross-examination by counsel for V & D Ridolfo at AB 234 - 235]

(i) In late 1997 Mr Job travelled to Perth, at the request of a representative of V & D Ridolfo, and saw the cabin which had been constructed on the machine. Mr Job did not mention to representatives of V & D Ridolfo any concerns about the safety of the cabin. [cross-examination by counsel for V & D Ridolfo at AB 236]

(j) After Jobs Engineering supplied the machine to V & D Ridolfo, Mr Job commenced constructing fully enclosed cabins on new machines. This change in construction method commenced before the accident involving Mr Fitzpatrick. [cross-examination by counsel for V & D Ridolfo at AB 238]

(k) On some of the machines which Jobs Engineering built before they supplied the machine to V & D Ridolfo, Mr Job had installed a single strand of chain across the open cabin between the cabin and the splitter box, for the purpose of creating a form of barrier. [cross-examination by counsel for V & D Ridolfo at AB 239]

(l) If Mr Job had been aware of Australian Standard 4024.1, when he was manufacturing the machine for V & D Ridolfo, he would have realised that a barrier guard should have been installed between the operator and the splitter box, and there was "a very good chance" he would have installed such a barrier. [cross-examination by counsel for GIO at AB 246 - 247]

(m) Mr Job did not have any drawings, specifications or written instructions in relation to the installation of a barrier guard between the cabin and the splitter box. [cross-examination by counsel for GIO at AB 249]

(n) A barrier guard should have been installed by V & D Ridolfo when the cabin was built. [cross-examination by counsel for GIO at AB 252]

(o) Mr Job ceased installing the single strand of chain because he did not "deem it necessary". [cross-examination by counsel for Mr Fitzpatrick at AB 278]

(p) The construction of a fully-enclosed cabin prevented access from the cabin to the splitter box. [cross-examination by counsel for Mr Fitzpatrick at AB 278]

[286]

212 I consider that the obviousness of the danger posed by the splitter box would not have justified Jobs Engineering supplying the machine without installing a fixed barrier guard between the cabin and the splitter box. Several facts and matters, in combination, would have induced a reasonably competent engineer, in the position of Jobs Engineering, to have installed a fixed barrier guard, even though the danger was clearly perceptible and the controls enabled the operator to place the splitter box mechanism in neutral and lock it, when appropriate. First, there are the facts and matters to which I have referred at [207] above, in the context of explaining why an injury of the kind suffered by Mr Fitzpatrick, and the general manner in which it might occur, were reasonably foreseeable. Secondly, although the degree of probability of the occurrence of an injury of the kind suffered by Mr Fitzpatrick, and the degree of probability of the general manner of its occurrence, were low, the magnitude of the risk was significant, and a serious injury was likely to be suffered if the risk eventuated. Thirdly, the installation of a fixed barrier guard would not have been expensive, difficult or inconvenient. At the material time the purchase price of the machine was about $60,000 and the cost of designing, fabricating and fitting the cabin was about $2000. After the accident, Mr Fitzpatrick installed a barrier guard on the machine in question, apparently without difficulty. The cost would have been modest. Mr Job said, in cross-examination (at AB 246 - 247) that if he had been aware of Australian Standard 4024.1, when he was manufacturing the machine for V & D Ridolfo, he would have realised that a barrier guard should have been installed and there was "a very good chance" he would have installed such a barrier. Later, in cross-examination, Mr Job said (at AB 252) that a barrier guard should have been installed by V & D Ridolfo when the cabin was built. Fourthly, the installation of a fixed barrier guard would have been practical in the sense that its existence would not have materially affected the efficient operation of the machine. An operator would have been able to re-position, with a metal rod, log rings which became jammed in the splitter box, without leaving the cabin. If it became necessary to alight from the cabin to attend to the splitter box mechanism, the operator would have been able to place the operating lever in neutral (and lock it in position), leave the cabin from the side opposite the splitter box and walk behind the machine to the box.

[290]

"Although [V & D Ridolfo] had the benefit of having seen similar cabins and had taken photographs that it provided to Mr Giancola [of G & G Welding] I am satisfied that in the design and construction of the cabin [V & D Ridolfo] was acting quite independently. What discussion did take place between Mr Job and Mr Ridolfo about the cabin was cursory and there was no discussion about dimensions or style. Mr Job recalls having overheard comments about using perspex which he said he did not advise. There were no specifications or templates or details about the configuration of the cabins on the machines in Tasmania. The photographs would be unlikely to do anything other than give a 'rough guide' as to how the cabins appeared on the machines in Tasmania. I am satisfied on the basis of the evidence of Mr Ridolfo and Mr Giancola that they brought independent views to bear on the design and requirements for the cabin to be constructed. This is confirmed by the distinct design employed in the cabin. The photographs of the cabins in Tasmania show a square and rather more rudimentary shape than the cabin constructed on this machine. More windows were utilised to give the operator a wider view. A perspex was used in the windows rather than glass and steel mesh was added around the windows to offer further protection to the operator from the operation of the chainsaw. The metal guard on the floor of the cabin was raised to a height of approximately 200 [sic] millimetres. A metal bar was designed to go across the opening to the splitter box with metal brackets built into the side to hold the metal bar. Mr Ridolfo contacted [WorkSafe] in relation to a need for rollover protection on the roof of the cabin if it was going to be used on bush sites. It is also significant that these machines are manufactured and produced by [Jobs Engineering] not for retail sale to the general public but for firewood operators and people working in that industry and the machines are custom made to the order of individual purchases [sic]."

[301]

"Leaving aside cases involving some positive act and those in which an omission can be treated as a positive act, a case based on omission or a failure to act will, in certain respects, fall for analysis in a way that differs from that appropriate for a case based on a positive act. Thus, in the case of a positive act, questions of causation are answered by reference to what, in fact, happened. In the case of an omission, they are answered by reference to what would or would not have happened had the act occurred (See, eg, Duyvelshaff v Cathcart & Ritchie Ltd; Quigley v The Commonwealth (1981), 55 ALJR 579; 35 ALR 537. See also Hart and Honoré, Causation in the Law, 2nd ed (1985), pp 59-61 where the authors identify the hypothetical nature of an inquiry as to the causal significance of providing or failing to provide a person with, or depriving a person of, an opportunity). In that exercise, the larger philosophical questions are brushed aside and the issue is approached on the basis that 'when there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm' (Sutherland Shire Council v Heyman [1985] HCA 41; (1985), 157 CLR 424, at p 467, per Mason J. See also Hart and Honoré, op cit, p 38).

In practice, it is not always necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a 'breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty' (Betts v Whittingslowe [1945] HCA 31; (1945), 71 CLR 637, at p 649, per Dixon J).

And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, (see, eg, Duyvelshaff v Cathcart & Ritchie Ltd and Quigley v The Commonwealth, where there was an onus on a plaintiff employee to establish what he would have done if different working conditions had been provided), generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect (McGhee v National Coal Board, [1972] UKHL 7; [1973] 1 WLR 1, at pp 6-7; [1972] UKHL 7; [1972] 3 All ER 1008, at pp 1012-1013, per Lord Wilberforce, where it was said that in the circumstances of that case the defendant bore an onus to that effect. But cf Wilsher v Essex AHA, [1987] UKHL 11; [1988] AC 1074, at pp 1087, 1090, per Lord Bridge of Harwich, where the issue of causation in that case and the remarks of Lord Wilberforce in McGhee were analyzed in terms consistent with an inference arising from the evidence in the plaintiff's case in chief with a resultant evidentiary onus on the defendant. Also note the debate in Canada on a possible shift in the onus of proof, seemingly resolved in the manner indicated by Lord Bridge in Wilsher by the Canadian Supreme Court in Snell v Farrell, [1990] 2 SCR, at pp 329-330; (1990) 72 DLR (4th) 289, at p 301), or that the injury would have occurred even if the duty had been performed (see Barnett v Chelsea and Kensington Hospital Management Committee, [1969] 1 QB 428 and British Road Services Ltd v AV Crutchley & Co Ltd, [1967] 2 All ER 785), it will be taken that the breach of the common law duty caused or materially contributed to the injury. However, the question whether some supervening event broke a chain of causation which began with or which relates back to an omission or a failure to perform a positive duty, is one that can only be answered by having regard to what would or would not have happened if the duty had been performed. It is only by undertaking that exercise that it is possible to say whether the breach was 'still operating' (see SS Singleton Abbey v SS Paludina, , at p 27, per Lord Sumner), or, continued to be causally significant when the harm was suffered."

[388]

262 In GIO General Ltd v Newcastle City Council (1996) 38 NSWLR 558, the appellant agreed to indemnify the respondent under an insurance policy against legal liability in respect of public liability, products liability and professional liability. By an endorsement, the policy was amended so that all claims relating to "the rendering or failure to render professional advice or service by the Insured or any error or omission connected therewith" could only be brought under a clause of the policy which related to "Professional Liability" as distinct from other clauses concerned with "Public Liability" and "Products Liability". The appellant refused to indemnify the respondent in respect of several claims which alleged that the claimants had suffered loss and damage in consequence of the respondent's negligent issue of a "Certificate of Structural Soundness" in respect of premises which were subsequently damaged in an earthquake. The appellant contended that the activities of the respondent, which gave rise to the claims, could not properly be characterised as "the rendering or failure to render professional advice". In the Court of Appeal of New South Wales, Kirby P (with whom Sheller and Powell JJA agreed) held that the relevant activities of the respondent must be examined to determine whether, in their nature, they are properly characterised as "professional". The source of the respondent's duties to perform the activities in question was a relevant, but not definitive, circumstance. Kirby P noted, at 568, that the term "professional", in a professional indemnity insurance policy, is very broad. His Honour concluded that, in the context of such a policy written for a local government authority, "professional" involves no more than advice and services of a skilful character according to an established discipline. The claims made against the respondent arose out of such activities and were therefore within the endorsement to the policy, and the clause which related to "Professional Liability". The judgment of the Court of Appeal was reversed in the High Court (Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85) on the basis of the proper construction of s 40 of the Insurance Contracts Act 1984 (Cth), but not on the point I have been discussing.

At a glance

Court

Decision date

Before

Source

Judgment (417 paragraphs)

Manufacture of the machine and purchase by Ridolfo

Jobs Engineering demonstrates the use of the machine

Construction of the cabin and use of the machine by Ridolfo

Demonstrations by Mr Harvey and Mr Fitzpatrick's awareness of the risk of injury from the splitter box

Mr Fitzpatrick installs a barrier in the cabin after the accident

Duty of care and breaches of duty alleged at trial and on appeal - Jobs Engineering

Jobs Engineering - The appellant's case at trial and final form of the grounds of appeal

The evidence and findings concerning responsibility for the design and manufacture of the cabin

Ridolfo - The pleaded allegations and the issue on appeal concerning duty and standard of care and breach of duty - Grounds 2 and 3

Ridolfo under no duty to warn of the risk of injury from the splitter box

Did Ridolfo, as part of its duty, have to install a barrier and emergency switch before supplying the machine to Mr Fitzpatrick?

GIO's application for leave to amend its grounds of appeal

(b) Grounds relating to the design exclusion clause

Mr Fitzpatrick's application to amend at the hearing on 23 and 24 August 2006

Mr Fitzpatrick's appeal against Jobs Engineering: grounds of appeal

Mr Fitzpatrick's appeal against Jobs Engineering: the statement of claim and the case which was litigated at the trial

Mr Fitzpatrick's appeal against Jobs Engineering: duty of care and standard of care

Mr Fitzpatrick's appeal against Jobs Engineering: grounds 1 and 3 and the issue of causation generally

Mr Fitzpatrick's appeal against Jobs Engineering: grounds 1 and 3 and causation in relation to V & D Ridolfo

Mr Fitzpatrick's appeal against Jobs Engineering: grounds 1 and 3 and causation in relation to Mr Fitzpatrick

Mr Fitzpatrick's appeal against Jobs Engineering: conclusion

Apportionment as between Jobs Engineering and V & D Ridolfo

GIO's appeal against Jobs Engineering: grounds of appeal

GIO's appeal against Jobs Engineering: the provisions of the insurance policy

GIO's appeal against Jobs Engineering: proposed ground 6 and exclusion clause 10(a)

GIO's appeal against Jobs Engineering: proposed ground 2 and the exclusion clause relating to "defective design"

GIO's appeal against Jobs Engineering: grounds 3 - 9 (as re-numbered by Pullin JA)

GIO's appeal against Jobs Engineering: ground 10 (as re-numbered by Pullin JA

GIO's appeal against Jobs Engineering: conclusion

Legislation Cited (2)

Cases Cited (43)