District Court of WA|2008-01-24|Before: Mr J

ROSS -v- PROFILE PACKAGING PTY LIMITED & ANOR [2008] WADC 8 (24 January 2008)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

CITATION : ROSS -v- PROFILE PACKAGING PTY LIMITED & ANOR [2008] WADC 8

Tort - Product liability - Defective machinery - Duty of care - Foreseeability of risk by manufacturer - Instructions on safe use of machinery by employer - Apportionment of liability - Contributory negligence - Assessment of damages

Judgment for the plaintiff in the amount of $695,373

1 SCHOOMBEE DCJ: Mr Michael Robert Ross, ("the plaintiff") suffered a severe injury to his right hand when it got caught between two moving platens of a thermo forming machine. The accident occurred on 12 June 2003 when the plaintiff was 23 years old. He was then employed by Profile Packaging Pty Limited ("the first defendant") as a machine operator and setter. The plaintiff had started working for the first defendant in 1996 and after about a year was trained on the operation of a thermo forming machine. These machines produce various shapes of plastic products like containers, lids and biscuit trays. The machines take sheets of plastic film from a roll at one end, heat a section of the plastic above a hot plate (the lower platen) and push this by means of air pressure into a die (a mould) attached to the upper platen where the plastic gets cooled and then cut into shape by knives surrounding the die. In the process the lower and upper platen close upon each other repeatedly and rapidly in order to push the plastic into the die and cut it.

2 Over the years the plaintiff had been trained to work on two or three of these machines; all of which had a similar method of operation. At the time of the accident the plaintiff's role was more supervisory and his duty was to assist other operators by obtaining the plastic material, setting up the temperature and heating times of the machines and assisting with jams in the machines which occurred regularly. It was also the plaintiff's duty from time to time to relieve other operators on the operation of their machines while they were at morning tea or at lunch break.

3 If a jam occurred inside the machines, the plaintiff had been instructed to open the Perspex windows surrounding the operating parts of the machine so that he could reach between the platens and remove the plastic material that had caused the jam. On all of the machines that the plaintiff had used there was a safety mechanism so that the operation of the machine was immediately interrupted once a Perspex window was opened.

4 The plaintiff gave evidence that he was not instructed to employ any other safety mechanism prior to putting his hands between the platens in order to remove a stuck piece of plastic. He said that Andrew Hewlett, the manager of the first defendant had told him that it was safe to put his hands between the platens as the safety mechanism engaged as soon as a Perspex window was opened. The plaintiff stated that an elongated piece of wood approximately 45 centimetres long, about 3 centimetres wide and 1.5 centimetres high was available on all of the machines that he had used. He was instructed to use this piece of wood if it was necessary to prevent the plastic sheeting sticking to the hot plate while clearing a jam. The plaintiff denied that he had been told to use this piece of wood or any other block of wood as an extra safety precaution to be placed between the two platens whenever he had to insert his hands in that gap either for purposes of removing a jam or for changing the die. The plaintiff said that it was his practice, whenever there was a jam, to rely on the operation of the safety mechanism which stopped the operation of the machine as soon as the Perspex windows were opened. According to the plaintiff it was not suitable to switch off the power to the machine, as it would then lose heat and take a while to start up again.

5 The machine on which the accident occurred ("the Machine") had arrived on the factory floor in early 2003. Its operation was essentially the same as the other machines on the factory floor, but it worked with electricity rather than pneumatic pressure. It was also more computerised and therefore required additional training for the operator. The plaintiff gave evidence that he was not trained at any stage to operate the Machine. However, he occasionally assisted the operator of the Machine, Mr Mith Siriwoot, to change the tools or dies on the Machine. The plaintiff also attended to the operation of this Machine on five or six occasions when Mr Siriwoot was on morning tea or lunch break. Apart from its high level of computerisation the Machine essentially operated like the thermo forming machines that the plaintiff had been trained on. It also had a hot plate (lower platen) affixed to a tray that was pushed up into the die attached to the upper platen and moved down again once the plastic product was heated, cooled and cut. The whole cycle of the hot plate moving up and down only took approximately three seconds. The Machine had a similar safety mechanism which caused the operation of the Machine to come to a standstill as soon as one of the Perspex windows was opened.

6 The plaintiff gave evidence that shortly after the Machine had been delivered it had to be sent back to the factory because something was not working properly. Further, a few weeks after the new Machine had arrived the plaintiff noticed that the Machine kept operating after a Perspex window had been opened. He says that he saw the lower hot plate move down after a window had been opened, whereas it should have come to an immediate stop. The plaintiff gave evidence that when he observed this incident he told Mr Siriwoot about it, as Mr Siriwoot was the regular operator of the Machine and the plaintiff considered him to be the older and more experienced employee. According to the plaintiff Mr Siriwoot replied that there was nothing wrong with the Machine, that it was safe and that the plaintiff should not worry about it. The plaintiff also spoke to Mr Andrew Hewlett and told him that the Machine was not working properly as observed by him. Mr Hewlett tested the Machine and it worked as required on that occasion. Mr Hewlett then told the plaintiff that the problem was fixed, that the Machine worked properly and that the plaintiff was not to worry about it.

7 On the day of the accident the plaintiff had just started to relieve Mr Siriwoot on the new Machine during morning tea when a jam occurred. The plaintiff opened one of the Perspex windows just as the lower hot plate was about to reach its lowest position and stretched forward to reach with his right arm into the space between the two platens. The plaintiff said that he rested his elbow on the lower tray which moves the hot plate up and down and tried to prise the stuck plastic from the die on the upper platen with his open hand facing upwards. The plaintiff estimated that his forearm was at an angle of 45 degrees and that the gap between the two platens when fully opened was approximately 30 centimetres. While the plaintiff was trying to pry the plastic off the die he noticed out of the corner of his eye that the lower platen had started to slowly move upwards. The plaintiff said that he tried to withdraw his arm and hand, but after the lower platen had moved approximately half way up it suddenly moved fast with a "bang" and caught his hand between the hot plate and the upper platen. His hand was burnt by the hot plate and all four fingers, other than the thumb, were cut severely by the knife surrounding the die. He called out to Mr Siriwoot who was still in the vicinity and who caused the lower platen to descend by employing the manual override switch.

8 The manual override switch was situated on the console on the outside of the Machine below the Perspex window which the plaintiff had opened in order to reach inside the Machine. The manual switch was a twist switch which consisted of a round knob with a vertical gripping plate which had to be turned sideways in order to make the lower platen move. If the knob was turned clockwise the lower platen moved up and if turned anti-clockwise the lower platen moved downwards. The lower platen moved considerably slower when the manual switch was engaged than during its normal cycle. The plaintiff said in evidence that he could not recall any part of his body leaning against the Machine while reaching into the gap between the platens.

9 The plaintiff agreed that an operating manual for the Machine was available. He had seen it lying on Mr Siriwoot's work station. However, he had only given it a quick flick to look at the pictures of the Machine and had not studied it in detail. He had not noticed a crushing hazard warning contained on p 9 of the manual. This warning consisted of a triangular sign showing a hand crushed between two rollers with the following words appearing next to the sign:

"A crushing hazard exists between the faces of the press. Never allow any part of the body to enter this area without first isolating the main electrical isolator supply and placing wooden safety block between the press faces."

10 The plaintiff said that he did not agree with this warning as he had been taught by Mr Hewlett that it was safe to put his hands into the gap between the platens once the safety guards were opened. In his view the wooden block would also have made it more difficult to reach the jammed material. The plaintiff insisted that he had not been instructed by anyone to use wooden blocks whenever he put his hands between the platens. He was also adamant that he had never seen a block of wood of approximately 45 centimetres in length and 8 centimetres in width and height which was to be used on the Machine as a safety precaution.

11 According to the plaintiff he was present on the factory floor when a big person and his female assistant came to inspect the new Machine. He said that the big person tested the opening of the Perspex windows and the operation of the safety mechanism on a number of occasions; about 12 to 13 times. On the last occasion he observed the Machine "do exactly what it did to me".

12 Mr William Apgar, a civil engineer/scientist with 30 years' experience in engineering, gave expert evidence on behalf of the plaintiff. He said that he had attended the premises of the first defendant after the accident and had observed the operation of the Machine. The plaintiff also attended the inspection and had demonstrated to Mr Apgar how he had placed his right hand inside the Machine on the day of the accident. There was a photograph attached to Mr Apgar's report which showed the plaintiff reaching into the Machine.

13 Mr Apgar explained that a safety mechanism on all four corners of the Machine came into operation as soon as a Perspex window (safety guard) was opened. This caused a kill switch to immediately stop the operation of the Machine. Mr Apgar said that the Perspex safety guards on the Machine were adequate and complied with Australian Standard AS 4024.1-1966. However, this Standard also required mechanical restraints for power presses in addition to the installation of safety guards. A mechanical restraint could consist of a scotching device which is a metal blocking device that swings automatically into position between the platens. Mr Apgar said that the cost of designing and implementing scotching guards would only have been a few thousand dollars. Although he himself had not designed scotching guards, he had designed similar pneumatic devices.

14 Mr Apgar stated that another option would have been to use a thick block of wood which the operator placed between the platens when he or she was working between the platens of the Machine. In Mr Apgar's view a scotching device would be preferable, as that did not depend on the worker remembering to place the block of wood in position. A block of wood could also possibly interfere with the working space required by the operator between the two platens and the proper functioning of a wooden block depended on the operator placing it in a position where it left him or her enough space but was still meeting its purpose. Mr Apgar conceded that although a block of wood was an old fashioned device, it was historically an accepted method of providing a mechanical restraint.

15 Mr Apgar gave evidence that the operating manual supplied with the Machine did not specifically provide instructions on how to clear a jam in the Machine. The only warning contained in the manual with regard to the risk of placing one's hands between the platens was the warning about crushing hazards on p 9 of the manual. Mr Apgar acknowledged that this warning said that the operator should never place any part of the body between the faces of the press without first placing a wooden safety block in between.

16 Mr Apgar was of the view that the Machine should have been supplied with a plaque containing a warning affixed in a position where it was clearly visible to the operator. The warning should have consisted of words such as: "Do not place hands between platens without putting wooden block in". Such a warning would have served as a constant reminder to the operator and also given rise to discipline if the procedure was not followed.

17 Mr Apgar further gave evidence that the operator should also have been referred to the operating manual during training and should have been shown the warning about the crushing hazard.

18 Mr Apgar was of the view that the U-shaped metal guard which was fitted over the manual switch after the accident could have been installed when the Machine was originally delivered. He said that it was a good idea to have some protection for the manual switch as it was possible that a person of the plaintiff's dimensions and stature would have to assume a position where his body pressed against the manual switch as he was leaning forward to reach into the Machine. However, he considered that if a wooden block had been supplied and used on the day of the accident, the U-shaped guard around the manual switch would not have been required.

19 Mr Apgar gave evidence that an earlier Australian Standard regarding the safe guarding of machinery emphasised that a designer of machinery should take into account that human errors arose from repetition work and that a designer should make such errors impossible. Mr Apgar pointed out that factory operators, who often have little education and have to do a repetitive job all day, may take short cuts that other people would first consider properly and then rule out as too risky. He expressed the view that a designer should try in the first instance to design a machine without any safety hazards. If that was not possible, the design should include some feature which blocked out the hazard. As a third and last resort, if that was not possible, the designer of the Machine should provide for adequate warnings and recommend training to highlight the hazard.

20 Mr Apgar stated that he was unable to say whether the Machine had malfunctioned on the day of the accident or whether the plaintiff set the operation of the Machine in motion by leaning against the manual switch. He expressed the view that computerised machinery was prone to malfunctioning and that the fact that the manner of malfunctioning could not be replicated during subsequent testing did not mean that a malfunction had not occurred on the day of the accident. He was of the view that the plaintiff's description of a "bang" indicated that the Machine had been malfunctioning. He explained that when he had operated the manual switch after the accident it caused the lower platen to move up slowly over a period of approximately 20 seconds without any banging sound when the lower platen reached the higher platen. However, Mr Apgar conceded that he did not have the expertise to determine whether a malfunction had occurred in the computer of the Machine on that particular occasion.

21 Mr Apgar also explained that the manual switch was a twist switch which needed to be turned a certain distance before the lower platen started moving. Once the switch was released it jumped back into its neutral position and the platen would stop moving.

22 Dr Steven Chew a mechanical engineer and certified professional ergonomist gave evidence on behalf of the first defendant. He said that in his view the most likely cause of the accident was the plaintiff inadvertently operating the manual switch when he leaned against it by reaching with his right hand between the platens. He thought that it was unlikely that the Machine had malfunctioned because a firm of electrical engineers had conducted tests on the Machine after the accident and he had relied on their expertise and conclusion. Although Dr Chew had not seen the plaintiff demonstrate how he had reached into the Machine on the day of the accident, he was of the view that it was possible that a person leaning against the manual switch with his hip or upper thigh could have put enough lateral pressure on the switch to cause it to move the hot plate upwards. Dr Chew also thought that it was possible for that pressure to be maintained for the time it took to raise the lower platen to a position where it would have crushed a hand between it and the upper platen. Dr Chew stated in his report that he had measured the gap between the upper and lower platen to be 140 millimetres when the platens were as far apart as possible. He stated that in his experience a person's average hand thickness is approximately 51 millimetres. As the lower platen moved at a speed of approximately 6 millimetres per second, if operated by the manual switch, the bottom platen would have had to be moving for 14 to 15 seconds before it would have closed sufficiently to trap the plaintiff's hand. Dr Chew stated that in his estimate it would only have taken a person one second to withdraw his or her hand from between the platens.

23 It was put to Dr Chew in cross-examination that if the plaintiff had given a reasonable amount of attention to the task at hand, he would have noticed that the lower platen was moving upwards over the period of 14 to 15 seconds and would have been able to retract his hand in time. This was particularly so as the lower platen was heated to approximately 150 degrees Celsius and the plaintiff should therefore have felt the approaching heat. However, Dr Chew was of the view that a person would not necessarily have noticed that the lower platen was moving upwards. He said this depended on how focused the plaintiff was on removing the plastic that had jammed, the position of his body and where his eyes were directed to.

24 Dr Chew expressed the view that the U-shaped bracket that was placed around the manual switch after the accident should have been installed at the time of manufacture. This would have prevented the possibility of an operator's body part coming into contact with the switch and inadvertently forcing it in a clockwise direction. Another method of preventing the inadvertent operation of the manual switch would have been to design and install an interlocking system which would cut off power supply not only to the automatic operation of the platens, but also to the manual switch as soon as the Perspex windows were opened. Pursuant to such a design the manual switch would only operate when used with a key and the key should be kept under strict control by management. Dr Chew stated that the inadvertent operation of the manual switch could also have been prevented if the Machine had been designed with a two handed manual control system which could have consisted of two switches that had to be operated simultaneously and had been located sufficiently apart.

25 Dr Chew further expressed the opinion that the Machine should have been supplied with a wooden block of sufficient dimensions and strength so that it would have prevented the platens from closing. In Dr Chew's view it would have been preferable to include in the design of the Machine a metal die safety block. This safety block could also have incorporated an electric plug which the operator would connect to a socket when the safety block was used. Inserting the plug into the socket would isolate the power supply to the press. However, even if a metal die safety block with or without electric interlock switch was not included in the design, the Machine should have been supplied with a suitable wooden block or, at the very least, the operating manual should have spelt out the dimensions and type of wood for the block.

26 Dr Chew gave evidence that when he inspected the Machine on 22 October 2007 he was shown a wooden block by Mr Stephen Hawkes, then the production manager of the first defendant, which was then used as a chock to prevent the platens from closing. Dr Chew measured the block dimensions to be 280 millimetres long, 103 millimetres wide and 80 millimetres high. Dr Chew said that the block was likely to have been made of dry Pinus Radiata. He tested the compressive strength of this wooden block and came to the conclusion that its strength and resultant safety factor were too low.

27 Dr Chew expressed the view that a system of automatic scotching blocks, as suggested by Mr Agpar, was not suitable for this specific machine because of the manner in which the sliding windows were designed.

28 Dr Chew pointed out that the operating manual provided with the Machine did not include a step by step procedure on how to clear a jam and said that it should have included such instructions. He said that it would only have taken a couple of hours to consider and formulate an appropriate procedure.

29 Dr Chew was also of the opinion that a prominent sign or notice warning of the safety hazard presented by the closing platens should have been placed on the Machine at the time of its manufacture so that it would serve as a constant reminder to the operator.

30 Dr Chew referred to a flow chart in Australian Standard AS 4024.1-1996 which indicated a step by step procedure to be followed by the designer of a machine when considering hazards and ways of eliminating them. This flow chart indicated that a designer should in the first instance attempt to eliminate any hazard by design. Only if it could not be eliminated by design, should the next step be followed which was to consider safety measures to guard the operator from the hazard. The third step involved a consideration of the system of work, personnel protective equipment, warnings, signs and symbols required to ensure that the operator used the machine safely. Dr Chew said that on the basis of this suggested method of design, it would have been appropriate for the designer of the Machine to eliminate the crushing hazard by design, which would have involved his suggested modifications to the manual switch, before considering the use of a wooden block which depended on adequate training and the cooperation by the operator.

31 Dr Chew agreed in cross-examination that training played a very important role and that during training the operator should be shown the manufacturer's safety instructions as contained in the operating manual and that those safety procedures should also be demonstrated to the operator. He agreed that it was a serious breach of an owner's responsibility if the owner gave safety instructions which were contrary to the operating manual for the Machine.

32 Mr Elias Argyropoulos (also known as "Leo") gave evidence on behalf of the plaintiff. At the time of the accident he was an operator of another thermo forming machine on the factory floor of the first defendant. He had worked for the first defendant since November 1997. Mr Argyropoulos did not see the accident happen but said that after the plaintiff's accident Mr Rory Kelly, the managing director of the first defendant, Mr Stephen Hawkes, the logistics manager, and Mr Andrew Hewlett, the floor manager, all talked to the operators of the machines and told them that in future they would have to make sure that they put a block of wood between the top and bottom platens when working in that gap even though the safety guards had been opened.

33 Mr Argyropoulos gave evidence that about four months prior to the plaintiff's accident, on 28 February 2003, he himself lost a finger in the thermo forming machine that he was operating. As a result he was off work until about May or June when he recommenced as a machine operator with the first defendant. When he returned to work he was not given any additional instructions on how to operate the machine. Mr Argyropoulos also said that he had never been provided with an operator's manual for the machine that he was attending to, but had received all his instructions from Mr Stephen Hawkes.

34 Mr Argyropoulos stated that on the day of the accident the plaintiff was as bright and cheerful as he usually was and he and the plaintiff were in the habit of exchanging teasing remarks.

35 The first defendant's managing director, Mr Rory Kelly, gave evidence on behalf of the first defendant. He said that he had purchased the first defendant's business in about January 2002, but had not come from a manufacturing background. He left it to his managers to put in place a safe system for the operation of the machines. The first defendant purchased the Machine for about $160,000 and it was delivered in January or February of 2003. Mr Kelly said that the Machine was not supplied with a wooden block. He said that he was present when the Machine was unpacked and he would have seen the wooden block if it had been there. Mr Kelly also commented that the first defendant purchased another thermo forming machine from the second defendant in 2005 and this came with a wooden block and a specific holder on the machine to house the block.

36 Mr Kelly was of the view that prior to the plaintiff's accident there were some wooden blocks on each machine but he was uncertain whether there was more than one block on each machine and exactly what size each block was. He initially referred to only one block of wood and said that he could not recall its size. When a photograph of the Machine was presented to Mr Kelly and he was told that it had been taken on the day of the accident, he agreed that a thinner piece of wood of approximately 1 inch by 1 inch which is shown on the photograph to lie on top of the control panel and a block of wood of larger dimensions which is shown standing on the floor next to the control panel were the pieces of wood that had been available to the operators at the time of the plaintiff's accident. Mr Kelly was of the view that some block of wood was already available on each machine prior to the plaintiff's accident because in his recollection WorkSafe had instructed the first defendant after the accident that the wooden blocks then in place were inadequate in size. In fact, the improvement notice issued to the first defendant by the Department of Consumer and Employment Protection ("WorkSafe") directed the first defendant to ensure that a physical barrier was used while maintenance was being done to prevent the platens from meeting and that the physical barrier be "greater in length than the plates". Mr Kelly was not sure whether the wooden blocks were introduced by the first defendant after Leo's accident in February 2003. He said he could not say exactly whether a 4 inch by 4 inch wooden block was available on the machines prior to the plaintiff's accident, as it was a long time ago.

37 Mr Kelly gave evidence that he had instructed the general manager to make sure that a wooden safety block was placed between the platens when an operator had to move his hands into that space, but he left the instructions to and training of the operators to his managers. It was only after the plaintiff's accident that he personally spoke to his staff and emphasised in the strongest terms that they could lose their job if they did not follow these instructions. He said that his managers may not have been as forceful in their instructions prior to the plaintiff's accident.

38 Mr Kelly gave evidence that the first defendant had never followed the manufacturer's instructions that the Machine should be turned off at its electricity supply every time the operator needed to do some work between the platens. Mr Kelly said that it would take on average approximately 15 minutes to restart the machine and it was just impractical for the manufacturer's instructions in this regard to be followed.

39 Mr Kelly denied that he had been told at any stage that the Machine was malfunctioning. He also denied any suggestion that the Machine was malfunctioning when the representatives from WorkSafe came to test it after the accident. He said that if there had been any doubt about the Machine continuing to operate with the safety guards open, he would have sent it straight back for repairs.

40 Mr Kelly gave evidence that on the day of the accident, when he collected the plaintiff's belongings he noticed that there was a small plastic bag with marijuana stuffed into a packet of cigarettes which was in the plaintiff's kit. The package of marijuana was approximately 1 or 2 inches square. He asked Mr Andrew Hewlett to speak to the plaintiff about this.

41 Mr Kelly also said that after the accident the plaintiff was employed for some two months as a forklift driver for the first defendant. Mr Kelly was of the view that the plaintiff managed to do this work well. It involved him moving raw material and finished goods with the forklift between the warehouse and the factory floor. In addition the plaintiff sometimes moved rolls of material into place although Mr Kelly had told him that he was not required to do that. He said that the plaintiff was sometimes very energetic and sometimes not, which he thought was characteristic of the plaintiff. Mr Kelly said that if the plaintiff experienced pain on doing this job, he did not tell him about this.

42 The first defendant also called Mr Mith Siriwoot, who was a machine operator/supervisor on the factory floor in 2003. When the Machine arrived in early 2003, he was assigned to be its operator. He said that the Machine was not delivered with any wooden block. He stated that Leo's accident happened because the safety guards of the machine he was working on had been taken off and two people were working on the machine doing a sample run. There was a "communication error" which caused the accident.

43 Mr Siriwoot gave evidence that after Leo's accident "the boss" told everyone to be more careful and to operate the machines one person at a time. He said that no instructions were given after Leo's accident to use wooden safety blocks and no big blocks of wood were available on the machines at that time. The operators only used a small wooden block to lift the plastic material from the hot plate. It was only after the plaintiff's accident that the operators were given a bigger block of wood to use on the machines. On being shown the photograph taken by WorkSafe with the thin piece of wood on top of the console and a thicker piece of wood standing next to the console, Mr Siriwoot said that he could not remember seeing the thicker piece of wood at the time of the accident. Up until that time he had only used the small piece of wood on top of the console to prevent the material sticking to the hot plate.

44 Mr Siriwoot said that on the day of the accident he rushed to the plaintiff's assistance when he heard him screaming. The plaintiff was standing approximately in the middle of the console with his right hand stretched out into the Machine. He approached the plaintiff from the plaintiff's right, walked around the plaintiff and operated the manual switch to the left of the plaintiff.

45 Mr Siriwoot said that it had never been his practice to isolate the electricity supply to the Machine when he placed his hands between the platens. He said that he had access to the operating manual and had read parts of it. However, he said he could not understand everything in the manual and he already knew how the machines operated as they all had the same safety system. Mr Siriwoot was referred to the warning regarding crushing hazards on p 9 of the operating manual, but indicated that he did not understand all of the English language, particularly not the word "isolate".

46 Mr Stephen Hawkes, the production manager for the first defendant, also gave evidence. He said that he had been working for the first defendant for 11 years and had been the logistics manager in 2003. This meant that he organised what product was manufactured on each machine at any given time and arranged for despatch and receipt of goods. He stated that at peak periods he had also operated the machines for a couple of hours before the other operators arrived or as lunch time relief. He was present when the Machine was delivered and recalled that it was not supplied with any wooden blocks. When the Machine was delivered a representative from the second defendant demonstrated the Machine. However, it was a "static" demonstration without any material running through the Machine. The representative did not demonstrate the use of wooden blocks.

47 Mr Hawkes said that the first defendant obtained its own wooden blocks after Leo's accident. He was on leave when Leo's accident occurred, but when he returned approximately a week afterwards he found that wooden blocks had been provided for each machine. He said that these blocks of wood were approximately 2 inches by 3 inches wide and 3 feet long. They came out of containers which had been delivered to the first defendant and were soft pine. On being shown the photograph taken by WorkCover and the piece of wood standing next to the console, Mr Hawkes said that the blocks of wood provided after Leo's accident were similar to the block of wood in the photograph. After the plaintiff's accident WorkSafe required the first defendant to obtain a thicker piece of wood. Wooden blocks of approximately 4 inches by 4 inches were then acquired by the first defendant. These blocks of wood were made of dressed pine. Mr Hawkes also said that after the plaintiff's accident Mr Kelly put up a warning sign on each machine indicating that the blocks of wood had to be used whenever an operator was working between the platens.

48 Mr Hawkes gave evidence that he was present when the representatives from WorkSafe came to look at the Machine and tried to operate the manual switch by leaning against the console and pushing against the manual override switch. Mr Hawkes said that one of the representatives from WorkSafe managed to operate the manual switch so that the hotplate lifted by approximately 4 to 5 millimetres. However, the lifting movement was not sustained. The representative from WorkSafe had a mobile phone or keys or something similar in his pocket.

49 Mr Hawkes said that in 2003 he was not involved in providing training to operators. He had also not had any occasion to read the operating manual for the Machine. He stated that it would take at least three to four minutes before the Machines would run again once the electricity supply to them had been switched off. Mr Hawkes was not aware of the plaintiff having complained at any stage about the malfunctioning of the Machine.

50 The second defendant's first witness was Mr Peter Bushe, who was its automation manager in 2003. Mr Bushe said that it had been his duty to test the Machine to make sure that it operated properly prior to it being shipped from the first defendant's premises in Melbourne to Western Australia. He completed an automation check list, dated 18 February 2002, in respect of the Machine. This list indicated that he had checked the operation of the "checkguard switch". Mr Bushe said that he had opened each safety guard at a time and checked that the safety mechanism worked properly. Mr Bushe recalled that the Machine had been sent back after delivery, but thought that this was by reason of some mechanical problems. Mr Bushe was shown a letter from the first defendant to the second defendant dated 11 February 2003 which stated, amongst other problems, that the start and reset buttons were wired around the wrong way and that the computer on the Machine would not stay on one screen but kept reverting to the host screen. Mr Bushe acknowledged that these were electrical faults and that they should have been picked up by him when he checked the Machine prior to delivery.

51 Mr Bushe also gave evidence that when the second defendant's machines were packed there was a standard tool kit that was sent along. This tool kit included spanners, sockets, an Allen key and a wooden safety block. He said the wooden safety block was approximately 100 millimetres by 100 millimetres and about 200 millimetres long. It was bought from a hardware store and consisted of cypress pine. He said that a wooden block should have been sent along in the tool kit for the Machine, but he could not say whether this had happened in this case or not.

52 The second defendant also called Mr Eugene Mueller, who is an electrical engineer and practises as Mulsan Engineering Pty Ltd. He was asked by the second defendant after the plaintiff's accident to check whether the Machine had been correctly wired with regard to the electric wiring indicated on drawings supplied to Mr Mueller. Mr Mueller prepared a report, dated 13 August 2003, which indicated that the Machine had been checked and that all the electrical wiring had been found to be correctly wired as per the drawings then supplied to him. The report said that after functional testing Mr Mueller could not create an "unsafe condition" and that the safety devices interrupted the normal running of the Machine immediately. Mr Mueller said in evidence that he had opened each safety guard individually, waited possibly 20 to 30 seconds before closing them again and the Machine had stopped working during that period. He could not recall whether he had tried to manipulate the manual override switch without using his hands.

53 Mr Nicholas Mebberson, the managing director of the second defendant, also gave evidence. He obtained a degree in mechanical engineering from the University of New South Wales in 1987. He said that he and his father had bought the second defendant's business in about 1991. In 2002 the business achieved a turnover of between two and three million dollars and exported machines throughout Australia and to almost twenty overseas countries. The Machine, model number 4528, was an once-off design as the machines were constantly evolving. The Machine was based on the design of the person from whom the business had been purchased and Mr Mebberson himself was responsible for changing approximately a quarter of the design of the original Machine. In the early days Mr Mebberson had consulted the Australian Standards, but in 2002 the second defendant built its machines to comply with the CE rating which is the European Union rating. The second defendant engaged consultants to make sure that its machines complied with the CE rating.

54 Mr Mebberson said that prior to the second defendant's Machine being built according to the CE rating, machines that were similar to the Machine were not supplied with a wooden block. However, after the second defendant's adherence to the CE standard a wooden block was supplied with every machine. Mr Mebberson said that the Machine may have been the first or second machine that had been built to comply with the CE rating.

55 Mr Mebberson said that he checked the adequate packing of each machine that left the second defendant's premises. At that time he also usually checked that all items which made up the kit that was packed in a cardboard box and sent along with the Machine were present. The kit included a spanner, a socket, a grease gun, an oil can, an Allen key set and a wooden block. Mr Mebberson gave evidence that there was no check list for these items but that he would have noticed if one of the items was missing. There were about 12 items which made up the kit. The wooden block was made of hard wood and its dimensions were 4 inches by 4 inches with a length of approximately 350 millimetres.

56 Mr Mebberson said that prior to the plaintiff's accident the second defendant had received no complaints with regard to the operation of the manual switch and had never been informed of the inadvertent operation of this switch on any machine. Approximately 10 earlier machines would have had the manual override switch in the same location as that on the Machine.

57 When the second defendant was advised of the plaintiff's accident Mr Mebberson tried to operate an identical manual switch on a machine which was stationed in Victoria. He said that he was not able to do this without using his hands; neither with his hip or a phone or keys in his pocket or a belt. He thought that it was nearly impossible for the manual switch to have been inadvertently activated. Mr Mebberson stated that it took approximately 20 seconds for the platens to come together once the manual switch had been put into operation and that the lower platen would normally be heated to about 125 degrees Celsius.

58 Mr Mebberson was of the view that the wooden block which was supplied together with the Machine would have been of sufficient strength to withstand the closing force of the patens because the closing force would have been considerably less at the level where the higher platen comes into contact with the piece of wood than at the level where the two platens close without a block of wood in between. This was because the Machine was a mechanical toggle and the closing force was only about 1 or 2 tonnes when the platens were approximately 4 inches open (the thickness of the block wood) and not 40 tonnes which was the closing force once the two platens closed on each other.

59 After the accident Mr Papamarkos, a WorkSafe inspector spoke to Mr Mebberson on the telephone and advised him that WorkSafe required the second defendant to put a shield around the manual override switch. As a result of these discussions the second defendant sent a safety notice, dated 19 June 2003, to all its customers whose machines had a manual override switch. The notice advised the customers of the plaintiff's accident and noted that the manual switch might have been accidentally activated. The safety notice also reminded customers that no body part should be placed between the platens while the Machine was energised and that the additional precaution of placing a hard wooden block between the platens should be taken. Mr Mebberson said that together with these notices the second defendant sent a U-shaped metal guard with instructions for the installation of it around the manual switch. Mr Mebberson stated that the cost of such a guard was only approximately $40 to $50 and it would have taken approximately 20 minutes to have fixed it in place.

60 Mr Mebberson gave evidence that the operating manual was drafted by Mr Bushe. Although Mr Bushe was an electrical engineer, Mr Mebberson said that he had good mechanical knowledge and had been involved with the commissioning and installation of the machines. Mr Mebberson was not involved in writing the manual. Mr Mebberson acknowledged that the operating manual did not contain any instructions on the operation of the manual switch and also included no procedure on how jammed material should be cleared from the die. Mr Mebberson acknowledged that the caution regarding crushing hazards on p 9 of the operating manual only partly applied to the procedure for clearing a jam, as an operator would not in the normal course of operating a machine totally isolate the electricity supply before putting his hands between the platens. He said that operators might be clearing blockages a number of times an hour and that it was not practical to turn off the electricity supply. However, he emphasised that the instructions in the manual to place a wooden safety block between the platens was relevant to the procedure for clearing a jam and should have been followed.

61 Mr Mebberson acknowledged that there were metal brackets around other switches on the console of the Machine. He said that those brackets had been introduced because customers tended to "knock the end of the switches off" while standing close to the console.

62 Mr Mebberson explained that once the automatic operation of the Machine had been interrupted by reason of the fact that either the stop button had been pressed, or the safety guards had been opened or the emergency stop button had been pressed, the automatic operation of the Machine could only be reactivated by the start button being depressed for two to three seconds. This was necessary so that the platens could open fully again which the Machine recognised as a prerequisite for material being fed through the platens again.

63 The second defendant also called Mr Gary Papamarkos, an inspector for WorkSafe. It was clear from the evidence of Mr Papamarkos that he had little independent recollection of his visits to the first defendant's factory and relied mainly on the notes made by him and other employees of WorkSafe in an investigation report. Mr Papamarkos could not recall that the manual override switch consisted of a twist button and initially referred to it as a button that has to be depressed. He said that he visited the site on the day of the accident and took some photographs on that day. The investigation report confirms this. However, Mr Papamarkos said that he took photographs on two occasions and that it was no longer possible to identify from the copies of the photographs currently on the WorkSafe file which photographs were taken on which occasion. The investigation report indicated that Mr Papamarkos went on site on 12 and 13 June 2003 and on 20 June 2003.

64 Mr Papamarkos said that he was initially baffled about how the accident could have happened. He gave evidence that he and another representative of WorkSafe tried to replicate the movement of the platens with the safety guards being open but did not manage to do so. He said that from his recollection he happened to lean against the manual override switch with a mobile phone in his pocket and once he lent against the switch a bit harder, the switch actually started moving. Mr Papamarkos was also shown a twist-type of switch mounted on a plastic box (Exhibit 51), but could not say whether that switch was similar to the manual override switch that he saw on the Machine.

65 The defendants also tendered extracts from the plaintiff's records kept by Sir Charles Gairdner Hospital 1906. These extracts were admitted as business records pursuant to s 79C(2)(a) of the Evidence Act 1906 (WA) (Exhibits 58, 59 and 60). The defendants both pleaded that the plaintiff was liable for contributory negligence in that he had consumed marijuana to such an extent as to impair his powers of observation and judgment as a consequence of which he failed to notice (by way of noise or movement) that the lower platen was ascending and failed to remove his hand in time. The defendants submitted that the information contained in the extracts from the plaintiff's hospital records indicated that he was a regular user of marijuana, had smoked two to four cigarettes per day at the time of the accident and was likely to have smoked these at work as he had in the past experienced difficulties with his parents regarding his drug use.

66 Exhibit 58 is an anaesthesia record. It indicates that a pre-operation assessment was made by a person named Wicks on 11 June 2003. The date is clearly wrong as the accident only occurred on 12 June 2003. However, this record indicates that the plaintiff admitted to smoking and to moderate intake of alcohol. Next to "other" the record lists "marijuana; (XIU speed)". Exhibit 59 is an opiate withdrawal chart which is undated and does not indicate by whom it has been completed. However, it has the plaintiff's name and his admission date printed at the top of the document. At the bottom of this document a person has written the following words: "Ex speed taker 2/52 ago; marijuana smoker 2 - 4/day". Exhibit 60 is an extract of the running inpatient notes kept by the staff of Sir Charles Gairdner in respect of the plaintiff. As part of an entry on 16 June 2003 a person, whose name is not legible, entered the following information:

"Mother rang and felt improvement in relationship between Michael and her happened Sunday pm, father to come in this evening with mother and hoping will also feel able to talk to his father. Psychologist hopefully able to not only deal with trauma due to accident but also the relationship problem re parents. Bright, breezy boy to staff, sullen and non-communicative when parents in over weekend, due to past problem of parents calling police in when taking drugs as a 14 year old. Apparently like this ever since with parents, and refusing to take part in any family activities."

67 In support of their claim of contributory negligence the defendants also relied on the evidence of Dr Allen Home, occupational physician, who said in his report dated 3 September 2007 that long term use of cannabis affected short term memory and co-ordination. Dr Home stated that the most common short term effects of the use of cannabis were talkativeness, bouts of hilarity, relaxation and greater appreciation of sound and colour. However, experimental studies had shown that cannabis impaired cognition and psychomotor function and that cannabis smokers performed less well on tasks requiring concentration and intellectual or manual dexterity such as driving. He said that effects generally started within a few minutes after smoking and might last for up to one hour on a low dose and several hours on high doses. In cross-examination Dr Home conceded that the usual reaction by a person who was a regular cannabis user was to display "sleepy-self absorption". However, he said that this also depended on the individual's reaction.

68 The meeting of the platens around the plaintiff's right hand resulted in a significant crush and burn injury. The plaintiff's four fingers other than the thumb were amputated and he received significant burns to the back of his hand. The plaintiff was rushed off to hospital where the last two digits of his middle, ring and little finger were successfully re-implanted during a lengthy operation. The second and third digits of the index finger could not be saved and the finger had to be amputated at the proximal interphalangeal joint. The plaintiff underwent another operation in July 2004 when the webbing between his ring and little fingers was released.

69 After the operations the plaintiff was required to wear flexion and extension splints as much as possible and a report from Ms Elizabeth Saleeba, occupational therapist, dated 11 November 2003 and tendered by consent, indicates that the plaintiff did do so and that this assisted with the flexion and extension of his fingers.

70 The plaintiff still has a significant disability in his right hand. Apart from the index finger being amputated at the proximal interphalangeal joint, the same joint of the other fingers is fused at 0 -30 degrees and the distal interphalangeal joint of the other fingers is fused at 60 - 80 degrees. This means that the plaintiff's right hand is permanently in a clawed position. He is also not able to bring the tips of his three remaining fingers to the palm and therefore has no useful grip in his right hand. He is only left with a pinch grip between his right thumb and the remaining phalanx of his index finger. The injury has therefore resulted in joint deformity, joint stiffness, lack of grip and strength and altered sensation impact. In addition the plaintiff has significant scarring over the back of the hand as a result of the burn injury.

71 In December 2003 the plaintiff reported to Dr David Kennedy, specialist in musculoskeletal medicine, that he still had persistent pain in the fingers of the right hand especially in the knuckle at the base of the fingers as well as numbness, tingling and phantom pains in the amputated index finger. In July 2005 the plaintiff reported to Dr John Ker, consultant physician in rehabilitation medicine, that he experienced a loss of grip strength, dexterity and sensitivity in his right hand, as well as abnormal sensitivity at the border of the right hand below the little finger.

72 In his evidence the plaintiff said that the pains and aches in his hand had become a little worse over the last four years, as initially his hand was only feeling numb. The plaintiff said that using a gripping device to strengthen his hand was painful and that it was painful to cut up food with a knife. The plaintiff also stated that he had experienced pain when he did a period of work rehabilitation at Giant Hyundai where his duties were store keeping. The plaintiff did not describe in any better detail exactly what activities caused him pain in his hand.

73 In August 2007 the plaintiff reported to Ms R Jodrell, occupational therapist, that the phantom pain in his index finger had diminished over time and now occurred rarely. However, he noticed a pain in the lower palm just above the wrist which was present at a low level most of the time but was felt at a greater level by pressure such as leaning on the wrist when pushing up from a seat. The tip of the index finger experienced sharp jabbing pains at times during the day and the lateral aspect of the little finger was painful. The plaintiff also reported that the pain was worse when the weather was cold.

74 The plaintiff was referred by his plastic surgeon, Mr Mark Lee to Dr John Akers, specialist anaesthetist and pain consultant. It appears from Dr Akers' report that he first saw the plaintiff in November 2006. At that time the plaintiff reported to Dr Akers that the pain was occurring daily and was exacerbated by activity and psychological stress. The pain was generally about 5/10 on average but would increase to 10/10 with exacerbation. Dr Akers diagnosed the plaintiff as having neuropathic pain with a potential for phantom pain. Dr Akers recommended injections of Calcitonin which might reduce significantly some of the pain.

75 The plaintiff consulted Mr Greg Finch, orthopaedic surgeon. Mr Finch recommended that the plaintiff be referred to a skilled reconstructive hand surgeon to consider a corrective operation to the fingers to allow them to be put in a more functional position. It does not appear that the plaintiff received advice to proceed with such an operation as no further evidence was provided and no claim is made in this regard. In his report of 4 November 2007 Mr Finch advised that the plaintiff might require fusion of various joints in the future or the excision of painful neuromas which can sometimes be a problem with amputated fingers. The costs of such an operation would be in the order of $5,000 to $10,000. Mr Finch estimated that the plaintiff would require ongoing attendances at a general practitioner of about six per year, three attendances per year at a medical specialist and five to ten sessions of physiotherapy. With respect to the latter attendances, Mr Finch stated that the plaintiff had probably reached maximum medical improvement with respect to his injury. Mr Finch was called as a witness by the plaintiff by video link, but was not cross-examined by counsel for either defendant.

76 The plaintiff has also been diagnosed by Dr Gemma Edwards-Smith, consultant psychiatrist, as suffering from post-traumatic stress disorder. Dr Edwards-Smith saw the plaintiff for a medical-legal assessment in July 2005, October 2006 and October 2007. She reported that the residual psychological symptoms of this disorder had improved but that the plaintiff continued to experience flash backs of the accident and intrusive images of his hand without the fingers. The plaintiff also reported having disturbing dreams. Dr Edwards-Smith diagnosed psychological symptoms of low self-esteem and anxiety. She recommended that the plaintiff attend a clinical psychologist for a further 8 - 12 sessions for ongoing therapy. In her reports Dr Edwards-Smith stated that the plaintiff presented as immature and inarticulate and tended to smile frequently throughout the interview. He also found it difficult to describe his emotional experiences.

77 The plaintiff has already received psychological treatment from Mr Christopher Semmens, clinical psychologist, who has seen the plaintiff on 14 occasions between November 2006 and May 2007. He also diagnosed the plaintiff with post-traumatic stress disorder and stated that in addition the plaintiff suffered severe levels of stress, anxiety and depression. He had chronic pain, difficultly with sleeping, intrusive dreams of the traumatic event, irritability and anger and an issue of self-esteem and body image. Dr Semmens already tried several treatment approaches with the plaintiff with relative success, but had not achieved success in respect of the symptoms of the post-traumatic stress disorder. In evidence Mr Semmens recommended that he try a further method of treatment for post-traumatic stress disorder for approximately 15 sessions at $192 per session.

78 The plaintiff was born on 4 March 1980 and is currently 27 years of age. He attended high school until the first term of year 10 only and then left school to assist his father in his refrigeration repair business. After a year or two the plaintiff obtained employment with the first defendant in a manual labour position. The plaintiff had not tried to obtain a driver's licence prior to the accident. He said that he was concerned that he might fail the test. However, the plaintiff had obtained a forklift driver's licence prior to the accident.

79 Ms Fiona Vandamme, clinical psychologist, provided a report, dated 22 November 2007, which was tendered without objection pursuant to s 79C of the Evidence Act 1906. Ms Vandamme stated that the plaintiff had reported a history of learning problems at school and required speech therapy soon after starting primary school. Ms Vandamme conducted the Raven's Progressive Matrices test which in her opinion is a good estimate of a person's innate intellectual ability. The plaintiff scored 38 per cent which Ms Vandamme stated to be in the average range. She also administered a clerical speed and accuracy test for which the plaintiff scored 35 per cent at 100 per cent accuracy. However in respect of a test for spelling (recognition) the plaintiff only scored 3 per cent, which is well below average. Ms Vandamme also administered reading, spelling and arithmetic sub-tests in which the plaintiff scored well below average (6 per cent in the first test and 1 per cent in the two latter tests). According to Ms Vandamme the testing indicates that the plaintiff has non-verbal problem-solving skills and an intellectual capacity in the average range, but literacy and numeracy skills which are well below average. She also noted that writing with his right hand was very slow and awkward and that he complained of pain after a few minutes' use.

80 Ms Vandamme reported that the plaintiff was motivated and fully cooperative during the testing process. However, she did not consider him suitable for work involving oral communication skills because of Dr Edwards-Smith's report that the plaintiff had low self-esteem, anxiety and ongoing symptoms of post-traumatic stress disorder. Ms Vandamme was of the view that the plaintiff would have "extreme difficulty" in gaining employment in the open market.

81 Ms Violet Stojanovic of Southern Rehabilitation provided a medical-legal report to the plaintiff's solicitors regarding the plaintiff's prospects of employment. Ms Stojanovic said that she had been a rehabilitation counsellor for 23 years but had not been actively engaged in trying to find employment for the plaintiff. She only assessed his prospects of employment based on her experience and a discussion with a major labour hire company. On the basis of an interview with the plaintiff and the review of various medical and rehabilitation reports provided to her she came to the conclusion that the plaintiff would have "extreme difficulty" in obtaining and maintaining open employment. Her view was that the plaintiff's disability, poor educational background, past learning difficulties, low potential for retraining, low self-esteem and confidence and the effects of post-traumatic stress order collectively had a significant negative impact upon his future employment prospects. In her view the plaintiff's likelihood of obtaining paid employment in the open market place was dependant upon a prospective employer being sympathetic to workers with disabilities.

82 Ms Stojanovic considered the plaintiff's suitability for a stores person. However, she considered that stores work involved the movement of stock to and from a store and that this required manual handling of stock and packages. In her view it would be difficult to locate a position where all of the stock to be moved was lighter than 10 kilograms, where there were no large boxes to be lifted, no ladders to be climbed and all shelves were below head height. Ms Stojanovic stated in her report of 26 July 2005 that she had reviewed the job advertisements in the previous Saturday's West Australian and had found only two out of 21 advertisements that the plaintiff could possibly apply for, even discounting his hand disability. Most advertisements for a store person required a current driver's licence, a degree of experience, including forklift driving, and some computer skills. She reported that the plaintiff had tried to find his own work as a stores person and had shown her an extensive list of employers that he had unsuccessfully visited in person to apply for a job. The plaintiff confirmed this in evidence.

83 Ms Stojanovic also considered retail/sales work or office work but excluded the former by reason of the plaintiff's low self esteem, anxiety and ongoing systems of post-traumatic stress order (as reported on by Ms Vandamme) and the latter because of the plaintiff's low literacy and numeracy skills. Ms Stojanovic was also of the opinion that in order to hold down an office job the plaintiff would require a significant amount of computer skills for which he would have to be retrained. His inability to use a keyboard with two hands would impact on his speed and productivity. Ms Vandamme further considered a job as courier or truck driver but came to the conclusion that this also usually required lifting of parcels.

84 In order to assess the plaintiff's ability to drive a motor vehicle Ms Stojanovic commissioned a report from Ms Laurel Hocking, an occupational therapist specialising in driver training. Ms Hocking filed a report and also gave evidence on behalf of the plaintiff. She said that the plaintiff was unable to maintain a functional right hand grip of the steering wheel to enable him to use an acceptable bilateral technique. She therefore recommended that the plaintiff should only drive a suitably modified vehicle with a left spinner knob and a remote accessory switch unit which would enable him to control the indicators, wind screen wipers, vehicle lights and horn whilst maintaining unilateral steering control with his left hand. The costs of a spinner knob, a remote accessory switch unit and the required vehicle inspection was a total of $2,000. Ms Hocking stated that the plaintiff would require approximately 10 driving lessons by an instructor experienced in driver rehabilitation at $85 per hour. She explained that the number of hours were required to teach the plaintiff how to drive the modified vehicle and to provide him with some practice on a modified vehicle.

85 Ms Stojanovic also reported that she had asked Ms Hocking for her oral opinion regarding the plaintiff's ability to drive a forklift. Ms Hocking advised her that the plaintiff's impaired right hand function would prevent him from operating a standard forklift which required the right hand to operate a spinner knob to control steering. Accordingly, Ms Stojanovic came to the conclusion that a forklift driver was not a suitable occupation for the plaintiff.

86 Dr John Ker, consultant physician in rehabilitation medicine, gave evidence on behalf of the plaintiff regarding his capacity for future employment. In his reports of July 2005 and April 2007 Dr Ker expressed the view that the plaintiff would be able to find employment at a competitive level given "appropriate light work and with sustained application to that work". Dr Ker was of the view that the plaintiff had the ability and skills to be either a courier driver or a forklift driver. In his view the plaintiff would not be suitable for a storeman position as this would entail lifting weights of significance and because the plaintiff had severely curtailed handwriting skills and limited experience of computer usage. Dr Ker recommended that the plaintiff have ongoing assistance from a vocational rehabilitation agency in finding a meaningful work placement.

87 However, in giving evidence Dr Ker was much more circumspect regarding the plaintiff's prospects of employment. He confirmed that he did not consider a store person to be suitable employment for the plaintiff by reason of the fact that the plaintiff could barely write with his left hand; had educational disadvantages and would still be required to manually handle stock. Any work opportunity would have to be confined to absolutely basic skills, whether it was driving work or tallying goods in and out of a yard. If the plaintiff was required to learn any additional skills or the work became more complex, he would be further disadvantaged and would remain vulnerable to dismissal from a current work position. Dr Ker expressed the opinion that in all likelihood the plaintiff would be unsuccessful in sustaining a particular position.

88 Dr Ker stated that a courier driver would be a suitable employment position if the plaintiff could confine the items handled to documents or correspondence. It would be difficult for the plaintiff to carry, lift or stack any heavier items one-handed. Dr Ker expressed his understanding, although he was not certain of this, that courier drivers did not have much discretion regarding the items they wished to deliver. Regarding the operation of a forklift, Dr Ker noted that the steering was carried out with the left hand and that the right hand was used for various hydraulic controls. He said that if the plaintiff's hand was pain sensitive, particularly if the stump of the index finger received a knock, it would not be suitable for the plaintiff to drive a forklift for significant times during the day.

89 Asked how his views expressed in giving evidence were to be reconciled with the more positive statements made in his reports, Dr Ker said that the plaintiff would have "extraordinary difficulty" in finding a job in the open market, but that he was hopeful that the plaintiff would be able to find a benevolent employer and a suitable position rather than accepting the premise that the plaintiff was totally and permanently unfit for work. Dr Ker was of the view that the plaintiff would need vocational rehabilitation assistance in order to find a suitable position.

90 The defendants' case was that the plaintiff was able to work in future as either a store/despatch clerk, a forklift driver or a courier driver. The defendants relied on the evidence of Dr Allen Home, occupational physician. Although Dr Home acknowledged that the disability in the plaintiff's right hand involved a lack of the ability to grip with that hand or carry out fine manipulation, he said that the plaintiff was able to undertake light positional and stabilising manual activities with his right hand and wrist. He could also grip very light objects between his thumb and stump of the index finger. Dr Home agreed that the plaintiff might experience mild pain symptoms in the right hand with sustained manual handling. Although the plaintiff had reported to Dr Home a sharp pain at a level of 10 out of 10 in the web space between the middle and the ring fingers when knocking the hand and less prominent pain of about 5 out of 10 with excessive movement of the right hand, middle and ring fingers, Dr Home said in evidence that the plaintiff had told him that he had previously operated a forklift and had not indicated any difficulty with doing so. Accordingly, he did not think that this would cause the plaintiff pain.

91 Dr Home was of the view that the plaintiff would be able to operate a forklift by gripping the hydraulic levers between the thumb and the base of his index finger or he could operate the levers with his palm as they have a knob at the end. Dr. Home stated that if the plaintiff was a stores person, it would only involve forklift driving intermittently throughout the day and the problem of pain arising after prolonged use would not be an issue. When asked whether it would not be difficult for the plaintiff to find a job where he did not have to manually handle larger items like cartons, particularly if one had fallen off the forklift, Dr Home expressed the view that the larger stores employed people to only do specific jobs so that the plaintiff would be able to do all handling by forklift and if a carton fell off, he could ask for assistance. Dr Home did not seem to take into account that if the plaintiff was to drive a forklift all day this might again cause him to have pain in the right hand.

92 Dr Home questioned Ms Stojanovic's practical knowledge of the duties of a forklift driver, as she had adopted the oral advice by Ms Hocking that the plaintiff would not be able to drive a fork lift as the steering was on the right hand side. Dr Home said that the steering was in fact on the left hand side on all standard fork lifts.

93 Dr Home was of the view that the plaintiff could also work as a courier driver. He stated that in his work he saw a 1,000 people a year and obtained a history of what they had done and what rehabilitation they were undergoing. From his experience he though that it was possible for a courier to specify to his employer that he could only do jobs which involved light objects and mail.

94 Dr Home also questioned the results of the spelling and arithmetic tests reported upon by Ms Vandamme. He said that a 1 per cent score was what one usually expected from patients with a severe head injury or Down's syndrome. He thought that the results might have been negatively affected by the plaintiff's inability to write.

95 Dr Home acknowledged that the plaintiff would be disadvantaged in finding employment because an employer would be likely to give the available position to a person without a disability. However, he said that the current labour market in Western Australia was such that almost everyone who wanted a job was guaranteed a job. In making this statement he relied on a discussion that he had with a colleague who was working in the area of employment of personnel. Dr Home did acknowledge that the plaintiff, having been unemployed for a substantial period of time, would require the assistance of a rehabilitation provider to find a suitable job and that he would again need such assistance if he fell into unemployment.

96 Dr Home was of the view that the plaintiff did not require any further psychological counselling, because the plaintiff had told him that he did not feel the need for any further psychological counselling. He also thought that apart from a bicycle glove the plaintiff did not require any special equipment, because he had to date not purchased any such equipment and seemed to manage without it.

97 The defendants further relied on the various reports by Mr Shane Taranto of Star Injury Management Services which reports summarised the steps taken by Ms Christine Poynton, a consultant of Star Injury Management Services to assist the plaintiff to rehabilitate into the workforce. The reports indicated that the plaintiff was at first given the opportunity to work again at the first defendant's factory on the basis of limited duties and reduced hours. The plaintiff's duties were described in the report as supervisory in nature and expressly excluded any setting up of tools or changing of moulds. One of the duties was to position the roles of plastic for use on the machines by way of forklift operation up to 20 minutes at any one time. The reports indicated that certain restrictions were placed on the plaintiff's recommended duties such as the handling of weights of no more than 5 kilograms unilaterally and 10 kilograms bilaterally. The plaintiff was also to avoid accessing any area that required work above head height.

98 It appears from the reports that the plaintiff started working on the first defendant's factory floor on 14 October 2003 for three days per week and four hours per day. The Star Injury Management Services report, dated 3 December 2003, stated that the plaintiff had not progressed with regard to an increase of hours as he reported ongoing symptoms and poor capacity/hand function. Accordingly to this report the plaintiff also expressed the desired not to retain his employment with the first defendant and to find another work opportunity. The report also mentioned that the employer's perception was that the plaintiff had shown a reduced level of commitment as he had absented himself from work on occasion without advising the employer.

99 It appears that the plaintiff started to work full time for the first defendant in early March 2004. A report dated 11 April 2005 stated that the plaintiff had maintained full attendance with improved diligence and work capacity. The report also said that after discussion with the employer the author of the report was of the view that the plaintiff was 60 to 70 per cent productive. However, in a further report dated 21 June 2004 it was stated that the plaintiff did not progress satisfactorily with the return to work programme and experienced a number of absences due to either an increase in symptoms or other "non-related items".

100 The Star Injury Management Services report, dated 17 August 2004, indicated that the plaintiff had been offered a modified role with the first defendant which involved a lesser degree of manual handling and of heavy tools. It was noted, however, that the plaintiff was still required to do relief operation on the machines, including packing of the finished product. The report stated that this task involved bilateral fine motor capacity which was outside the plaintiff's current and future capacity and that to date the plaintiff had been required to handle heavy tools which weighed on average between 20 to 30 kilograms. It is also apparent from the report that the plaintiff had spent approximately 15 - 20 per cent of the working day operating a forklift. The report specified that the forklift was steered on the left hand side and that three lever gears were positioned on the right hand side.

101 It is not clear from the reports and no other evidence was provided in this regard, exactly why and when the plaintiff ceased his employment with the first defendant. However, it appears from the Star Injury Management Services reports that I have referred to earlier that there were still problems with the plaintiff being required to carry out tasks which he found difficult to do and that he wanted to move away from the environment where the accident had happened.

102 The Star Injury Management Services report of 29 August 2004 referred to the possibility of a work placement with Alberts Stereo and a later report, dated 23 September 2004, dealt with a potential employment position in retail audio sales with Retravision in Joondalup. The report dated 7 November 2004 stated that the plaintiff was currently seeking a work placement with Rowe and Jarman, a sports store. A further report dated 11 December 2004 listed 56 retail organisations that had been unsuccessfully approached to provide a work place for the plaintiff.

103 It appears from the Star Injury Management Services reports that the rehabilitation provider eventually managed to place the plaintiff with Giant Hyundai as a stores person at the end of January 2005. The plaintiff initially worked for three days per week and four hours per day. The report, dated 13 March 2005, indicated that the plaintiff was about to increase his working hours to eight hours per day from 14 March onwards and that there was a positive report from the host employer. The report also stated that the plaintiff reported a relative enjoyment of the workplace programme, but complained of being fatigued. However, the report dated 16 April 2005 indicated that the work place programme had been discontinued at the request of the host employer on 6 April 2005. The report provided as a reason the plaintiff's unexplained absences. However, the report also stated that the plaintiff maintained that he had advised the employer of his proposed absence due to back discomfort and an injury arising from a home exercise program using weights.

104 The Star Injury Management Services reports do not state what duties the plaintiff undertook while at Giant Hyundai. The plaintiff's only evidence in this regard was that he initially successfully managed the job which involved store keeping and placing items back onto the shelves, but that after a while "it got a bit too hard and a bit too stressful, painful".

105 The report by Star Injury Management Services, dated 19 June 2005, stated that Ms Poynton had attempted on numerous occasions to engage the plaintiff in job search activities, but that the plaintiff had not participated in this process in a diligent manner. The final rehabilitation report dated 16 August 2005, stated that the plaintiff had completed an extensive job search programme with Ms Poynton for approximately nine weeks. One of the work placements offered to the plaintiff was as a store person with Project Industries, a metal fabrication company. However, the plaintiff indicated that he did not wish to work for that organisation because he would be exposed to loud noises and sparks. Another potential employment opportunity as a stores person/delivery driver was sought with Oxford Spares in Leederville but a prerequisite was a driver's licence.

106 The first defendant also tendered by consent a report by Ms Christine Poynton, work placement and employment consultant, dated 25 July 2005. This report provided information regarding the work of a light stores worker. Some of the duties mentioned are picking and packing of goods, unloading of vehicles, opening of packages, packing boxes of goods and putting away new stock. The duties also include handling hydraulic pallet lifters and hand-trolleys as well as the operation of computers. Ms Poynton seemed to have made enquires from a number of warehouse operators with regard to the weights that need to be lifted by stores persons. She stated that in her report that the maximum lift was generally not more than 10 to 15 kilograms, as anything above that weight was to be lifted by two people or with a forklift.

107 The defendants also relied on the evidence of Professor Charles Mulvey, the managing director of Labournet. Professor Mulvey explained that Labournet operates as a consulting company which almost exclusively prepares reports for purposes of litigation regarding matters such as job availability and earnings in particular occupations. Prior to his engagement in this company, Professor Mulvey was a professor of economics at the University of Western Australia for 20 years. In his report, dated 30 August 2007, Professor Mulvey listed the duties required to be performed by a stores clerk (also known as a receiving and despatching clerk) as listed in the Australian Standard Classification of Occupations, a document published by the Australian Bureau of Statistics. The duties listed indicated that a stores clerk's role involved the maintaining of records, checking of items against those records, distributing items within the organisation and organising despatch. The description did not list the particular physical task that a stores person has to perform. Professor Mulvey's report stated that no formal qualifications were required for a stores clerk, but that computer literacy was essential. According to this report the Clerks (Customers and/or Shipping and Forwarding Agents) Award 1971 provided a basic rate of $580.40 per week for adult employees. However, on the basis of the Census Report of 2001 and the Australian Bureau of Statistics' quarterly data on average weekly earnings, Professor Mulvey estimated that the average weekly earnings of male stores clerk were $1,109 per week as at May 2007.

108 Professor Mulvey reported that employment growth for stores clerks was only slight. He said that computerisation and automation had had an impact on warehousing and storage and this had increased the demand for skilled workers, particularly those who were familiar with new technology. He also noted that smaller enterprises often required workers to be multi-skilled and to be able to engage in retail sales. His research regarding job advertisements in newspapers and on line indicated a small number of vacancies for a stores person on a regular basis. Experience was often mentioned as an essential in the advertisements. Accordingly, his view was that a new entrant might have to wait for some time before finding employment.

109 Professor Mulvey also commented on the duties required of a courier. He stated in his report that couriers usually carried small items such as envelopes, small parcels and packages. In giving evidence he agreed that very small parcels, such as envelopes, were generally carried by bicycle couriers, but said that his personal experience, from the perspective of being a recipient of couriered parcels, was that thicker envelopes or files were delivered by couriers driving a car. Professor Mulvey referred amongst the tasks listed for couriers to collecting and sorting documents, parcels and other articles and to the use of a two-way radio. He stated in his report that courier drivers in Perth were almost entirely employed on a sub-contract basis. This meant that they had to supply their own vehicle, meet the running costs of the vehicle and pay tax, insurance, company charges and superannuation out of their gross income. However, subject to the availability of one's own vehicle, there was plenty of work around for couriers. He calculated that a courier could typically rely on a net income of around $600 to $650 per week, although some courier drivers earned more than a $1,000 gross per week which translated to a net income of approximately $700 per week.

110 The plaintiff's case was that the accident had occurred either by reason of a malfunctioning of the Machine or by his inadvertent operation of the manual switch by leaning against it with a part of his body. The plaintiff did not present any evidence as to how the Machine malfunctioned other than to say that the lower platen at first moved slowly and then suddenly closed onto the upper platen with a "bang". I have previously referred to the evidence of Mr Apgar which was to the effect that computerised machinery was prone to malfunctioning and that the plaintiff's description of a "bang" indicated that the Machine had been malfunctioning on the day of the accident. Against this evidence weighs the evidence by Mr Mueller who said that he had checked the electrical wiring of the Machine after the accident and had found no faulty wiring. He had also tried to replicate a malfunctioning of the Machine in the sense of the Machine continuing to operate after the safety guards had been opened, but was unable to do so. Mr Mebberson and Mr Papamarkos, the WorkSafe inspector, also gave evidence that they tested the Machine repeatedly to see whether it would continue to operate after the safety guards had been opened, but to no avail. Although Mr Apgar said that the fact that the manner of malfunctioning cannot be replicated does not mean that it did not occur earlier, I am not persuaded that there is sufficient evidence for me to come to the conclusion that the Machine malfunctioned on the day of the accident. I would have to base such a finding merely on the plaintiff's evidence of a "bang" and on Mr Apgar's evidence that computerised machinery is prone to malfunctioning.

111 I accept in general terms the plaintiff's evidence, subject to certain minor aspects in respect of which he may have understated his involvement or overstated the difficulties experienced, which I shall refer to where they arise. As far as the closing of the platens on the day of the accident is concerned, I am also doubtful whether the plaintiff really observed a slow movement of the platen at first and then a sudden closure with a "bang". Dr Chew, a trained ergonomist, estimated that it would only have taken a second for the plaintiff to withdraw his hand. If the plaintiff had enough time to observe that the lower platen was moving slowly, he should have had enough time to withdraw his hand. In my view the plaintiff's account of the accident is more likely to be a reconstruction after the event. In my view it is more likely that the lower platen was moving slowly, but that the plaintiff did not observe this until it was too late. The very last second of the plates snapping shut, may well have appeared to the plaintiff as a "bang" at the time.

112 Accordingly, I am of the view that the second method advanced by the plaintiff is the more likely one. Both Mr Apgar and Dr Chew were of the view that it was possible that the plaintiff had inadvertently operated the manual switch by leaning against it with a part of his body and Mr Papamarkos gave evidence that he managed to get the lower platen to move by leaning with his body against the manual override switch, although Mr Hawkes observed that this was only for a very short distance.

113 Counsel for the second defendant submitted that it did not make sense that the plaintiff would not have noticed the slow movement of the lower platen if this had been activated by the manual override switch. Counsel for the second defendant relied on Dr Chew's measurement that the gap between the platens was approximately 140 millimetres and that it would have taken 14 to 15 seconds for the lower platen to close on the plaintiff's hand. However, Dr Chew was of the view that a person would not necessarily have noticed the lower platen moving upwards if he was concentrating on removing the jam or if the person's eyes were focussed away from the lower platen. Photograph 3 attached to Mr Apgar's report shows the plaintiff reaching into the Machine and looking forward at his hand. However, photograph 6 of the WorkSafe photographs shows a person looking away from the platens as he tries to reach underneath the upper platen. Although the plaintiff did not say specifically where he was looking as he was trying to clear the jam on the day of the accident, he gave evidence that he only saw the lower platen moving out of the corner of his eye. He must accordingly have been focusing on the upper platen or have his head turned upwards as he was trying to reach the jammed area. It is likely that the plaintiff adopted the latter position as he said that he had his "whole arm in there".

114 The defendants did not present any evidence (to discharge an evidentiary burden) of how the accident could have occurred in any other manner. For example, it was not put to the plaintiff that he had purposefully turned the manual override switch with his left hand while he was busy clearing the jam with his right hand. Accordingly, on the evidence before me, I have come to the conclusion that on a balance of probabilities the plaintiff inadvertently turned the manual override switch with his body or a part of his clothing and that he did not notice the lower platen moving upwards until it was too late.

115 I shall first deal with the second defendant's liability, as it is the manufacturer of the Machine. I accept the evidence of Mr Apgar in its entirety except for the proviso that I have already discussed, namely that I find his evidence on the possibility of the Machine having malfunctioned insufficient to come to such a conclusion. In one other respect I also prefer the evidence of Dr Chew and that is with regard to Mr Apgar's opinion that a reasonable precaution would have been to install a scotching device which provides a mechanical restraint to prevent the platens from moving. Dr Chew said that a scotching device would not have been practicable for this Machine because the Machine had four sliding safety guards and not two leaf-door type hinged guards. I accept Dr Chew's evidence in its entirety.

116 It is well-established law that a manufacturer who designs, manufacturers and supplies a product has a duty to potential consumers of this product to exercise reasonable care, skill and diligence in the design and manufacturing process in order to produce a product which is safe to use: Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 at [29] and Fitzpatrick v Job t/as Jobs Engineering [2007] WASCA 63 at [37] and [196]. There is no strict liability for products which are inherently dangerous and therefore no absolute duty on a manufacturer to design or manufacture a product which is free of any defects or accident proof: Suosaari v Steinhardt [1989] 2 Qd R 477 at 487 and Fitzpatrick v Job t/as Jobs Engineering (supra) at [38]. This principle has sometimes also been expressed as the notion that a manufacturer is not an insurer against injury: Suosaari v Steinhardt (supra) at 487.

117 The High Court recently emphasised again in Roads and Traffic Authority of New South Wales v Dederer (2007) 238 ALR 761 at [51] per Gummow J that the duty of care involves an obligation to exercise reasonable care to prevent a foreseeable risk of harm, but does not impose an absolute obligation to prevent harm.

118 The content of the duty of care or the standard to be applied in a particular situation needs to be assessed by applying what has become as known as the Shirt formula. This formula is based on the judgment of Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 where His Honour held at 47 - 48 as follows:

" ... [T]he tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

119 The first issue to be assessed is therefore whether the risk of injury was reasonably foreseeable to the manufacturer of a machine. As indicated in the above passage, a risk of injury may be foreseeable even if it is extremely unlikely to occur. Any risk which is not far fetched or fanciful is foreseeable. The test of foreseeability has often been identified as undemanding: Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [54] and Vairy v Wyong Shire Council (2005) 223 CLR 22 at [213]. It is also unnecessary that the defendant foresee the precise risk of injury or the manner in which the injury might occur. It is sufficient that the risk is one of a class of risk that in a general way the defendant should have foreseen: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [87]. However, care must be exercised not to assess the foreseeability of the injury with hindsight Vairy v Wyong Shire Council (supra) at [126] - [129] and Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 at [50].

120 In assessing the reasonableness of the defendant's response pursuant to the Shirt formula, a court may come to the conclusion that the defendant was required to take no steps to guard against a foreseeable risk: Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 at [36] and Mulligan v Coffs Harbour City Council (supra) at [3].

121 The second defendant clearly had a duty of care to the plaintiff to design and manufacturer the Machine in a manner which avoided foreseeable risk of injury. The design of the Machine was such that even if the safety mechanism had been put into operation by the opening of one of the safety guards the platens could still present a crushing hazard if the manual override switch was put into operation. The opening of one of the safety guards did not cause the electricity supply to the Machine to be totally interrupted. It was still possible to operate the platens by way of the manual override switch. Accordingly, it was foreseeable that an operator might place his hands between the platens to change a die or remove a jam while another operator might turn the manual override switch without realising that another operator's hands were exposed to the crushing hazard. As explained in evidence by the respective experts the Machine has retractable safety guards on either side and an operator may be accessing the space between the platens on the opposite side from that on which the console with the manual override switch is located. Further, an operator may try and move the lower platen further down by operating the manual switch with his left hand while having his right hand in the gap between the platens.

122 In my view it was also foreseeable that the manual override switch may be operated inadvertently, either by the person whose hands are exposed to the crushing hazard, or by another person working on the factory floor. The second defendant tendered a manual override switch mounted on a plastic box (Exhibit 51). There was no evidence led by the second defendant that the switch tendered was the same as that installed on the Machine. However, Dr Chew said Exhibit 51 was "similar" to the switch that he had tested on the Machine. Exhibit 51 does not require substantial force to turn it clockwise; it moves quite readily. Mr Apgar and Dr Chew were of the view that it could have been turned by a person's body part or clothing. Mr Mebberson gave evidence that the second defendant repeatedly experienced a problem with push button switches fixed onto the console to the left of the manual override switch being dislodged by factory workers bumping into them and that they therefore had been given a U-shaped metal guard. This indicates that factory workers regularly bumped inadvertently into the switches on the console. It is also foreseeable that a factory worker may inadvertently push against the manual switch with an item of equipment that he may carry.

123 I do take into account that the manual override switch has to be retained in the twisted position for the lower platen to move, but even so I am of the view that it was foreseeable that the manual override switch could have been purposefully but unthinkingly or inadvertently operated for long enough to cause a crushing hazard. As indicated earlier, a risk of injury is reasonably foreseeable if it is not far fetched or fanciful. It is also not necessary that the second defendant foresaw the exact manner in which the manual switch might be put into operation. As long as the class of risk, namely the manual override switch being operated inadvertently thereby causing a crushing hazard, was foreseeable, the risk of injury was foreseeable.

124 The next step is to weigh up the magnitude of the risk, the degree of probability of its occurrence and the costs and inconvenience of taking preventative action. In this case the magnitude of the risk was clearly very large as it must have been foreseeable to the second defendant that an operator could sustain serious injury if a body part was crushed between the platens. This is particularly so because the upper platen has a sharp knife edge around the shape of the die. A reasonable assessment of the degree of probability of a crushing injury would have been that this was not an insubstantial risk, as it was possible to operate the platens with the manual override switch even though a safety guard had been opened. As discussed earlier, this could occur by reason of a miscommunication between two operators, by an operator using the manual switch while his hand was exposed to the crushing hazard or by the inadvertent operation of the manual switch by an operator's body or clothing or an item being carried by another operator. Mr Apgar pointed out in his report that a designer of dangerous machinery should take into account that machine operators, who often have little education and do a repetitive job all day, may be more inclined to take shortcuts than other people who would first properly consider the proposed action and then rule it out as too risky. Further, Mr Apgar stated that computer operated machines are prone to unexplained errors and this is another factor which the designer of the Machine should have taken into account in assessing the likelihood of a crushing injury occurring even though the operator may have opened the safety guards. I accept that there was a low probability of the manual switch being operated inadvertently by the operator leaning against it, but it was a foreseeable risk and the costs of remedying that risk were insignificant.

125 Mr Apgar and Dr Chew were both of the view that there was no reason why a metal guard for the manual override switch could not have been installed at the time of manufacture. Dr Chew stated that a reasonable designer would have installed an U-shaped metal guard at the time of manufacture and Mr Apgar said that it was a "good idea". Mr Mebberson stated that the costs of such a guard was approximately $42.50 and that it would only have taken about 20 minutes to have fixed it in place. In the context of a machine costing in the region of $160,000, this is an insignificant cost.

126 Mr Apgar referred in his report to the Australian Standard AS1219-99 which deals with Power Presses-Safety requirements. Section 2.2 of the Standard states that the safety features to provide protection against risks to health and safety should include at least, among others, the use of interlocked safety blocks. Section 2.12.3 deals with access to hazardous areas. It states that where any part of a person's body has to be frequently introduced into that area of the press where injury might result if a machine function should start, suitable safety devices such as high-integrity interlocking guards or two handed controls should be provided. Where these devices can be bypassed and a person can still work within the hazardous area, complimentary safety devices should be provided. These included safety blocks to be inserted between the top and bottom die. Such safety blocks should be interlocked with the power supply to the press or the clutch engagement mechanism.

127 I accept that Australian Standards are a guide to, but cannot dictate the standard of reasonable care required in the circumstances of individual cases: Jones v Bartlett & Anor (2000) 176 ALR 137 at [110]. However, an Australian Standard represents the consensus of professional opinion and practical experience as to sensible safety precautions and a standard of reasonable conduct: Onetech Pty Ltd v Shaw [1999] WASCA 289 at [17] and Fitzpatrick v Job t/as Jobs Engineering (supra) at [94].

128 Dr Chew also expressed the view that the Machine should have had a metal die safety block which could have been connected to an electric interlock switch by means of a plug. This means that all electricity would have been interrupted when the metal block was in use and an operator would not have been able to inadvertently operate the manual override switch while the safety block was in place.

129 Mr Kelly also described a safety device on an Italian machine that he had bought after the accident which just required the insertion of a pin which stopped the platens from closing.

130 Although Dr Chew did not say that a metal die safety block with an electric interlock switch was essential (he only stated that it was preferable to a wooden block), safety blocks with an interlocking device are recommended by the Australian Standard on the safety of power presses. Both Mr Apgar and Dr Chew gave evidence that the use of a wooden block was historically acceptable but somewhat "rustic". The risk of using a wooden block was that it could go missing and might be considered an inconvenience by an operator. It was also only an effective safety device if the operator had received adequate training on how to use it and had been instructed to employ it at all times when working between the platens. In light of the magnitude of the potential injury and the costs of the overall Machine (about $160,000), in my view proper interlocking metal guards would have been the reasonable response by the designer to the crushing risk. Dr Chew said in evidence that the design and inclusion of metal die safety blocks at the time of manufacture would not have been prohibitive in light of the cost of the Machine.

131 Accordingly, I find that the second defendant breached its duty of care to the plaintiff by not designing the Machine with metal interlocking safety blocks.

132 If I am wrong in setting the standard of care required of the second defendant too high by expecting it to supply metal interlocking safety blocks, the second defendant also breached its duty of care by not providing a proper wooden block. Mr Apgar and Dr Chew both expressed the view that a wooden block of sufficient strength and dimensions was the absolute minimum as a safety device. I am not persuaded on the evidence that the second defendant did supply a wooden block at the time of the delivery of the Machine to the first defendant. Although Mr Mebberson said that he checked the cardboard box with accessories that was sent along with the Machine and would have noticed if it did not include a wooden block, there was no system of checking the accessories against a list. Mr Mebberson may easily have been mistaken in coming to the conclusion that all the usual items were included in the box that was sent along with the Machine and one may have been missing.

133 Mr Mebberson also said that it was only after the second defendant had engaged consultants to advise it on compliance with the European Union rating for its machines that the second defendant added a wooden block as an accessory to its thermo forming machines and that the Machine may have been the first one to be supplied with a wooden block. Mr Mebberson gave evidence that the second defendant started to comply with the European Union rating "some time in 2002". There was no evidence as to when exactly this occurred. Accordingly, I am of the view that Mr Mebberson may easily have been mistaken and that the Machine was either not the first to be delivered together with a wooden block or that a wooden block was not contained in the cardboard box with accessories.

134 This view is reinforced by the evidence of the plaintiff, Mr Argyropoulos and Mr Siriwoot who all said that a wooden block was not available to be used on the thermo forming machines prior to the plaintiff's accident. Mr Kelly, the first defendant's managing director also gave evidence that the Machine was not supplied with a wooden block and Mr Hawkes, the current production manager, was of the same view. Mr Bushe gave evidence that the second defendant purchased the blocks of wood that were supplied together with machines from the hardware store. He did not put a cost on the block of wood, but that must have been minimal in light of the cost of the Machine.

135 Accordingly, I find that the second defendant did not supply a wooden block with the Machine and that it breached its duty of care to the plaintiff in this regard.

136 The second defendant referred in its operating manual for the Machine to a wooden safety block. The warning concerning crushing hazards on p 9 of the manual stated that an operator should never allow any part of the body to enter between the faces of the press without placing a wooden safety block between the press faces. However, the operating manual did not state what type of wood the block should be made of or its dimensions.

137 The warning regarding the crushing hazard also did not prescribe a suitable method for an operator to employ when working within the gap between the platens. The warning stated that no body part should be inserted into this gap without first isolating the main electrical isolator supply. However, it was common cause between all witnesses, including Mr Mebberson, that this was an impractical instruction and that it was not feasible for an operator to switch off the main electrical supply every time a jam had to be cleared from the upper platen. Mr Mebberson gave evidence that operators might have to clear blockages a number of times per hour.

138 Mr Mebberson also acknowledged that the operating manual did not include a step by step procedure for the clearing of a jam and contained no directions regarding the use of the manual override switch. As indicated earlier, the manual was drafted by Mr Bushe who completed an electrical apprenticeship and does not appear to have any qualifications as a mechanical or design engineer. Dr Chew said that it would have taken an engineer only a couple of hours to have identified a proper procedure for clearing a jam in the Machine and for recording such a procedure in the operating manual.

139 Accordingly, the second defendant also breached its duty of care to the plaintiff by not providing in the operating manual adequate instructions on the type of wood and dimensions for the wooden block to be used, on the proper method of clearing a jam and on the use of the manual override switch.

140 The Machine contained no warning sign in a prominent position which warned the operator of the crushing hazard between the metal platens and instructed him to use the wooden safety block. Such a warning was contained in the operating manual, but the plaintiff said that although he had access to the operating manual for the Machine and had given it a quick flick-through, he had not noticed the crushing hazard warning. Mr Argyropoulos said that he had not been given a manual for the machines on which he was working. Mr Siriwoot said that he had access to the operating manual for the Machine and had read parts of it, but could not understand all of the warnings regarding crushing hazards.

141 Mr Agpar and Dr Chew were both of the view that "critical" operating instructions needed to be clearly displayed in a conspicuous area on the Machine itself and should have been supplied when the Machine was delivered. Fixing a small metal plague with such a warning on the console or another conspicuous part of the Machine would have involved minimal cost and is a step that a reasonable designer of such a machine would have taken to guard against the magnitude of the risk of a crushing injury.

142 Accordingly, I have come to the conclusion that the second defendant also breached its duty of care to the plaintiff by not affixing warning signs regarding the crushing hazard and the need to use a wooden block in a conspicuous position on the Machine.

143 It should be pointed out that the probability of the crushing risk materialising was much higher in respect of the second defendant's breaches of duty other than its failure to install a metal guard over the manual override switch. The probability of someone inadvertently pushing against the manual override switch was reasonably low. However, the probability of an operator working between the platens without a wooden block while another person unthinkingly or inadvertently twisted the manual override switch was much higher.

144 As the employer of the plaintiff the first defendant had a non-delegable duty to take reasonable care for the safety of the plaintiff at work: Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 687 - 688. The duty encompasses an obligation to take reasonable steps to provide safe plant and machinery and a safe system of work: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 at [34]. The employer's duty includes taking steps to avoid foreseeable risks of injury that arise from the employee's own inadvertence and negligence: McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 311 - 312 and Aerospace Engineering Services Pty Ltd v Ibrahim [2007] WASCA 33 at [19].

145 The standard of care to be applied by the employer in taking reasonable care for the safety of its employees is assessed by applying the Shirt formula. The failure to eliminate a risk that is reasonably foreseeable and preventable does not necessarily mean that the employer breached its duty of care. The essential question is whether the employer failed to take reasonable steps to guard against the foreseeable risk: Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317 at [98] - [99] and Aerospace Engineering Services Pty Ltd v Ibrahim (supra) at [20].

146 As indicated earlier, the risk of the plaintiff receiving a crushing injury as a result of the inadvertent operation of the manual override switch or unthinking employment of it by an operator was foreseeable. The magnitude of the risk was large and whereas the probability of the manual switch being operated inadvertently was reasonably low, the risk of the crushing injury occurring in another manner was substantial. I have provided examples of other ways in which the crushing hazard could have materialised when I discussed the second defendant's duty of care. It would therefore have been a reasonable response to the risk by the first defendant to have taken all possible steps to ensure that the plaintiff and other employees placed a wooden block between the platens whenever they were working in the gap between the platens.

147 The operating manual clearly referred to a crushing hazard and the need to place a wooden block between the platens whenever a body part was inserted in that gap. If a wooden block was not supplied by the manufacturer, as appears to have been the situation in this case, the first defendant should have made enquiries from the manufacturer as to the requisite type of wood and dimensions required and should have ensured that a suitable block of wood was available for use by operators on each machine.

148 I find that the first defendant did obtain some wooden blocks after Mr Argyropoulos' accident, but that they were inadequate in strength to serve as safety blocks. It is also uncertain whether a wooden block was available for the Machine. Mr Hawkes gave evidence that when he returned to work after Leo's accident he found that wooden blocks had been provided for the machines on the factory floor. These were pieces of wood which originally formed part of containers that had been shipped to the first defendant and were of soft pine. Whereas the dimensions (2 inches by 3 inches wide and approximately 3 feet long) may have been adequate, it is doubtful that the wood was of sufficient strength. Dr Chew tested the wooden block obtained by the first defendant after the plaintiff's accident which he said was probably made of Pinus Radiata and came to the conclusion that it was of insufficient compressive strength. Mr Mebberson was of the view that the wooden block that he thought the second defendant had supplied with the Machine and which was made of Cypress Pine (according to Mr Bushe) was of sufficient strength. Mr Mebberson's view was based on his explanation that the closing force of the platens was considerably less (only about 2 tonnes) when the platens were approximately four inches open (the thickness of the block of wood) and that the piece of Cypress Pine would have been strong enough to withstand the compressive strength of the platens at that level of closure. However, Mr Mebberson did not express the same view with regard to the piece of wood that came from the container and did not test this for its compressive strength. If the block of wood made of Pinus Radiata was not of sufficient compressive strength, it is unlikely that the soft pine obtained from containers was of adequate strength.

149 Mr Kelly's evidence in this regard is not really helpful. Although he was of the view that prior to the plaintiff's accident there were some wooden blocks on each machine, he was uncertain whether these were introduced after Leo's accident, whether there was more than one wooden block on each machine and what the dimensions were. He may well have had the thinner pieces of wood in mind which the plaintiff and Mr Siriwoot said were used to lift the plastic off the hot plate.

150 The second defendant relied heavily on the photograph taken by WorkCover (photograph 7 of Exhibit 55) which shows a thicker piece of wood standing on the floor below the console. However, it is not certain whether these photographs were taken on the day of the plaintiff's accident or thereafter, as Mr Papamarkos visited the first defendant's factory on three occasions.

151 In my view the defendants have not discharged their evidentiary onus that a block of wood of suitable strength and dimensions was available on the Machine at the time of the plaintiff's accident. Although Mr Hawkes said that a block of wood obtained from containers was provided for each machine after Leo's accident, neither the plaintiff nor Mr Argyropoulos nor Mr Siriwoot was aware of this. Mr Hawkes was the production manager and said that he had only operated the machines occasionally prior to a shift starting when the first defendant was very busy. Accordingly, he did not have intimate knowledge of exactly what blocks of wood were provided for each machine. It may well be the case that there were only some pieces of wood obtained from the containers and not one for each machine. There certainly is no evidence that there was a concerted effort by the first defendant after Mr Argyropoulos' accident to ensure that there was a suitable block of wood on each machine and to make sure that each operator of a machine and the supervisors were aware of this. In my view the steps taken by the first defendant in obtaining blocks of soft pine from containers and providing them for the machines without making sure that all operators were aware of this were not reasonable to guard against a crushing injury occurring.

152 The first defendant should also have made sure that each employee received adequate instructions and training on how to use the wooden block and to employ it on all occasions when work was to be done between the platens. Expecting employees with low levels of higher education, such as the plaintiff and factory workers generally, to make their own way through an operating manual and work out what safety measures to use was clearly not a reasonable response to the risk.

153 Further, the plaintiff gave evidence that Mr Andrew Hewlett told him that it was safe to put his hands between the platen as long as a safety guard had been opened. Mr Hewlett was not called as a witness by any of the parties. Mr Kelly gave evidence on behalf of the first defendant that Mr Hewlett had left his employ after a dispute and was not likely to be a cooperative witness. A Jones v Dunkel inference (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298) should not be made where a party does not know what a witness will say: Fabre v Arenales (1992) 27 NSWLR 437 at 449-50. However, in the absence of any contradictory evidence there is not reason not to accept the plaintiff's evidence regarding the instructions that he received from Mr Hewlett and I accept his statement in this regard.

154 In light of the fact that the Machine was supplied without any plaque in a conspicuous place warning of the crushing hazard and prescribing the use of wooden blocks, a reasonable step by the first defendant would have been to at least affix a copy of the warning contained in the operating manual to the Machine. In fact, the first defendant took that step after the plaintiff's accident. Although a remedial step taken after an accident is not evidence of the employer's negligence, it is evidence of what could reasonably have been done to eliminate the risk of injury: Davis v Langdon [1911] NSWStRp 22; (1911) 11 SR (NSW) 149 at 159.

155 I accordingly find that the first defendant breached its duty of care to the plaintiff in failing to take the following reasonable steps to guard against the crushing hazard:

(a) it should have made enquiries from the manufacturer with regard to the type of wood and dimensions for the wooden block to be used as a safety device;

(b) it should have purchased a suitably strong wooden block and ensured that this was available for the Machine;

(c) it should have given the plaintiff proper training and strict instructions on using the wooden block as a safety device whenever the plaintiff placed his hands between the platens; and

(d) it should have fixed a warning sign to the Machine warning of the crushing hazard and the need to use to a wooden block whenever a body part was inserted between the platens.

156 I am of the view that the first defendant did not have a duty of care to affix a metal guard around the manual override switch. It was not the duty of the first defendant to consider the risks posed by the Machine in the context of how the Machine could be better designed.

157 I have also not made a finding as submitted by counsel for the plaintiff that the first defendant failed to respond to the plaintiff's report that the Machine had malfunctioned on an occasion prior to the plaintiff's accident. I am not persuaded on the plaintiff's evidence that the Machine malfunctioned on an earlier occasion. Mr Siriwoot could not recall that the plaintiff had reported a malfunctioning to him. If the plaintiff had done so, it is very likely that he and Mr Siriwoot would have discussed this occurrence after the plaintiff's accident and would have reported this at least at that time to Mr Mebberson or Mr Paparmarkos. It was also unclear on the plaintiff's evidence whether he thought that he had observed the lower platen moving up or down when the Machine was malfunctioning and I prefer not to place any reliance on the plaintiff's evidence in this regard.

158 In tort the question whether the requisite causal connection exists between a particular breach of duty and particular loss or injury is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at 6 and March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515 and 522 - 523.

159 Where the breach of duty consists of an omission the plaintiff has to prove what would probably have eventuated had the defendant's negligence not occurred. The test is a subjective test assessing what the particular plaintiff would have done if the defendant had taken reasonable steps to prevent the risk which occurred: Chappel v Hart (1998) 195 CLR 232 and Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [24]. A court may infer causation by reference to objective facts and probabilities: Rosenberg v Percival (supra) at [44]. Generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that injury would have occurred even if the duty had been performed, it will be taken that the breach of duty caused or materially contributed to the injury: Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 42 1 - 422. Although the plaintiff carries the legal onus of proving causation, once the plaintiff has proven that the defendant breached a duty of care and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of cause or connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no cause or connection exists: Chappell v Hart (supra) at [34] and Fitzpatrick v Job t/as Jobs Engineering (supra) at [227].

160 It is not necessary that a defendant's negligent act or omission be the sole cause of the plaintiff's damage. Causation will be established if the relevant act or omission materially contributed to the damage: March v E & M H Stramare Pty Ltd (supra) at 514. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring: Chappel v Hart (supra) at [27].

161 The defendants did not submit that any of the potential breaches of their duty of care that the Court might find did not causally contribute to the plaintiff's injury. Counsel for each defendant was asked whether he wanted to make submissions that his client's breaches of duty were not causally related to the plaintiff's injury because the other defendant's breaches of duty broke that causal link. For example, the second defendant may have wished to argue that the failure to supply the Machine with a metal guard around the manual switch did not cause the accident, because if the first defendant had supplied a suitable wooden block and had properly trained the plaintiff to use it, the plaintiff would in all likelihood have used the wooden block and the absence of a metal guard over the manual switch would have been causally irrelevant. The first defendant may have wished to put the opposite proposition. Fleming, "The Law of Torts" 9th ed at p 22 refers to the problem of causation where there are multiple omissions by more than one party and it could be argued that one party's omission makes the omission by the other party irrelevant. The question then arises whether no defendant should be held liable or both should be held liable. The learned author refers to Fischer, "Causation in Fact in Omission Cases", Utah L.Rev. 1335 (1992) and proposes that the solution to hold both parties liable for having made a material contribution to the injury is the most apt in order to promote tort's twin policies of corrective justice and compensation.

162 In light of the fact that submissions were not made to the contrary and the view expressed by Fleming, I intend to apply the ordinary principles of causation as discussed above whereby a defendant's breach of duty is held to have had a causal effect if it has a made a material contribution to the injury. On this basis each of the breaches of duty committed by each defendant has made a material contribution to the injury. If the second defendant had provided a guard for the manual switch at the time of manufacture, the plaintiff's injury would not have occurred. If the second defendant had installed metal interlocking safety blocks, the accident would not have occurred. It may be that if the second defendant had supplied a suitable wooden block and had set out a proper procedure for clearing a jam in the operating manual, the accident would still have occurred, because the first defendant did not properly train and direct its employees to use the wooden block. However, in this event the breach of duty of care by the second defendant would still have made a material contribution to the accident. Similar considerations apply to the breaches of duty committed by the first defendant.

163 Accordingly I find that each of the breaches of duty committed by each defendant were causally related to the plaintiff's injury.

164 A person will be guilty of contributory negligence if he or she ought reasonably to have foreseen that, if he or she did not act as a reasonable and prudent person, he or she would be exposed to risk of injury: Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 at 36 - 37 and Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 310. However, in applying the standard of care to contributory negligence on the part of an employee, the Courts have taken into account a variety of factors that have a tendency to excuse the employee for inattention to his or her personal safety: Dowthwaite Holdings Pty Ltd v Saliba and Anor [2006] WASCA 72 at [21]. In Sungravure Pty Ltd v Meani (supra) at 37 Windeyer J held that it is for the tribunal of fact to consider whether:

"...inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions ... caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man."

165 In Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563 at 577, Murphy J held that an employee should not be held guilty of contributory negligence unless when he acted (or failed to act) this was done with full appreciation of the danger. Carelessness by an employee due to confusion, fatigue, natural slackening of attention or preoccupation with what he was doing, was not to be regarded as contributory negligence.

166 Counsel for each defendant argued that the plaintiff was liable for contributory negligence because he had smoked marijuana on the morning of the accident which had affected his concentration and co-ordination. It was submitted that this explained why the plaintiff did not notice the lower platen rising and did not withdraw his hand in time.

167 I am not persuaded that the defendants have proven that the plaintiff was under the influence of marijuana on the day of the accident. I accept that the plaintiff was an occasional marijuana user at the time of the accident and may have indulged in it more regularly than he admitted to. In evidence the plaintiff said that he last had a couple of pulls on a cigarette, passing it around amongst friends, at a party approximately two weeks prior to the accident. He also admitted that he had been caught by Mr Hewlett at an earlier stage using drugs. Mr Hewlett told Rod Scott, who was then "the boss" and Mr Scott gave the plaintiff counselling and a warning that he would be fired if he ever did it again at work. The plaintiff did not say when exactly this incident happened, but it must have been before Mr Kelly purchased the first defendant's business in about January 2002.

168 Counsel for each defendant submitted that the extracts from the Sir Charles Gairdner Hospital records indicated that the plaintiff was smoking two to four marijuana cigarettes per day at the time of the accident. It was further argued that the entry made in the inpatient notes on 16 June 2003 indicated that there was a dispute between the plaintiff and his parents regarding his drug use and that if the plaintiff was smoking two to four marijuana cigarettes a day he was likely to have been doing that at work and not at home.

169 I do not agree that these inferences can be drawn from the available evidence. I am reluctant to come to the conclusion that the plaintiff smoked two to four marijuana cigarettes per day at the time of the accident. Although this notation appears on the opiate withdrawal chart, it is not clear from this document who made the notation, whether this intake was at the time of the accident and whether it was confined to after working hours or not. There was no evidence by any of the plaintiff's work colleagues that the plaintiff had ever shown any signs of being under the influence of marijuana or had been seen smoking a home-made cigarette which might have contained marijuana at work. Mr Argyropoulos said that the plaintiff was generally bright and cheerful and was his usual self on the day of the accident. If the plaintiff indeed smoked two to four cigarettes per day and at work it is likely that his work colleagues would have noticed him smoking marijuana or the effect of this on the plaintiff. Dr Home conceded that the usual reaction of a regular marijuana smoker was to display a "sleepy self-absorption". There was no evidence that the plaintiff appeared to be drowsy or unfocused at work at any time. Although I accept that the plaintiff may have downplayed his intake of marijuana, there is in my view insufficient evidence to draw the inference that the plaintiff had been smoking a marijuana cigarette during the morning tea break just prior to the accident.

170 Accordingly, I am not prepared to make a finding that the plaintiff was under the influence of marijuana on the date of the accident or that this affected his reaction when he noticed the lower platen moving upwards.

171 Other allegations of contributory negligence were pleaded, but not pressed in argument. The allegation that the plaintiff failed to use an available block of wood before he put his hand between the platens does not have much force where the plaintiff said he was not aware of the availability of a safety block and had been specifically told by Mr Hewlett that he could put his hands between the platens once a safety guard was opened. There was no evidence to contradict the plaintiff's evidence that he had been given no instructions or training with regard to the use of a block of wood.

172 In apportioning responsibility between two defendants the Court has to weigh up the culpability of all the relevant parties, that is the degree of departure from the standard of care of the reasonable man which has been exhibited, as well as the role that the negligent conduct of each party played in the causation of the accident: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16 and Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494.

173 In my view the deviation by the second defendant from the standard of reasonable care is greater than that by the first defendant. The second defendant was charged with the responsibility of designing a machine which was safe to use by its operators. Dr Chew referred to the steps set out in the Australian Standard AS 4024.1:1996 which a designer of a dangerous machine should take to ensure that hazards are eliminated or dealt with as well as possible. It was the second defendant's obligation to consider whether the crushing hazard could be eliminated by design and if not, what safety measures could be put in place to guard the operator from the hazard. In this context the second defendant should have allowed for interlocking metal safety blocks or, at least, should have provided a wooden safety block of adequate strength and dimensions together with the Machine. The second defendant should also have considered the foreseeable risk that the crushing hazard might eventuate because of the inadvertent use of the manual override switch and should have guarded against this by the provision of a metal guard over the manual switch. The second defendant knew that operators of the thermo forming machines tended to bump into the switches on the console and even to dislodge them. The second defendant should also have been aware of the importance of setting out a proper procedure for the clearing of a jam in the operating manual and the provision of a warning sign which could be affixed to the outside of the Machine. Allowing an electrical engineer who had no training as a mechanical or design engineer to write the operating manual was totally unacceptable. In my view the second defendant deviated to a substantial degree from the reasonable conduct expected of a competent and careful designer.

174 The first defendant also deviated from the reasonable steps expected of an employer in that it should have checked with the second defendant whether a wooden block should have been supplied with the Machine and what its type and dimensions were meant to be. The first defendant should further have provided adequate training and strict instructions to all operators of machines to use the wooden block. Leaving the decision on what instructions to give to the managers without checking whether they had a proper safety procedure in place and were making sure that this was employed on the factory floor, was not a reasonable response by Mr Kelly. However, as indicated earlier, in my view the first defendant did not have a duty to consider the adequacy of the operation of the manual override switch, as it did not design the Machine.

175 The contribution that the second defendant's deviation from the expected standard made to the accident is in my view also larger than that of the first defendant. If the guard for the manual override switch had been affixed at the time of manufacture, the accident would not have occurred. Further, if the second defendant had supplied a wooden safety block together with the Machine, it is likely that the first defendant would have instructed its employees to use it, or at least there is the possibility that the operators of the Machine would have asked what it was for and would have used it even if they were not trained or instructed to do so. The provision of a wooden block would therefore have substantially reduced the risk of the accident occurring.

176 Taking into account all the evidence before me, I have come to the conclusion that the apportionment between the first and second defendant should be 40 per cent to 60 per cent.

177 The parties agreed the amount payable with regard to a number of the items of damages claimed by the plaintiff. The main issue in dispute was the extent to which the plaintiff retained some earning capacity.

178 I accept the opinion expressed by Ms Vandamme in her report that the plaintiff's intellectual capacity is in the average range, but that testing indicated that he is well below average in literacy and numeracy skills. Ms Vandamme's report was tendered without objection and the view expressed by Dr Home that the 1 per cent score on the spelling and arithmetic tests was so low that it appeared to be unreliable, was not put to Ms Vandamme. In any event, it appears from her report that the spelling test was done on recognition and not on writing out the words which indicates that the plaintiff's difficulty in writing was unlikely to have had an effect. I also accept Ms Vandamme's opinion that the plaintiff is not suitable for work involving oral communication skills. I rely in this regard on the view expressed by Dr Edwards-Smith that the plaintiff displayed low self-esteem, anxiety and ongoing symptoms of post-traumatic stress disorder. Dr Edwards-Smith also expressed the view that the plaintiff presented as somewhat immature and inarticulate and found it difficult to describe his emotional experiences. This was certainly also my impression of the plaintiff in the witness box. The plaintiff found it difficult to maintain eye contact, gave his answers in half sentences and did not express his experiences or feelings very well. An example of this is the plaintiff's answer when he was asked whether he would consider having Calcitonin injections in the future:

"I can't really say in the future, like, yes, seems to get bad or worse. Yes, I don't really enjoy having the needles stuck in my arm something like that, you know. Like, its pretty - yes. I just don't like needles."

179 I also accept the opinion expressed by Ms Stojanovic in her reports, particularly her conclusion that the plaintiff would have "extreme difficulty" in obtaining and maintaining open employment. She said that the likelihood of the plaintiff obtaining paid employment in the open market place was dependent upon a prospective employer being sympathetic to workers with disabilities. I take into account that Ms Stojanovic had not been actively engaged in trying to find employment for the plaintiff, but her views on the latter aspect are essentially the same as that of Dr Ker and, to a large extent, that of Dr Home. I do not accept the opinion expressed by Ms Stojanovic that the plaintiff will be unable to operate a forklift. This opinion seems to have been based on an incorrect understanding that the driver of a forklift is required to use his right hand for steering. I do, however, take into account Ms Stojanovic's concerns regarding the plaintiff's potential employment as a store person and her view that it would be difficult to find a position where all the stock to be moved was lighter than 10 kilograms, there were no ladders to be climbed and all shelves were below head height.

180 I further accept the opinion of Ms Hocking that the plaintiff should only drive a suitably modified vehicle with a left spinner knob and remote accessory switch unit. She is a qualified occupational therapist specialising in driver training and was of the view that the plaintiff's inability to maintain a functional right hand grip of the steering wheel precluded him from driving with an acceptable bilateral technique. This is clearly a matter of safety as well as comfort.

181 I further accept the evidence of Dr Ker which I understand at the end of the day to be that he thought that the plaintiff would have "extraordinary difficulty" in finding a job in the open market, but that he was nevertheless hopeful that the plaintiff would be able to find a benevolent employer and a suitable position. Dr Ker was of the view that the plaintiff could either be a courier driver or a forklift driver, but doubted whether he would be able to cope with the position of a store person, as this would entail lifting weights of some significance. I also accept Dr Ker's view that the plaintiff is likely to encounter difficulties in maintaining a position should the demands of that position change or a benevolent employer be replaced.

182 It was apparent from Dr Home's demeanour and the manner in which he expressed his views that he was not very sympathetic to the plaintiff's problems in dealing with his disability in a work situation. For example, he dismissed the suggestion that the plaintiff might experience pain while operating a forklift, because the plaintiff had told him that he had previously operated a forklift and had not indicated any difficulty. This begs the question whether the plaintiff had been asked about any pain or discomfort experienced while operating the forklift. Further when Dr Home was asked on what basis he questioned the assessment by Mr Semmens that the plaintiff should still have a further 12 attendances for treatment of his post-traumatic stress disorder, Dr Home said that the plaintiff had told him that he did not need any further psychological treatment. I find the suggestion that a patient can competently make an assessment of whether he requires further psychological treatment surprising.

183 I therefore approach Dr Home's evidence regarding the plaintiff's ability to work as a store person and to work without difficulty as a forklift driver with some caution. However, I do accept Dr Home's opinion that the plaintiff will be able to operate a forklift, as the steering is on the left-hand side and the right hand only has to operate hydraulic levers. I accept that Dr Home, from the perspective of an occupational physician, who regularly deals with persons who have to be rehabilitated into the work force, has better knowledge of these technical details then Ms Hocking who is an occupational therapist specialising in driver training. The fact that the steering on a forklift is carried out with the left hand was also brought out in the Star Injury Management Services reports.

184 I have referred earlier to the steps taken by Star Injury Management Services to rehabilitate the plaintiff into the workforce. I have set this out in some detail because it illustrates that in each job that the plaintiff undertook there were certain requirements that the plaintiff struggled to cope with. When the plaintiff worked for the first defendant there were some difficulties with the plaintiff having to handle heavy tools. The plaintiff also said in evidence that he could no longer tolerate the noise of the machinery. The reports by Star Injury Management Services further make it clear that it was virtually impossible to obtain a retail position for the plaintiff. The reports are inconclusive with regard to whether the plaintiff lost his job with Giant Hyundai because he did not advise on time of his absence for sick leave, as the plaintiff apparently denied this. However, I accept that the Star Injury Management Services reports indicate that the plaintiff was not always 100 per cent committed to the job opportunities offered to him. It is not clear on the evidence why this was the case. The plaintiff said that the work at Giant Hyundai involved putting items onto shelves and that it became "a bit too hard and a bit too stressful, painful". He also said that he was getting backaches when he drove the forklift for a long time at the first defendant's premises.

185 On the basis of all the evidence before me, I am of the view that there is a low chance that the plaintiff will find employment as a store person on an ongoing basis. It seems to me very unlikely that there will be a position which only requires the handling of items below 10 kilograms, which is the restriction on the plaintiff's capabilities suggested in the Star Injury Management Services Reports. Ms Poynton stated in her report that the maximum lift was generally not more than 10 to 15 kilograms, but this includes items above 10 kilograms which the plaintiff would have difficulty handling with his left hand and the forearm of his right hand. This difficulty would be compounded if the items had to be lifted onto a shelf above head height. The plaintiff's inability to write fast and in small letters is also likely to limit his competitiveness as an efficient employee. Ms Stojanovic pointed out that most advertisements for store persons required computer skills and Professor Mulvey emphasised that computer literacy was essential. The plaintiff may find it difficult to gain sufficient typing skills with only his left hand and his thumb, but more importantly, based on the reports by Ms Vandamme, he does not seem to have the intellectual capability to be retrained in respect of computer skills. It may be that the plaintiff will find a sympathetic employer who is prepared to require of him only those duties which he is capable of carrying out. However, there must be a low prospect that this will materialise.

186 I am of the view that there is a better chance that the plaintiff will be able to work as a forklift driver. It seems that he has been able to do so in the past when he worked for the first defendant, and Mr Kelly said that the plaintiff did not report any difficulty in doing so. The plaintiff complained about backaches arising from the constant use of his left arm, but this would apply to all forklift drivers. I have some concern that full time handling of the hydraulic levers would cause the plaintiff pain in his right hand. He did give evidence that he felt pain at wrist level when he exerted pressure on the wrist and experienced pain when the tip of the index finger was accidentally bumped. The plaintiff also said that he experienced pain when cutting up food. However, I accept that the chances of the plaintiff being able to hold down a full time job as a forklift driver are considerably better than as a store person.

ROSS -v- PROFILE PACKAGING PTY LIMITED & ANOR [2008] WADC 8 (24 January 2008)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (239 paragraphs)

ROSS -v- PROFILE PACKAGING PTY LIMITED & ANOR [2008] WADC 8 (24 January 2008)

Cases Cited (29)