Hanlon v Hanlon Enterprises Pty Limited & anor - [2004] NSWSC 930 - NSWSC 2004 case summary — Zoe

NSWNSWSC

Hanlon v Hanlon Enterprises Pty Limited & anor

[2004] NSWSC 930

Supreme Court of NSW|2004-10-08|Before: Hislop J, Mr P

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2004-10-08

Before

Hislop J, Mr P

Source

Original judgment source is linked above.

Judgment (66 paragraphs)

[1]

Introduction 1 The first defendant carried on business as a buyer and seller of grain at premises at Queen Street, Junee. The grain was stored by it at the premises. The premises consisted, relevantly, of offices, a weighbridge and a number of silos on one side of the street and a grain storage shed on the other. The first defendant also conducted a fertiliser business from those premises. 2 The plaintiff was employed by the first defendant to work as a hopper attendant at the premises. 3 The second defendant carried on business as a supplier and installer of storage sheds and associated equipment. 4 The second defendant contracted with the first defendant to supply and erect the grain storage shed and plant and equipment therein including augers. The contract provided that the first defendant was separately responsible for the provision of power, control switches and wiring to the shed.

[2]

5 On 1 December 1997, whilst the plaintiff was in the course of that employment, his left hand was traumatically amputated when it came into contact with a revolving grain auger which had been installed in the storage shed by the second defendant pursuant to the aforesaid contract. 6 The plaintiff has claimed damages for this injury from the first defendant as his employer and from the second defendant as the party responsible for the design, manufacture, supply and installation of the storage shed and auger. The defendants have cross-claimed against each other seeking damages, indemnity or contribution in respect of their liability, if any, to the plaintiff. The storage shed and its operation 7 The storage shed was large and partitioned into two storage areas ("bin one" and "bin two") by a dividing wall running across the width of the shed midway along its length. The grain stored in bin one was of a different type to that stored in bin two. 8 The grain to be stored in the storage shed was delivered to the premises by trucks. It was discharged from the trucks through a ground-level grate into a pit. It was conveyed by an auger (a screw conveyor located inside a metal tube) from the pit to ground level in front of the shed where it was passed to another auger inclined across the exterior face of the front wall of the shed ("the incline auger"). The incline auger carried the grain from there to near the apex of the shed roof, where it passed onto the first of two horizontal augers ("the roof augers") which ran end to end along the length of the shed. The first roof auger was located above bin one; the second above bin two. 9 There were a number of discharge chutes located on the underside of the roof augers approximately 3-metres apart. The chutes were 70mm long. A sliding guide was formed along the two longer sides of the bottom edge of each chute, and between those guides was located a flat steel plate (the "draw plate"), enabling the chute to be opened or closed as required. 10 Access to the roof augers was by an external stairway, consisting of forty stairs inclined across the external face of the front wall of the shed. The stairway ran from ground level to an access platform from which entry was gained through a door to the interior of the shed. Access to the roof augers was from an elevated catwalk which ran the length of the shed from that doorway. There was a switch at the top of the stairway which, if operated, would turn off the first roof auger and a similar switch in respect of the second roof auger at the other end of the catwalk. 11 The augers were operated from a control panel in the vicinity of the pit. The panel contained a horizontal row of four push button assemblies. Each button related to a separate auger, which was identified by a caption above it on the panel. The lower section of the button was coloured green and was used for switching the auger on, the upper section was coloured red and was used for switching the auger off. There were no lights on the panel to indicate the button had been sufficiently depressed to commence the desired operation. The augers were switched off in sequence, pit, incline, roof, to avoid grain jamming the augers. 12 The augers were noisy in operation. Mr Peter Hanlon gave evidence that the noise of the roof auger was very distinct to a person standing on the ground at the front of the shed. It would have been greater to a person at the entrance to the shed as the auger's motor was located just outside the entrance. Mr Peter Hanlon also gave evidence that once inside the shed, it was obvious the auger was still in rotation until the auger came to a complete stop. I accept the evidence of Mr Peter Hanlon in this regard. It is confirmed by the evidence of other witnesses, including Professor Frost and Mr Turner. The plaintiff himself conceded it would be very hard not to hear the motor running as he approached the top of the stairs, or to hear the auger winding down. 13 Once the auger was turned off at the control panel there was a period whilst the auger ran down and the last of the grain was deposited in the bin. The auger continued to be noisy during this period though its sound, to the experienced, was somewhat different to when it was running under a full load. 14 There was some debate in the evidence as to how long the auger took to run down and stop and whether there was sufficient time for a person to run from the control panel up the stairs to the access platform before the auger had stopped. Mr Peter Hanlon and Mr Turner both said there was not. I accept that evidence.

[3]

15 The type of grain delivered could vary from truck to truck. Accordingly, the grain was sampled on arrival at the premises to ascertain its type. This determined whether, if it was to be stored in the shed (there were other storage facilities on the premises), it should be stored in bin one or bin two. 16 In the event the preceding load stored in the shed was of a different type to that next to be stored, it was necessary for the operator to turn off the augers, proceed up the stairs, enter the shed from the access platform and, from the walkway, open or close the appropriate chutes of the roof augers as required to enable the grain to flow into the correct bin. The plaintiff's employment 17 The plaintiff was 16 years of age at the time of injury. He had just completed year 10 at Junee High School, and had commenced casual summer employment with the first defendant on 24 November 1997. He had not worked there previously. He was to work during the harvest period which extended to about mid January. He was assigned to the job of operating the storage shed. He received instructions as to the work required of him from Mr Turner, an employee of the first defendant. He had engaged in that work for between four and seven days. There was a conflict in the evidence as to the precise number of days he had spent performing that work prior to the accident but it is unnecessary to determine this as, on any view, the plaintiff was an inexperienced worker. 18 Mr Turner instructed the plaintiff never to enter the shed whilst the roof augers were operating. He explained to the plaintiff how the augers were to be operated from the control panel. He showed the plaintiff how to open the chutes. The plaintiff gave evidence he was not told of the switch at the top of the stairs. Mr Turner could not remember whether he had instructed the plaintiff in this regard or not. The plaintiff also stated that he had not encountered a draw plate which would not slide freely prior to the time he sustained injury. I accept this evidence.

[4]

The circumstances of the plaintiff's injury 19 On the morning of 1 December 1997, the plaintiff was engaged in the process of unloading grain from trucks for storage in the storage shed. He was the only employee of the first defendant at the storage shed at the relevant time. The type of grain from the truck which he had just unloaded differed from that of the truck he was about to unload. It was thus necessary for him to open the chutes to the bin to be used and depending on whether the prior delivery had gone into bin one to close the chutes on that bin. The facility had commenced operation at about 7am and a number of trucks had arrived to unload grain by about 8am when the accident occurred. 20 The plaintiff gave evidence he switched off all the augers in sequence and proceeded up the stairs and onto the catwalk. The plaintiff was mistaken in his belief that he had switched off all the augers. Mr Peter Hanlon gave evidence, which was not disputed by counsel for the plaintiff, that he turned the first roof auger off following the accident. It was the only auger running at that time. It was not submitted the first roof auger had continued to run due to any electrical fault in the switching mechanism or that it had been turned on after the plaintiff had purportedly turned it off. I find that the plaintiff had attempted to turn off the first roof auger before proceeding up the external stairway, but such attempt had been ineffective. 21 The plaintiff gave evidence he went to close the second chute from the door on the first roof auger, but the drawplate would not slide freely due to an accumulation of wheat dust in the slide. In attempting to free it, his left hand came off the draw plate and into contact with the auger. Subsequent to his injury, his hand was recovered from under the second chute of the first auger. There was some debate as to whether the plaintiff had been opening or closing the first rather than the second chute. However, I accept the submissions that nothing turns upon the determination of that question and it is unnecessary for me to determine the issue. 22 I find that the plaintiff's injury was sustained when his left upper limb came into contact with the screw of the first roof auger whilst he was endeavouring to open or close a chute on that auger, the drawplate of which did not slide freely on that occasion.

[5]

The liability of the first defendant to the plaintiff 23 The plaintiff alleged in his Amended Statement of Claim that his injury was caused by the negligence and breaches of statutory duty of the first defendant. 24 The first defendant expressly made no submissions in opposition to the plaintiff's liability claim and indeed argued in support of its cross-claim that there had been a breach of s 27 of the Factories, Shops and Industries Act 1962 ("FSIA") by it. However, as the first defendant did not in terms admit liability to the plaintiff, and there are issues of contributory negligence and on the cross claims, it is necessary to determine the question of the first defendant's liability to the plaintiff. 25 The first defendant, as employer, had an obligation to take reasonable steps not merely to provide a safe system of work for the plaintiff, but to maintain and enforce such a system. It also owed a duty to take reasonable care to provide safe plant and equipment and to instruct the plaintiff in its safe use. The standard of care expected requires an employer to take account of the possibility of inadvertent and negligent conduct on the part its employees (McLean v Tedman (1984) 155 CLR 306 at 313). 26 No danger was posed by the auger when the draw plates were covering the chutes as they completely prevented access to the screw. No danger was posed by the auger when a chute was depositing grain as the volume and velocity of the delivery of the grain prevented access to the screw. It was only in circumstances where the auger was operating empty and a draw plate was open that any risk arose. The plaintiff was instructed, and understood, that he should not enter the shed when the auger was operating and that when it was necessary to open or close the chute the auger was to be turned off at the control panel. As I have found it was not possible for a person to turn off the auger at the control panel and reach the access platform before the roof auger had come to a complete stop, the system of work, so far as the plaintiff was concerned, was appropriate and, but for one matter, safe. 27 The deficiency in the system was that the control panel did not indicate that the stop signal had registered and the auger would come to a stop. Thus it was possible, as here, for the operator to believe he had effectively operated the stop switch when he had not, and to proceed up the stairs in the belief that the roof auger was winding down. 28 Thus, if the switch had not been effectively operated, the operator, on reaching the access platform would find the roof auger still running. In the ordinary course the switch located at the access platform could then be operated, the auger would come to a stop and the opening and closing of the chutes could then be performed safely. However in the plaintiff's case he had not been instructed as to the presence of the switch at the access platform. 29 There was expert evidence, which I accept, that low cost measures could have been taken to provide a visual indicator that the switch had been effectively operated. The plaintiff submitted such measures should have been taken, and if that had occurred, he would not have sustained injury; and the first defendant's failure to take those measures was the result of negligence on its part. 30 The plaintiff also submitted the first defendant was negligent in that:

[17]

41 The defendants rely primarily upon those concessions to establish contributory negligence on the part of the plaintiff. It was not submitted by the defendants that the plaintiff was guilty of contributory negligence in failing to ensure the button on the control panel had been sufficiently depressed to turn off the first roof auger. However it was submitted the noise from the operation of the first roof auger was such that the plaintiff must have heard it and chosen to proceed to open or close the chute regardless. 42 The plaintiff said that when he reached the top of the stairs he noticed nothing about the augers and he was not conscious the roof auger was still running when he went through the door. He cannot remember if it was making a noise. He conceded his recollection about a lot of things on the day of injury was not clear. He also said he had not been inside the shed when the augers were running on any previous occasion. 43 The issue of contributory negligence is to be approached on the footing the defendant (or defendants, if both were at fault) failed to discharge its obligations to take reasonable precautions against any risk of injury arising from its fault, and the plaintiff failed to observe and avoid any risk so created. The initial question is whether the plaintiff's failure amounts to negligence, or should be categorised as mere inattention, inadvertence, thoughtlessness or the like, there being a well recognised distinction between the two (McLean v Tedman (1984) 155 CLR 206 at 351). 44 The second defendant has asserted the apportionment for contributory negligence should be 50%. The first defendant characterised the plaintiff's contributory negligence as "significant" but declined to specify a percentage. 45 It was submitted for the plaintiff that this was a case where the plaintiff's failure should be categorised as mere inattention, inadvertence, thoughtlessness or the like, and not as contributory negligence. 46 The issue is essentially one of fact. The circumstances and conditions in which the employee has to do his or her work must be taken into account, and the mere fact the employee has knowledge of the danger is not conclusive (Ghunaim v Bart [2004] NSWCA 28). 47 Although the plaintiff gave evidence he had no recollection of the roof auger operating it cannot be doubted that it must have been clearly audible to him even if there was some noise from trucks idling below. It seems to me there are really two possible scenarios: either the fact the auger was operating did not register with him because he was intent upon getting the job done, and his mind was on what was to be done and he believed the auger had been turned off, or alternatively he was aware the auger was still running, though he probably thought it was in a run down phase and entered the shed expecting it to stop but when it did not stop he determined to complete his work in the shed rather than return to the ground to turn off the auger.

[18]

48 If the first scenario is what occurred then I would categorise the plaintiff's failure as a case of mere inattention or thoughtlessness rather than contributory negligence. If the latter is the correct scenario then it would be properly categorised as contributory negligence. The onus is upon the defendants to establish the plaintiff's failure to avoid injury amounted to contributory negligence. 49 In my opinion the noise of the roof auger was such that the plaintiff must have heard it and realised the auger was still operating. He must have continued to hear the auger operating when he entered the shed and when he was about to adjust the draw plate. In my opinion the proper inference is that the plaintiff was aware the first roof auger had not turned off but decided that rather than return to the ground to turn it off he would proceed to adjust the draw plates as required. Accordingly some apportionment for contributory negligence must be made. 50 The degree of fault attributable to the first defendant far exceeds that of the plaintiff in that the risk situation arose because of the deficiencies in the control panel, the failure to inform the plaintiff of the switch near the door and the absence of an interlock to prevent him entering the shed whilst the auger was running and the absence of a guard over the chute. 51 By contrast the plaintiff was young and inexperienced. He had not encountered difficulty in sliding a draw plate before and the risk of his hands slipping into the auger would at the time have seemed most unlikely. Once he had embarked upon endeavouring to open or close the draw plate and encountered resistance it would have been natural for him to continue with the process without thought of any risk involved. The plaintiff was a conscientious young man. His options were to return to the ground and attempt for a second time to turn off the auger or to proceed notwithstanding the auger was still running. The third option that he should simply turn off the auger at the switch at that level was not known to him. The harvest season was a particularly busy time and the trucks awaiting unloading were beginning to bank up. His action in getting on with the job was an action taken for the benefit of the first defendant. I assess the plaintiff's contributory negligence at 10%.

[23]

56 The only evidence given as to the contract was that of Mr Peter Hanlon. Mr Cleverdon, the principal of the second defendant, and the person with whom Mr Peter Hanlon had dealt, was not called to give evidence, though he was present in Court. 57 Mr Peter Hanlon was a fitter and turner by trade. He and his wife were the sole directors of the first defendant. I accept his evidence that he had been around augers for most of his life and was familiar with them, and he was aware the chutes were not to be guarded; he entered into the contract on behalf of the first defendant with the second defendant after viewing a similar grain storage shed erected by the second defendant; there was no discussion about the augers; he did not discuss any requirement that the auger chutes be guarded; he well understood upon receipt of the quote what the second defendant was to provide; he did not at any time complain about any aspect of the installation and accepted "most definitely" that what the second defendant had built accorded entirely with what he understood the second defendant had contracted to do. 58 Professor Frost suggested that to install the alterations designed by him could cost about $16,000. 59 Mr Peter Hanlon impressed as a man of strong views who was cost conscious. He opted for the shed as it was more economical than a silo. His only complaint about the second defendant was that its price was too dear. I have no doubt Mr Peter Hanlon was a man who would make his own decisions as to all matters. 60 Subsequent to the plaintiff's injury the first defendant received a notice from WorkCover which read, "You shall ensure the safety of persons operating the auger inside the grain shed by securely fencing all dangerous parts or by other means, in particular access to rotating screw." Mr Peter Hanlon gave evidence that the auger was not in an unguarded state and that to operate the shed properly, one had to have access to go in when the auger was running. He did not concede that there was an unguarded auger within the grain shed and was offended by that suggestion. He said, "they were suggesting that the auger was in an unguarded state and I strongly protested that. I said that auger is not in an unguarded state and I still don't believe it is". 61 Notwithstanding the injury to the plaintiff, the first defendant has taken no steps to place any guard on the chutes, nor has it apparently taken any expert advice in the matter notwithstanding that an expert was retained on its behalf in the proceedings.

[31]

67 It is settled law that in order for terms to be implied into a contract as a matter of fact the following preconditions must be established: …(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract - BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 16 ALR 363 at 376, Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347, Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 605-6. 68 I find that it was not necessary to give business efficacy to the contract to imply the alleged terms. Nor could it be said that the alleged terms were so obvious that they went without saying. As Mr Peter Hanlon stated, he knew what the second defendant was to provide and what the second defendant built accorded entirely with what the second defendant had contracted to do. 69 It was further submitted that the aforementioned terms should be implied as a matter of law into contracts of this type and thus in the contract between the defendants. 70 I do not accept that submission. The ordinary building contract contains an implied term that the work will be done in accordance with the contractual stipulation, with proper materials, in a workmanlike manner and that the building will be reasonably fit for its purpose. Similarly in respect of the provision of goods there is an implied term that the goods will be reasonably fit for the purpose made known, provided there was reliance upon the vendor. I have found such reliance was absent. The work was done in accordance with the contract stipulations as was acknowledged by Mr Peter Hanlon. The equipment provided was reasonably fit for the contractual purpose. There was no reliance upon the second defendant to provide guards for the auger chutes or to redesign the draw plate or to advise in that regard and no obligation upon it to do so. 71 There was no breach of contract by the second defendant in not providing guards for the auger chutes or in relation to the design of the draw plate nor in failing to advise the first defendant in relation thereto. In any event as I have found the first defendant would not have heeded advice that the chute be guarded or the draw plate redesigned any breach would not have been causative of the first defendant's loss.

[32]

Second defendant's liability to first defendant in tort 72 The first defendant has also sought to recover damages for breach by the second defendant of a duty of care alleged to be owed by it directly to the first defendant. 73 The first defendant has relied, in support of this submission, primarily upon the decision of the Queensland Full Court in Suosaari v Steinhardt [1989] 2 Qd R 477, where, in not dissimilar circumstances, an employer recovered damages from a manufacturer for the employer's liability to an employee for damages for injury occasioned to the employee whilst using the manufacturers defective product. 74 The Court in Suosaari categorised the claim by the employer as a claim for pure economic loss. The first defendant accepted this categorisation in its submissions. The High Court has since determined Woolcock Street Investments Pty Limited v CDG Pty Limited (2004) 78 ALJR 628. In that case the High Court found a duty of care was not owed by a builder to the original or subsequent owner of commercial premises in the absence of vulnerability on the part of the first owner and/or known reliance by the owner upon the builder. 75 The High Court held that "vulnerability", in this context, is not to be understood as meaning only that the plaintiff was likely to suffer damage if reasonable care was not taken. Rather, "vulnerability" is to be understood as a reference to the plaintiff's inability to protect itself from the consequences of a defendant's want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant. There was no vulnerability in this case as the first defendant could have protected itself by appropriate contractual terms or by installing an electrical interlock. There was no identified element of known reliance or dependence on the part of the first defendant upon the second defendant. 76 Additionally the performance of a duty to provide guarding on the chutes or to redesign the draw plates would have required the second defendant to do more and different work than the contract with the first defendant required or permitted (see Woolcock at [28]) in circumstances where I find the first defendant would not have required the work be done and would not have been prepared to meet the additional cost thereof. 77 In my opinion no duty of care was owed by the second defendant to the first defendant and even if it had been, any breach of that duty would not have been causative of the first defendant's loss.

[33]

Second defendant's liability to the plaintiff 78 The terms of the second defendant's contract with the first defendant cannot operate to discharge the second defendant from a duty of care to persons who are strangers to those contracts, nor can they directly determine what it must do to satisfy its duty to such persons. That duty is cast upon it by the law, not because it made a contract, but because it entered upon the work (Voli v Inglewood Shire Council (1962 - 1963) 110 CLR 74 at 85). 79 However the contract is not an irrelevant circumstance as it determines the task upon which the second defendant entered (Voli at 85). 80 The second defendant knew the purpose for which the shed was being built. The second defendant's duty of care extended to persons who came there to use it in the ordinary way (Voli at 85). 81 It was not established that the second defendant was aware that employees of the first defendant were required to work in the shed when the auger was operating. Indeed, on the evidence, it was probable that this state of affairs first arose in 1997 after Mr Peter Hanlon started to use a spreader which he himself had fabricated. The second defendant was entitled, on the evidence, to believe persons did not, in the ordinary course of operations, enter the shed whilst the augers were in operation. 82 No danger was created by the roof auger when being used in the ordinary way. It was only in the situation where a chute was open and the auger was not discharging grain that injurious contact could occur and then only if, contrary to normal practice the auger had not first been turned off, and unlikely events then occurred to bring a person into contact with the auger screw. It was not established the second defendant was aware of any problem with the control panel though this circumstance was a matter within the knowledge of the first defendant. The injury here was not reasonably foreseeable to the second defendant save in hindsight nor was the plaintiff using the augers in the ordinary way when injured. I am not satisfied the design of the draw plate was a foreseeable cause of injury or that its suggested redesign would have avoided the injury that occurred.

[35]

84 There was no evidence that the design of augers generally provided for guards on the chutes, such evidence as there was, was to the contrary and the onus of proof was upon the plaintiff. It was not established that if the second defendant had consulted a reasonably competent engineer in the industry, it would have been advised that a practical guard could be designed and fitted. 85 It is true Professor Frost, when asked to focus after the event upon the possibility of designing a guard came up with a design which was theoretically workable. However neither he nor Dr Shafaghi, who also gave evidence, would have been consulted by the second defendant in the ordinary course of events, as neither had any experience or were active in the field of designing augers or agricultural equipment generally. There was no evidence the suggestions put forward by Professors Frost and Shafaghi had been adopted anywhere in Australia nor were they depicted in any Australian Standard. 86 The second defendant, in supplying and erecting the shed and its equipment, was performing a contract with the first defendant and was bound by the terms of that contract. It was not a case of the second defendant being a manufacturer who was supplying items to consumers generally and who was free to design the equipment as it pleased. The second defendant was not entitled under the contract to add guards to the auger chutes or to change the design of the draw plate without first obtaining the agreement of the first defendant. I have concluded the first defendant would not have agreed to those changes particularly as they would have involved extra cost to it. 87 The first defendant had reserved to itself the obligation to provide electrical controls (and it installed an electrical interlock subsequent to the plaintiff's accident) and had the responsibility, as employer, to set up and enforce a safe system of work. The risk of injury was remote and non-existent if entry to the shed was not permitted whilst the roof augers were in operation. It was not established the second defendant was aware persons were permitted to enter the shed whilst the roof augers were in operation, or that the control panel may not operate effectively. In the circumstances the action of the second defendant in supplying that which the contract required was not such as to give rise to tortious liability on its part. 88 The plaintiff's claim against the second defendant fails as do the cross claims by the defendants against each other. Damages - factual background

[37]

93 Subsequently the plaintiff was fitted with a manual prosthesis to the use of which he quickly adapted. He later was fitted with a myoelectric prosthesis. Initially he had difficulty in making full use of that prosthesis and preferred the manual one. However, in recent times he has become more aware of the capabilities of the myoelectric arm and prefers it to the other. The prosthesis has a facility to enable tools and other appliances to be attached in place of the hand and is particularly helpful for doing mechanical work. 94 The plaintiff returned to school in 1998 and completed his Higher School Certificate though without obtaining sufficient marks to matriculate to university. He then commenced a four year TAFE course as a parts interpreter which course he completed in the early part of this year. Whilst completing that course he was employed by Detroit Diesel as a parts interpreter. The plaintiff's employment with Detroit Diesel has continued since completion of the TAFE course and he is now a permanent employee of that company. 95 The plaintiff's present employment largely involves computer work and whilst engaged in that aspect of the work he does not use the prosthesis. If heavy lifting is required he uses a forklift or obtains manual assistance. He can lift weights up to 20 kilograms using the prosthesis. 96 The plaintiff hopes to progress with Detroit Diesel, an international company with some thirteen branches in Australia. His TAFE certificate also qualifies him for work as a salesman, car and building assessor. The plaintiff does not rule out the possibility of obtaining employment in those areas at some later time or of progressing his career with employers other than Detroit Diesel. 97 The plaintiff drives a motor vehicle using a spinning knob. The plaintiff did not own a motor vehicle at the time of the accident and used his parents' automatic car, as he still does. He acquired a manual vehicle after the injury and used the prosthesis to change gears. There was evidence a doctor had certified him medically fit to drive with a recommended licence condition, "Automatic only, spinning knob to be fitted". There was evidence which suggested his licence was endorsed for automatic only, but the licence was not tendered and the plaintiff gave evidence that he was still licensed to drive a manual vehicle, though he was seeking to clarify the position with the Roads and Traffic Authority. He had no preference to drive a manual vehicle over an automatic. 98 The plaintiff played golf socially every couple of weekends prior to his injury. He has not played since. He proposes to resume playing some golf using an attachment to the myoelectric arm. He has a girlfriend and an active social life. His main pastime is the restoration of an EH Holden which he works on most weekday evenings. 99 The plaintiff's injuries and their effect upon him are not the subject of any serious contest in the medical material placed before me. The stump is well healed; there is normal sensation, no complaint of tenderness, and no evidence of neuroma. The plaintiff complained of phantom pain in the limb in the first stages after amputation for about six months, but since then he has not been troubled by pain save if the stump is bumped or jarred. He has full movement of both shoulders and elbows, requires no medications and there is no need for further surgical treatment. He has some pale scarring at the skin graft donor side on the left thigh and fine scars on the back of the feet from where vein grafts were harvested. 100 The plaintiff gave evidence he was not concerned about the cosmetic appearance of the left arm to a sufficient degree to want to wear the prosthesis to mask the absent hand and he walks about freely with the stump showing. The plaintiff does however complain that he feels awkward when meeting strangers for the first time, although once he gets comfortable with the person, his injury does not faze him at all. He notices people looking at him all the time, and feels embarrassed about that. He does not go out to restaurants much, as he doesn't like to cut up meals or things like that using the prosthesis or his rocker knife as that would draw attention to him. In fact he does not wear the prosthesis to restaurants, and when out orders something easy to cut. He is self-conscious when photographs are taken, and tends to stand in a position where the absence of the lower part of his arm is obscured. His parents gave evidence they considered the plaintiff was more self conscious than he admitted. The medical evidence indicates the plaintiff has made a good adjustment to his predicament and has a very positive attitude. 101 The plaintiff continues to live with his parents; he mows the lawn and keeps his part of the house tidy. The medical evidence is that he has demonstrated a capacity to carry out all ordinary handyman tasks and ordinary domestic duties. He does not attempt moving heavy furniture, nor using ladders to get onto the roof, though he has used ladders for some purposes. He needs help to tie his shoelaces or a tie and has some difficulty hanging out clothes on the washing line, ironing or making his bed. His mother cooks, does the washing and ironing for him and general housework, just as she did prior to his injury. Immediately after the injury he required considerable additional assistance due to his injury and his mother drove him to medical appointments and the like. However he quickly became independent in his personal care prior to his return to school. 102 The plaintiff hopes to settle down and have a family at some time in the future. 103 Dr Jones, who has had the care of the plaintiff since shortly after the injury, gave evidence as to the possible effect of overuse of the un-injured right arm. She referred to a journal article in this regard, however the study on which the article was based was one of persons using body powered prostheses. The doctor stated the risk was probably still 50% but acknowledged she had no statistics in relation to myoelectric prosthesis users. Whilst there is a risk the plaintiff may suffer some effects of overuse of the right arm, it appears to me unlikely such will occur to any significant degree. 104 The plaintiff is an impressive, personable young man who has dealt courageously and positively with a severe injury and its sequelae. By reason of his injuries he is now best suited to clerical or sales type work.

[47]

Past out of pocket expenses 129 I allow the agreed sum of $181,580.78. Future out of pocket expenses 130 The relevant legal principles are (a): …a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries - Todorovic v Waller (1981) 150 CLR 402 at 412. And (b): …yet the sum to be awarded in compensation is not calculable by any mathematical process. At best, it is and must remain a matter of judgment. First, the range of the recurrent amount likely to be reasonably required must be considered. The question here is not what are the ideal requirements but what are the reasonable requirements of the respondent. The jury must be warned, in my opinion, against blindly accepting the views of medical practitioners. What is reasonably required is a matter for the jury - or for the judge if sitting alone - Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 661. 131 The plaintiff has claimed $18,669.23 for future general medical out of pocket expenses. The first defendant has conceded part of that claim but submits the plaintiff should not be allowed therein a claim for possible future psychiatric/psychological consultations of 10 visits at $185 per visit, and that a claim for annual orthopaedic review once per annum at $200 per visit should be reduced to once every four years and that a claim for review by a rehabilitation physician at $200 per annum should be reduced by 50%. I uphold the first defendant's objections as reasonable save for the allowance for psychiatric assistance. Whilst the plaintiff is a well adjusted young man there is the possibility that at some stage in his life the need may arise for psychiatric care or consultations consequent upon the sequelae of his injury. Such need is deferred and is no more than a possibility. I would allow $1,500 under this head. Accordingly I allow general medical out-of-pocket expenses at $13,572 comprising the first defendant's assessment plus $1,500.

[48]

132 There is also a claim for future non-prosthetic equipment of $2,264.24. However much of this equipment has been supplied though some may need replacement in the future. The first defendant concedes $1,796 in respect of this claim. This in my opinion is reasonable and I allow that sum. 133 However the major claim for future out of pocket expenses relates to the claim for prostheses and related devices. The plaintiff's needs in this area have been tended to by Mr Doller, who gave evidence in the case. Mr Doller has worked as a prosthetist since 1956 and impressed as a person of considerable experience and knowledge in this area. The plaintiff's out-of-pockets claim in large part is based upon his evidence and costings. 134 The plaintiff and first defendant have prepared a comparative schedule of prosthetic needs/costs. The total claim made by the plaintiff in his schedule amounts to $1,254,199 to which is to be added a one-off payment of $27,340 for a Hayden Preston tool set and two N-Abler devices. The first defendant's schedule allowed the plaintiff's claim at $408,175 together with a one-off payment of $11,340. 135 The first defendant has objected to some items on the basis Mr Doller's costings were higher than those of Mr Curby who was qualified for the defendant and whose report was tendered. Where the costings differ in this way or Mr Curby's prices included additional equipment I have preferred Mr Doller's costings. I have done so principally because, in my opinion, it is important the plaintiff have continuity of care from the prosthetist who has cared for him throughout and that he use the equipment which that person recommends. In my opinion it would not be reasonable to require the plaintiff to change prosthetists or to "shop around" for items elsewhere simply because from time to time a lower price may be available. The need for a number of items and their costs was accepted by the first defendant. The items which remained in issue are discussed hereunder. 136 Maintenance - The plaintiff claims 10 hours maintenance for each of two myoelectric prostheses (20 hours in total) and 5 hours for the body powered prosthesis. The first defendant accepted the claim as to one myoelectric prosthesis and the body powered prosthesis but not the claim for maintenance of a second myoelectric prosthesis. I consider it reasonable the plaintiff have one myoelectric prosthesis and a reserve or back up myoelectric prosthesis. The latter would be used when the other was out of commission. I consider the reserve myoelectric prosthesis would require some maintenance from time to time but considerably less than that claimed. I would allow 3 hours maintenance per annum in respect of the reserve prosthesis. I therefore reduce the plaintiff's claim to $2,430 per annum. 137 Charger - I allow one charger every two years consistent with one myoelectric prosthesis being allowed, the reserve myoelectric prosthesis being used only when the first myoelectric prosthesis is out of commission. I reduce the plaintiff's claim to $445.75. 138 Gloves - I reject this claim as I have allowed the plaintiff's claim for "living skin". 139 Harness - I allow two spare harnesses (one per year in addition to that supplied with the prosthesis). I reduce the plaintiff's claim to $130 per annum. 140 Cable - I allow two spare cables (one per year in addition to that supplied with the prosthesis). I reduce the plaintiff's claim to $314 per annum. 141 Golf grip - I allow a golf grip every four years rather than every two years as claimed by the plaintiff or every six years as submitted by the first defendant. I reduce the plaintiff's claim to $897 per annum. 142 Myoelectric prosthesis - The plaintiff claims replacement every two years. The defendant concedes replacement every four years. The evidence as to replacement varies, Dr Buckley suggests replacement every year, Dr Jones 18 months to two years, Mr Doller three years to five years, Mr Curby three years. I allow replacement each three years. I reduce the plaintiff's claim to $7015 per annum.

[50]

144 Living skin - The plaintiff makes a claim for "living skin". The first defendant submits the claim should be rejected. This is a difficult area. (a) The plaintiff has a passive hand which he can fit to the prosthesis if he wishes. There is a glove on the outside of the hand which is "mustard" coloured. Dr Jones described the passive hand as "A cosmetic hand which looks good and has no function". The gloves cost $279 each and 2 per year are required. (b) It is submitted the plaintiff needs a "living skin" glove to go over the passive hand. Such a glove would be an alternative to the type of glove which the plaintiff presently has, he would use one or the other. (c) The "living skin" glove is made of silicone. It is made so as to closely resemble the injured person's remaining hand in respect of colour, freckles, hair etc such that one would hardly know the difference from the other hand. (d) Dr Jones has not seen a living skin glove, though she has heard that they are "supposed to be great". (e) Mr Doller had seen living skin. He confirmed it "looked great" but he had never fitted it to a hand, though he had to legs. He did not know how long it would last, though the manufacturer estimated 1 to 2 years. The cost of living skin is $34,000 per glove. (f) The plaintiff agreed in evidence that the only time he would be using the anatomical hand with the living skin would be on the occasions when he actually used the hand for cosmetic purposes. At present such occasions are rare as he considered the cosmetic hand looked unrealistic to the extent he considered it drew more attention to him than not wearing a prosthesis at all. The plaintiff thought that he would probably wear the hand a lot more with living skin as it would look realistic and would not draw attention to him. (g) The defendant submitted the cost of providing living skin is so disproportionately high that the provision of it in place of the glove the plaintiff now has would be the provision of that which is ideal rather than that which is reasonable. There is force in this argument. However the plaintiff is a young man. His appearance is important to him. The appearance of the stump is not cosmetically pleasing and the gloved cosmetic hand does not look realistic. I accept the evidence of the plaintiff's parents, particularly his mother, that the plaintiff is embarrassed by the appearance of his left arm and that he has understated the extent of that embarrassment in his evidence. I accept that if the plaintiff had living skin he would wear the prosthetic hand more often and this would spare him considerable embarrassment, widen his areas of activity and promote his feelings of self-esteem. In my opinion the provision of living skin is a reasonable requirement. I allow the plaintiff's claim. 145 Steeper Greiffer - The first defendant submits the evidence did not establish a reasonable need for this item. However this greiffer permits of finer manipulative movement than a greiffer DMC. I consider the claim reasonable and allow it. 146 Four Otto Bock hand chasses - These facilitate the changeover of tools. I consider the claim for four rather than the two, which the first defendant would allow, is reasonable. 147 Thus the plaintiff's claim for prosthetic needs is allowed at $54,430.65 per annum which, when capitalised at 5% to his statistical date of death produces a figure of $1,042,974. To this must be added a one-off payment for two Hayden Preston N-Abler devices of $11,340. The plaintiff's claim for a one-off payment for the Hayden Preston tool set is rejected as that cost has already been met by the first defendant. I allow the claim for future prosthetic needs at $1,054,314 and the total claim for future out of pocket expenses at $1,069,682.

Parties

Applicant/Plaintiff:

Hanlon

Respondent/Defendant:

Hanlon Enterprises Pty Limited & anor

Cases Cited (15)

CITATION : Hanlon v Hanlon Enterprises Pty Limited & anor [2004] NSWSC 930 HEARING DATE(S) : 03/05/2004 - 07/05/2004, 10/05/2004 - 11/05/2004, 13/05/2004 - 14/05/2004. JUDGMENT DATE : 8 October 2004

CATCHWORDS : Employer's liability - Grain auger - Negligence - Breach of statutory duty - Liability of equipment installer - Contributory negligence - Damages. LEGISLATION CITED : Factories, Shops and Industries Act 1962 - s 27 Workers Compensation Act 1987 - s 151N Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Ghunaim v Bart [2004] NSWCA 28 McLean v Tedman (1984) 155 CLR 306 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Michael Realty Pty Limited v Carr (1975) 2 NSWLR 812 Proctor and Gamble Pty Limited v Australian Slatwall Industries Pty Limited [2001] NSWSC 398 CASES CITED : Southgate v Waterford (1990) 21 NSWLR 427 Sullivan v Gordon (1999) 47 NSWLR 319 Suosaari v Steinhardt [1989] 2 Qd R 477 Todorovic v Waller (1981) 150 CLR 402 at 412 Voli v Inglewood Shire Council (1962 - 1963) 110 CLR 74 Williams v Grain Handling Authority of NSW (NSWSC 21 October 1986 unreported) Woolcock Street Investments Pty Limited v CDG Pty Limited (2004) 78 ALJR 628 Daniel Michael Hanlon - Plaintiff PARTIES : Hanlon Enterprises Pty Limited - First Defendant JR Cleverdon Holdings Pty Limited - Second Defendant FILE NUMBER(S) : SC 20208/00 Mr P Blacket SC with Mr W Walsh - Plaintiff COUNSEL : Mr D Feller SC with Mr M Perry - First Defendant Mr M Williams SC with Mr R Cheney - Second Defendant Turner Freeman - Plaintiff SOLICITORS : Vardanega Roberts - First Defendant Riley Gray-Spencer - Second Defendant

(1968) 122 CLR 649

(1984) 155 CLR 306

(1995) 182 CLR 1

(1975) 2 NSWLR 812

(1990) 21 NSWLR 427

(1999) 47 NSWLR 319

(1981) 150 CLR 402

(2004) 78 ALJR 628

(1984) 155 CLR 206

(1977) 16 ALR 363

(1982) 149 CLR 337

(1979) 144 CLR 596

[2001] NSWSC 398

Cited By (1)

Wormleaton v Thomas & Coffey Limited