Suresh v Jacon Industries Pty Ltd - [2005] NSWCA 202 - NSWCA 2005 case summary — Zoe

NSWNSWCA

Suresh v Jacon Industries Pty Ltd

[2005] NSWCA 202

Court of Appeal (NSW)|2005-05-23|Before: Mason P, Santow JA, Basten JA, Per Basten JA

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Source facts

Court

Court of Appeal (NSW)

Decision date

2005-05-23

Before

Mason P, Santow JA, Basten JA, Per Basten JA

Source

Original judgment source is linked above.

Judgment (56 paragraphs)

[1]

Background 5 The injury suffered by the deceased was sudden and catastrophic. Although no one witnessed the accident directly, the immediate cause of death is not in doubt. On the day in question, the deceased was operating a machine known as a "computerised numerical control metal turning lathe", also referred to as a Mori Seiki SL-4 lathe. It was referred to colloquially as the CNC lathe, a name which will be adopted below. 6 The CNC lathe was largely enclosed in a metal casing, but the one inch metal rod (referred to variously as "the rod", "the bar" and the "stock bar") the end of which was being threaded at the time of the accident, extended approximately 886mm beyond the end of the CNC lathe, through a circular metal grip known as a cast iron spacing bush ("the bush"). The bush was located at a point described as "the outboard end of the headstock assembly". The stock bar being threaded was clamped in the spindle of the lathe which, in accordance with a speed fixed by the operator, rotated at 600 rpm. 7 The stock bar extending beyond the outboard end of the headstock passed through a fibreglass headstock guard, which was bolted at one end to the casing of the headstock and fully enclosed the outboard end of the headstock. The guard had a circular hole which allowed the stock bar being machined to pass through the guard into the headstock and thus through the machine to the operating area where the die which was used to thread the end of the rod was located. The die was held in a unit called the "tool post". 8 If machining was required towards the middle of a long rod, there was a further section of the lathe known as the "tail stock". Like the headstock, a function of the tailstock was to hold the rod steady so that, inside the spindle, it spun truly along its centreline. The tailstock was not being used in the present case, because the threading was being undertaken at the end of the rod. 9 The importance of holding the rod firmly so that it spun along its centreline was demonstrated in unequivocal fashion in the present case. Where one end of the rod was unsupported, and was spinning at high speed, any deviation from the centreline would have a tendency to cause the unsupported end to bend: once it started to bend, the tendency would be rapidly accentuated, so that the unsupported end would bend until it revolved like a propeller blade. That is precisely what happened in the present case. After the accident, the rod, extending from the headstock, was bent at almost 90° to the centreline of rotation. 10 Once the rod started to move away from the centreline, it would quickly come into contact with the fibreglass headstock guard. That happened in the present case, the guard being knocked off the headstock and thrown several metres across the factory floor. It seems likely that it was the noise caused by this event which induced the deceased to move from a position near the operating tool post at the centre of the lathe towards the end of the lathe level with the headstock. Whether a thin metal rod rotating at 600 rpm is visible to the naked eye does not appear from the evidence: however, one may infer that it was not visible, or at least was not seen by the deceased, who was killed instantly when the rotating bar hit him on the head. 11 At some point in time, the force of the spinning rod caused the lathe to move several centimetres across the concrete floor of the factory. A photograph tendered at trial showed the extent to which the footing had apparently moved, as a result of the force being exerted by the spinning rod. However, precisely when that movement occurred is not clear. The rod continued to spin for some short time after the accident. 12 The only other person working in the factory at the time was another machinist, Guan Min Chen. In a record of interview undertaken by an inspector from the Workcover Authority of New South Wales, Mr Chen described his recollection of the accident. At the time, approximately 2pm on 30 December 1997, he was working with a power hacksaw. He described the incident as follows: "When I was working on the saw, I heard a loud noise bang. The noise came from behind me. I was feeling that the noise came from the machine behind me. I saw this CNC machine trembling. I didn't see anybody there. And I began to rush that machine passing a boring machine and without delay I switch off the emergency power. Then I turn my head and I saw him lying on the ground." 13 In relation to the cause of the accident, the Appellant tendered before the trial judge copies of the various statements and reports obtained in the cause of the investigation, together with a report by Mr H.L. Burn of H. L. Burn and Associates, consulting engineers, obtained by the solicitors for the Appellant. The only witnesses called to give evidence at the trial were Mr Burn and the senior inspector from the Workcover Authority, Mr Terry Fouques. Amongst the statements included in the evidence were records of interviews with Eric Martin Rutten, the managing director at the time of the Respondent company and Michael Varga, who was at that time the machine shop supervisor. Aspects of the evidence of each of these persons was relevant to the question of liability.

[2]

The liability issue identified 14 The first question to consider in addressing the issue of liability is the cause of the steel stock bar spinning out of its centreline, which in turn caused it to bend and thus achieve its fatal effect. It was common ground that there were two factors at work, which in combination had the relevant effect and may, individually, each have been sufficient to cause the effect. 15 The first factor was the length of the stock bar. In circumstances which will be referred to below, at the time of the accident the deceased was machining the ninth stock bar in a series. In fact, the job required him to machine only eight rods. By the time he came to the ninth, he had in fact successfully machined eight rods, each of a length of 1925 mm, or just under two metres. However, as was apparent from the photographs taken of the shelves on which the finished rods were placed, one was concealed behind a larger metal rod or cylinder and thus obscured. It seems likely that, if he had counted the visible rods, the deceased may have thought he had only done seven. Alternatively, he may have seen the ninth rod untouched and assumed that he was required to machine that as well to make up the requisite number. As he was described as trained, experienced and careful, it is likely that his mistake resulted from a combination of the two possible explanations. In any event, the ninth rod was 2350mm long, or almost exactly 450mm longer than the other eight bars. The result was that it extended almost twice as far beyond the headstock as the other bars. The greater unsupported length would, as a matter of probability, have resulted in deflection from the centreline, when spinning at 600 rpm, so as to cause the bar to bend. 16 The second cause of the bending was that the bush, as fitted to the headstock, did not provide a tight grip on the steel rod. According to Mr Fouques, the rod was approximately 3mm thinner than the hole in the bush and, in addition, the bush was worn, giving an overall "clearance" of 6.13mm. Mr Fouques further noted that the part of the rod which passed through the bush had been taped with masking tape to decrease the clearance. However, the softness of the masking tape would undoubtedly allowed some level of vibration for a rod spinning at 600 rpm. In his report, Mr Burn demonstrated that, spinning at that speed, it was reasonable to assume that "a shaft about 800mm long would fail if subjected to any minor form of vibration". He further concluded that "the wrapping of the loose running shaft is extremely dangerous and was the source of the initiating vibration leading to the accident". 17 Mr Burn was cross-examined in relation to these observations and gave the following evidence. "Q. Insofar as the root cause of this accident is concerned, Mr Burn, can I take it that we are all in agreement that had there been a bush machined to the diameter of the bar in use by Mr Suresh when he was turning even this extended rod the accident would not have occurred? A. I think it is more than likely it would not have occurred but I'm not satisfied it would not have occurred. Q. Had the bar been the same length as the other bars that have been turned and in use or been turned in the bush which was in use, the accident would not have occurred, would it? A. As I understand, some six bars had already been turned without the bush, and the accident hadn't happened on those six bars. Q. Indeed, from your analysis of physics, in the course of preparing your reports, Mr Burn, you concluded, didn't you, that had the bar been cut to the same length as the other bars which had been turned, the accident would not have occurred? A. Probably would not have occurred, no.

[8]

Evidence of Respondent's officers 22 With the knowledge of the accident itself and the evidence of Mr Burn, it is possible to understand, with hindsight, the risk involved in the procedure adopted with the CNC lathe on the day in question. 23 In relation to the extrusion of the rod beyond the headstock, the statements of both the supervisor, Mr Varga, and the managing director, Mr Rutten, contain matters relied on by the Appellant. As might be expected, their statements were equivocal or ambiguous in some respects and, as neither gave oral testimony at the trial, difficulties remain in assessing their evidence. 24 The more specific evidence was given by Mr Varga. In relation to the hazard involved in the present instance, he answered a number of questions from the Workcover investigator. "Q27 How often does Jacon Industries Pty Ltd receive jobs of making tie rods of excessive length or over two metres? A27 Nothing above two metres. (Michael [Varga] pointed out that the order on Drawing no. 1 was for 1925mm. Q28 Are you aware that a material protruding from the end of the spindle past the guard of the CNC metal-turning lathe is a hazard? A28 Yes, it is a hazard. I've learned from the time I've been introduced on working on lathes that you do not have bars protruding past the end of the spindle or the guard without a bar feeder or a bar support. Q29 What equipment on site does Jacon Industries Pty Ltd have for guarding or supporting the protruding length at the end of the spindle past the guard of the CNC metal-turning lathe? A29 We don't have one for the CNC but we have one for the turret lathe. For the CNC, we normally bush the end of the spindle to suit the particular bar. Q30 What system of work was in place for the safe operation of the CNC metal-turning lathe? A30 Safety was always my concern. But I felt that Suresh was competent enough as a matured tradesman. So, for me, to watch over his shoulders I didn't think was necessary as they knew the safety aspect and the demands towards safety. … Q31 Is there anything you wish to add regarding this matter? A31 In my opinion, although he had taped around the bar to make up for the slack in the bush; which was still a bad practice but it would still be safe because it was only a minute difference between the bar and the bore of the bush. It would have been safe if it weren't for the extra length of the bar which was protruding." 25 The first inference which can be drawn from this record of interview, with some confidence, is that Mr Varga was in little doubt that an unsupported rod of any length protruding beyond the end of the spindle was a hazard. It may also be inferred that, in relation to the CNC lathe particularly, he would have treated anything beyond two metres as hazardous. Further, as the job in question was within about 4% of the limit, that evidence invites a question as to the nature of any instruction given to the deceased with respect to the particular job. 26 The instruction apparently included a "written job list" as well as "the necessary drawings of the job". The job list had been lost after the incident, but there was no suggestion that it contained any detailed instructions. The drawing was in evidence and simply identified the size of steel rod, the length to which it should be cut and the detail of the threading. As to the instructions given to the deceased regarding the particular job, Mr Varga stated: "The only instruction that I've given him, first of all, I've given him an option to do one end of the bar on the turret lathe with a [die] head with chasers; the other end, I'm not sure whether we'll have the chasers or not. So, you can do that on the CNC's if we don't have any chasers. And if he does happen to use the CNC, I specifically ask him to make sure to put a bush in the speck of the spindle and to be careful. And I always tell him to be careful. It's just something that I've been practising for the last 20 years. The reason for the bush was to support the bar to be concentric and it's important you bush it because the spindle is larger than the bar and will obviously wobble. Also, Suresh had the bars cut to length other than the one that he had the accident with prior to the 24 December. And I can tell from the finished of the both ends were done on the CNC and that he didn't use the turret lathe." 27 It was apparently common ground that the "chasers" were not available at the factory and it appears to have been accepted that, accordingly, the turret lathe was not a realistic option. In relation to the CNC lathe the instruction appears to have been limited to putting a bush in the speck of the spindle and to be careful. There is nothing specific in this direction about the need for particular care with the fitting of the bush, nor was any specific concern raised about the length of the extruding rod. Indeed the suggestion was that Mr Varga had given similar general instructions "to be careful" at all times over some 20 years. Even allowing for an exaggerative flourish, that would have covered the 12 months during which the deceased had worked at the factory. 28 Mr Rutten was also asked questions in relation to the circumstances of the accident by the Workcover Authority inspector. His evidence excluded the possibility that the turret lathe could have been used for this job. "Q32 Why was the turret lathe not used for the manufacture of the tie rods in question? A32 It is a new project and it was not a large quantity and therefore we did not have chasers for the die head on the turret lathe. If this particular job is an on-going repeatable job then we would purchase the relevant chasers for the die heads if they are available, since it is more difficult to purchase chasers for these die heads." 29 In relation to the CNC lathe, he was asked a specific question in relation to the deceased. "Q28 What training and instruction had the company provided to Purushotham Suresh in the safe operation of the CNC Metal Turning Lathe? A28 I would say that from a company's point of view we would have kept a close watch on Suresh's performance, ability and carefulness. So that [we] were confident that he can use the machine safely."

[22]

He was then asked a number of questions in an attempt to establish such a comparison would have been available. The trial judge then noted: "His [Mr Burn's] attention having been drawn later to photograph 16 in colour, he agreed that there were other rods of different diameters and length (to permit comparison)." 38 With respect, this conclusion does not accurately reflect Mr Burn's position: in fact the evidence went nowhere. Mr Burn did not accept that the ninth rod was taken from a shelf on which there were other rods, forming part of the same job. Nor was it a fact within his knowledge. All that was before the Court was the evidence as to the layout of the factory, to be derived from the photographs. An inference may have been open that rods waiting to be machined were somewhere on the racks used to hold the machined rods. However, no-one knows if that is correct, because there was no evidence of any rods waiting to be machined at the time of the accident: the last rod was in the lathe. Since, as counsel for the Respondent company pressed upon the Court, this rod was not part of the job lot, it is possible that it was not near the other rods which were to be (and had been) machined. Mr Burn resisted, in cross-examination, drawing any inference as to the comparison which might have been made by eye, because it required assumptions about which he knew nothing. Although the trial judge appears to have been critical of him in this (and other) respects, his caution in this instance appears to have been entirely justifiable. The assumption in the original question was that the rods had been "lying on the same shelf": that assumption was not self-evident, and was not proved, nor in the circumstances was it capable of proof. 39 It is, indeed, pure speculation that the deceased did not realise that the last rod was longer than the others. On the Respondent's approach (as revealed by the cross-examination of Mr Burn) the opposite conclusion is the more likely. Thinking he needed to machine an additional rod to complete the job, he may well have realised that the last rod was longer and intended to cut it to size before machining the second end. If the fact that it was longer would indeed have been "blindingly obvious" to him, that is the likely inference. Further, the fact, assumed by the employer, that the deceased was a skilled first class machinist, whom they intended to promote to leading hand, supports the inference because he would have known that it would be necessary to cut the rod at some stage. However, because his employer accepted that he was not only competent, but careful, it also seems likely that he did not appreciate the risks inherent in machining a rod of that length in the CNC lathe. 40 This conclusion may be reached without reference to the evidence of Mr Burn, of whom the trial judge was critical, and about whose evidence further comment will be required. For present purposes it is sufficient to say that I would draw the following inferences, on the balance of probabilities:

[44]

We were told, and this was common ground, that this remark went to weight rather than admissibility. However, because the trial judge did not identify any specific item of evidence which he expressly accepted, it is difficult to know what credence was given to the evidence of Mr Burn, even when reproduced in the judgment. In parts, his Honour's summary of Mr Burn's evidence was directed to the credibility conclusion, ultimately expressed, namely that one specific aspect "confirms my assessment of Mr Burn as an advocate as distinct from an independent expert". 53 The difficulties with Mr Burn's evidence are heightened by the fact that all of his oral testimony appears to have been taken on the voir dire. Although our attention was not directed to any express ruling in relation to admissibility, we were advised that both of the reports and the oral testimony were admitted as evidence on the trial. Nevertheless, to the extent that the trial judge extracted aspects of his evidence, which did not appear to go to credibility, and without any criticism of the content, it may be inferred that his Honour accepted so much of the reports and testimony as were thus recorded. 54 In addition to setting out parts of the evidence of Mr Fouques and Mr Burn, the trial judge also summarised the record of interview of Mr Varga and gave very brief reference to the interview with Mr Rutten, the managing director. 55 His Honour's specific findings are limited to the response to particulars of negligence. In relation to matters of present relevance, those particulars and the relevant findings may be identified as follows: " (a) failing to ensure that the deceased was properly and adequately qualified to work the subject lathe; As to paragraph (a), the evidence is all one way that the deceased was eminently qualified for the work in question. (b) failing to provide any or any adequate or timely supervision of the deceased in his work at the lathe; As to (b), again the evidence is all one way that supervision of the deceased for the task in question was not required. (c) failing to leave any or any adequate instructions for the deceased; As to (c), there is nothing to suggest the failure to instruct. (d) [both particular (d) and the trial judge's response are set out above at [50].] (e) causing or allowing a practice of working to occur whereby bars being worked with the said lathe were wrapped with tape to increase diameter, rather than providing a bush of smaller diameter to firmly hold a job being worked; (f) failing to warn the deceased of the risks of jobs deforming under high revolution due to movement created by taping of bars being worked. As to (e), there is no evidence to support the statement that there was a practice of wrapping the work piece with tape. All that we know is that this was something that the deceased did on this particular occasion. The same comment applies in respect of particular (f). … (i) causing or allowing the deceased to work a bar of excessive length using the said lathe under high speed in circumstances where such bar was likely to and did deform; (j) causing or allowing the deceased to use the said lathe to work a bar that was too long and that was taped to increase its diameter to allow fixation to the lathe, which circumstances were likely to and did give rise to deformation of the job and injury to the deceased. As to (i), it was the function of the deceased to cut the obviously too long bar before placing it in the machine. As to (j), it was a matter for the experienced operator to cut the bar to an appropriate length and to provide a bush. (k) failing to devise and maintain a safe and proper system of working; (l) exposing the deceased to risk of injury that could reasonably have been avoided; Particular (k) is too general, as is particular (l)." 56 After referring to a number of authorities which supported the proposition that the duty to provide a safe system of work will not extend to "isolated operations of no complexity outside the normal system or simple uncomplicated operations within it" his Honour concluded that the present was "a simple operation well within the competence of the deceased". He continued: "The accident was caused by reason of the excessive length of the bar stock associated with the failure to machine a bush of the appropriate diameter."

[45]

Conclusions on appeal 57 His Honour's specific findings, noted above, may properly be accepted and, indeed, were not directly challenged in this Court. In other words, there is no doubt that the deceased was well able to machine a bush to an appropriate size and cut the bar stock to an appropriate length. It was also accepted that the machining of the relevant bar stock was a relatively uncomplicated activity for a machinist of the training and experience of the deceased. Finally, it was accepted that the deceased was a person with above-average skills and competence in the relevant area and was reasonably treated by the employer as someone well able to undertake tasks of the kind in question without supervision. However, none of these conclusions addresses the real question in issue. 58 The critical question depends on recognition that the use of the lathe at 600rpm to machine a rod which did not fit as snugly as it might have within the bush and which extended for some 880mm, unsupported, beyond the headstock, was an essentially hazardous task. Further, it was known to be hazardous to the shop supervisor, Mr Varga. The ultimate question is whether the employer failed to take reasonable care in not ensuring that the deceased was aware of the nature of the hazard and the means of reducing it. The fact that the means were all within his competence to effect, does not mean that he appreciated the need to adopt them. 59 There was no finding by the trial judge that the deceased was or should have been aware of the relevant hazards. Nor was there any evidence as to the nature of the training or expectations of machinists in that regard. Accordingly, once the hazard was admitted by Mr Varga, it was a matter for the Respondent company to establish that it took all reasonable steps to draw the nature of the hazard to the deceased's attention and ensure that he understood the means of reducing such hazards to a reasonable level. The company called no evidence at all. The proper inference from the evidence of Mr Rutten and Mr Varga, outlined above at [31] and [24] respectively, is that the deceased was given no warning at all in this regard. 60 No doubt partly in response to the allegation that the deceased was not qualified to work the CNC lathe or work it without supervision, supported in part by Mr Burn's reports, which the trial judge clearly rejected, the Respondent company relied upon the statements of Mr Rutten and Mr Varga as to the competence, experience and care which the employer was satisfied the deceased exhibited. That evidence was, however, potentially double-edged for the employer. Once it was accepted that the deceased did have such qualities, and if it be accepted (as I would accept) that the deceased nevertheless proceeded to use the machine with a less than ideal bush, with too long an extrusion of bar stock and at the speed established, there is an inference that he simply had no understanding of the nature of the hazard he faced. That conclusion is given some further, if limited, support by the fact that when something drew his attention to the area of the headstock, he clearly had no immediate apprehension as to what might be occurring. 61 In these circumstances, I would accept the Appellant's assertion that the employer unreasonably failed to give the deceased sufficient instruction to allow him to appreciate the extent and nature of the hazards involved in machining bar stock with a significant degree of extrusion from the headstock and the means of avoiding them. As a result, the employer failed to take reasonable steps to provide a safe system of work. This conclusion requires that the judgment below be set aside and there be a finding of liability on the part of the employer.

[46]

Contributory negligence 62 In this circumstance, it is necessary to consider whether the carelessness of the deceased contributed in a relevant respect to the accident. In the last sentence of his judgment, the trial judge stated: "If I am wrong as to my conclusion on primary negligence, I would have assessed the contributory negligence at 50%." 63 The Appellant was critical of this finding. On the one hand, it appears to be a figure plucked out of the air, without supporting reasoning; on the other, one cannot infer the reasoning from what has gone before because one does not know on what basis the assumption of liability of the employer is assumed. These criticisms have substance. 64 The circumstances in which this Court can properly intervene in relation to a finding of contributory negligence were considered in some detail by McColl JA in Ghunaim v Bart [2004] NSWCA 28 at [42]-[54]. That analysis is respectfully adopted, with appropriate regard to the circumstances of the case. As will be noted below, there are two factors which must have been implicit in the trial judge's finding with respect to contributory negligence. The first was the hazardous method of machining the longer rod and the second the failure to use the emergency stop button. 65 In relation to the first factor, the contribution of an employee to his or her injury may vary from a deliberate refusal to follow instructions, through adoption of a practice which was obviously risky, to inadvertence, inattention or misjudgement. However, where a competent and generally careful employee has adopted a practice which involved a hazard not shown to be within his training or experience and about which it was the employer's duty to warn, there will need to be additional features to justify a finding of a significant level of contributory negligence. 66 What happened in the present case was that a foreseeable risk that the rod would deform in fact eventuated. That fact did not by itself cause the accident: the additional necessary step was that the deceased moved into the danger zone and was hit by the spinning rod, acting somewhat like a propeller on an aircraft. However, once it is accepted that the hazard about which the employer should have given a warning was precisely that which the employee did not anticipate, it is not logical to expect the employee to anticipate and avoid the very danger which has been created. Something else must be added to the equation in order to say that the deceased failed to take reasonable care for his own safety. 67 Another possibility is that, even if he were not aware of the hazards attaching to the bush and the over lengthy bar stock, he should still have been expected routinely to take precautions which he did not take, by cutting the bar and machining a new bush. However, to make that judgment requires a finding that a trained machinist would have some level of understanding of the dangers involved. That evidence could undoubtedly have been called by the company, but it did not do so. Mr Fouques, the Workcover inspector, was asked in cross-examination: "Q. The training that his man would have had, would that have involved knowledge of the vibration that clearly occurred in this case with part of the bar sticking out? A. I have no idea. Q. What I want to suggest is that there is nothing in his training, or his academic record that you've seen that would suggest a knowledge or understanding of what happens when a bar such as this is extended, speed builds up and the vibration results in deformity? A. You lost me with your question. If we're talking about how much bar you would hang out from the back of a headstock. When you're training as an apprenticeship you would be told you wouldn't want that to be excessive. His actual - the nuts and bolts of every nitty gritty piece of his training over a period of time, no, I would not have access to that."