Wegrzyn v Carlton and United Breweries

There was a control panel which contained a number of buttons which regulated the operation of the various components in the machine. There were emergency stop buttons which would shut down the entire operation of the machine. Relevantly there was a long piece of metal with a sharp serrated edge which constituted a cutting knife attached to a cylinder which revolved when the machine was in operation. That knife cut the plastic from a roll at appropriate intervals. Access to the knife could be gained by opening a perspex door; opening the door activated an emergency switch which shut down the operation.

Occasionally a bottle would break in the wrapping process causing beer and glass to spill into the machine. On other occasions the plastic could jam the operation of the machine, particularly by adhering to the cutting edge of the knife. When any such incident occurred the problem could be addressed by opening the door thereby gaining access to the area of the machine involved. Where glass and beer had been spilt, or where there was some minor problem with the plastic, the area could be cleaned by using air passing through an air hose. The evidence strongly suggests that the operator of the machine would open the perspex door thereby stopping the machine and use the air hose to clean the area or to dry out the plastic passing over the rollers.

The task of freeing the cutting edge of the knife from the plastic was often a more difficult task. I am satisfied on the evidence that the general instruction given by the defendant to operators of the machine was that in such circumstances fitters were to be called using the microphone paging system. The fitter could then, if necessary, remove the cutting edge of the knife by undoing various screws. The fitter could also, if necessary, override the cutout switch activated on the opening of the perspex door. In order to override the cutout a key would have to be inserted into a switch on the control panel and turned. Thereafter another button (called a jog switch) could be pressed causing the cylinder to which the knife was attached to revolve. Once pressure was removed from the jog switch the cylinder would cease rotating. By depressing the jog switch momentarily it would be possible to cause the cylinder to rotate through only about 900. Such a procedure might be followed in order to get the cutting blade into a position for easier removal of the offending plastic.

By December 1992 the plaintiff was a very experienced and conscientious operator of the machine. Undoubtedly he had on numerous occasions cleaned the machine with the air hose, and attended to minor blockages. He had also seen the fitters on numerous occasions use the key and jog switch in order to facilitate the removal of a blockage. The evidence suggests that he may have used the jog switch on occasions prior to 10 December 1992 but it is not clear on how many occasions or in what circumstances he did so.

I am satisfied that there was a general rule in the interests of safety that the key which had to be used in order to override the cutout and safety switches should be kept with the fitters. But it is also clear that from time to time that rule was breached and the key was left on or near the control panel of the machine. The evidence suggests that particularly in hot, humid weather the plastic regularly jammed around the knife. On occasions when there were reasonably frequent blockages the probability is that the key was left on or near the control panel. That is in all probability what happened on the day in question. On that day the evidence suggests that there had been a number of blockages some of which probably called for the presence of the fitters.

Late in the afternoon of 10 December 1992 whilst the plaintiff was operating the machine plastic jammed around the knife. I find that he then called for the fitters over the paging microphone but they did not come for some minutes thereafter. In consequence the plaintiff decided to take what he considered to be the necessary steps to clear the blockage. He opened the perspex door and then used the key which had been left on or near the control panel to turn on the override mechanism. Then he pushed the jog switch with one hand with a view to turning the knife blade through about 900. I find that he put his left hand in through the open door and into the vicinity of the knife whilst the jog switch was still depressed and the cylinder and knife revolving. He received a severe cut to his left hand.

In particular I am satisfied that the statement given by the plaintiff to Muntz on 16 December 1992 (exhibit 21) and verified to Kyling on 11 January 1993 (exhibit 34) contains a true and accurate account of how the incident occurred; relevantly in that statement the plaintiff said:

"I stopped the machine, opened the door, cut the plastic, then took the key from the control panel and unlocked the jog switch. Taking hold of the plastic with one hand I slowly pressed the jog switch and began to remove the plastic from the knife. There was one small piece of plastic behind the knife. I took hold of it and touched the jog switch. As I did so the knife caught my hand."

In the statement of claim it was alleged that the plaintiff "inadvertently activated the knife" but the evidence establishes that it was a deliberate and intentional act on the part of the plaintiff to activate the knife. Clearly it was a very dangerous thing for the plaintiff to have his hand near the knife at the time he activated the jog switch. In the circumstances it could not be said that what the plaintiff did was inadvertent or a misjudgment because of familiarity with the machine. It must have been obvious to the plaintiff that when overriding the safety cutout switch he had to act with extreme care. It was not even a matter of the plaintiff putting in his left hand at about the same time as he was releasing pressure on the jog switch. The account which I have accepted clearly indicates that his hand was in the vicinity of the knife when he deliberately activated the switch.

The cylinder probably turned through a greater arc than the plaintiff intended (or indeed kept revolving) but that was because of the length of time his right hand was in contact with the jog button, not because of any defect in the machine.

On the evidence this was the first incident of its kind with the machine. Very shortly after the incident the override switching mechanism was modified so that in order to operate the jog switch 2 buttons some distance apart had to be depressed simultaneously; that meant that 2 hands were needed to operate the jog and in consequence a hand could not be inside the door whilst the jog mechanism was depressed.

It is in those circumstances that the issue of liability has to be determined.

Counsel for the defendant, relying heavily on the reasoning in McLean's Roylen Cruises Pty Ltd v McEwan [1954] HCA 43; (1984) 58 ALJR 423; 54 ALR 3, submitted that the court should find that the plaintiff's negligence was the sole cause of the accident. It is true that there were numerous safety systems attached to the machine and that they could only be deliberately overridden. Certainly the plaintiff's conduct was extremely negligent, but I have come to the conclusion that the defendant was also negligent. The negligence of the defendant was in permitting the overriding key to be available to a person such as the plaintiff. The system was that the key should be kept by the fitters away from the machine so that only a qualified mechanic or fitter could override the stop buttons. Leaving the override key with the machine gave an experienced operator the opportunity of carrying out a task beyond his capability. On the whole of the evidence I am satisfied that the defendant knew that operators did clean out relatively simple jams and the probability is that from time to time, if the key was available, operators had used the override jog switch to assist in that process. That is what happened on this occasion. I find that the defendant was negligent in allowing the key to remain in the vicinity of the machine; in the circumstances that constituted an unsafe system of work on the day in question.

On the issue of contributory negligence counsel for the defendant referred to Podrebersek v Australian Iron Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; 59 ALR 529 and counsel for the plaintiff referred to a passage from the judgment of Mason J. in Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563 at 570. It is clear that in determining the extent of contributory negligence the court must have regard to foreseeability and must make an apportionment as between plaintiff and defendant on the basis of a comparison both of culpability of each party and of the relevant importance of the acts of each of the party's in causing the injury.

As I have already found there were general instructions, of which the plaintiff was aware, that fitters should be summoned by means of the paging system to attend to blockages of the type which occurred on the day in question, and the override key should not be left on the control panel. I am satisfied that the plaintiff did in fact call for the fitters when the blockage occurred. Because there was some delay in them arriving he took advantage of the fact that the overriding key was on or near the control panel and decided to carry out the task himself. He did so in a way which was foreseeably very dangerous. The evidence does not establish that the defendant acquiesced in operators acting in the way in which the plaintiff did on this occasion; it was not a specific course of conduct endorsed by the employer.

It follows that the plaintiff's negligence was as great as that of the defendant and in the circumstances I apportion negligence as to 50% against the plaintiff and 50% against the defendant.

I turn now to the question of quantum. The plaintiff was age 38 when injured and is now age 43. He has not worked since December 1992. Counsel for the plaintiff submitted that damages should be assessed on the basis that the plaintiff was totally and permanently incapacitated for work as a result of the injury and that damages should include $148,568.00 for past economic loss (including interest) and future economic loss in the sum of $329,038.00.

The plaintiff was given first aid immediately after the injury and conveyed by ambulance to the Royal Brisbane Hospital. He was an in-patient there for some time. No report from the hospital was tendered in evidence and the court can only rely on the plaintiff's account of the treatment he received. There were probably 2 operations performed, the second being a skin graft. The latter operation probably involved taking skin from the upper left arm and grafting it on his thenar eminence. It would appear that the surgery was probably carried out by Dr Bendeich but there was no evidence led from that doctor. In his evidence the plaintiff refers to seeing Dr Bendeich privately after his discharge from hospital, and also to receiving physiotherapy upon referral by Dr Bendeich. Again none of that treatment was the subject of evidence from the practitioners involved.

The plaintiff relied on 2 medical reports from his general practitioner, Dr Patrick, and 3 reports from Dr J.H. Morris, an orthopaedic surgeon.

In his report of 27 September 1993 Dr Patrick states that the plaintiff attended at his rooms on 29 January 1993 with an injury to his left hand. Dr Patrick records that the plaintiff "complained that he had parathesia in the graft of his left thenar eminence and that he had substantially reduced movement in some of the fingers of his left hand". On that day the doctor's examination established diminished sensation in the area of the skin graft.

The first report from Dr Morris was dated 16 December 1993 and refers to an examination in that month. That report contains some detail of the initial injury and its initial treatment at the hospital, but it is not clear, even from the oral evidence of Dr Morris, what was the source of that information. That report details the examination made by Dr Morris and his opinion as follows:

"He had a skin graft over the thenar eminence. The thumb itself appeared normal. The skin graft he said was sensitive. If I touched his little or ring fingers, he appeared to be in a great deal of pain. Both the little and ring fingers were tightly flexed and held into his palm. The middle finger was also tightly flexed but I was able to straighten it out, although it appeared to cause him pain. I was not able to straighten either the ring or little fingers. He was not able to feel on the dorsum of his ring finger. He was able to feel the pulp of his ring and little fingers. When the wrist was flexed, he was able to extend his fingers more. With the wrist extended, the fracture became worse. He has a 300 fixed flexion of the DIP joint of the ring finger and 900 fixed flexion of the PIP joint of the ring finger. He also has a 300 fixed flexion of the DIP joint of the little finger and 900 fixed flexion of the PIP joint of the little finger also. Apart from the skin graft, I could see very little abnormality to his thumb. The middle finger was also held but I was able to straighten that against pressure.

Mr Josef Wegrzyn suffered injuries when he cut his ring and little fingers. He had a cut on the dorsum of the DIP joint on the [ring] finger. It was difficult to see if he had a cut on the flexor aspect of his ring and little fingers as he appeared very sensitive in this area and would not allow me to touch them. His little and ring fingers have now contracted. He has a 100% loss of function to his little and ring fingers. This translates to a 15% disability to his left hand. The thumb would have a minor disability of about 3% to his hand and his middle finger about the same, giving him an overall percentage disability to the hand of 20%."

His next report is dated 29 June 1994 and was made to the Workers' Compensation Board. In it he noted that the plaintiff had "ended up with a hand which is not particularly useful for him". He recorded, as was the evidence of the plaintiff in court, that the plaintiff was normally right handed. The opinion he expressed in that report included the following passage:

"He is now suffering a continual contraction of the fingers of his hand. I would venture to think that he holds his hands flexed all the time and does not try to use his fingers. This would explain the progression that he is experiencing. The little finger and ring fingers have virtually 100% loss of function and the middle finger is not much use. The combination of the ankylosis of these fingers really give him a 30% disability to his left hand, which translates to a 27% disability to his left upper extremity."

Under cross-examination Dr Morris agreed that by the statement just quoted he meant that the plaintiff was consciously holding his hand in that position. The doctor conceded that "possibly" the plaintiff could be doing that deliberately. Further, the doctor made it clear that the plaintiff was holding his middle finger in that flexed position though it was not injured. There was no orthopaedic reason for holding the fingers in the position which the plaintiff does. He was asked, "Is it true to say that you can't relate the contractures that he now suffers with the initial injury?", and he replied:

"That's correct. The worst you would expect him to have would be stiffening of the distal joints, but you wouldn't expect them to be contracted. . . . Where he cut his fingers, you may expect him to have stiffening of the distal joints but not to be contracted, but you certainly wouldn't expect him to have contractions of the metacarpal phalangeal joints and the proximal interphalangeal joints."

When examined for his final report dated 6 August 1997 Dr Morris noted that the plaintiff's hand had "not changed".

It should also be noted that under cross-examination Dr Morris stated that if the ring and little fingers of the left hand were amputated "it might be easier to use his hand". He also said in response to counsel for the plaintiff:

"We see a lot of people who do have amputated multiple digits and appear to work in the workforce quite successfully. If you amputate just the ring and little fingers you are talking about a disability of 15% to the hand, which is less than what he has got now."

In the opinion of Dr Morris the plaintiff could work driving a motor vehicle or a forklift provided no heavy manual lifting was involved.

At the outset of the trial leave was given to amend the statement of claim by adding "depression" to the consequences of the injury sustained by the plaintiff. On the plaintiff's side evidence was led from a Mr Chittenden, a psychologist, and Dr H.A. Whiteford, a psychiatrist. There was evidence on the defence side from Dr Chalk, a psychiatrist.

In his report of 1 June 1994 Chittenden speaks of the plaintiff suffering "depression and severe mood swings". Because of the hand injury, and because of the plaintiff's inability to read and write English to an acceptable level, Chittenden considered that he was unemployable. In his later report of 14 July 1997 he said that the plaintiff's condition "has not changed significantly". In that report he speaks of the plaintiff being "angry, frustrated, and certainly anxious about his future". He again expressed the view that he was "quite unemployable in his present situation". Under cross-examination Chittenden accepted that the plaintiff could possibly work as a taxi driver but queried whether his English would be good enough for that position.

Dr Whiteford examined the plaintiff on 13 June 1997 for his report of that date. In his report he said:

"It appears Mr Wegrzyn's identity, self-esteem and self-confidence were closely related to his vocational role and from a cultural perspective it was especially important for him to be able to provide materially for his family. With this removed, Mr Wegrzyn has developed demoralisation and frustration, social withdrawal, panic anxiety and some phobic avoidance and has increased his alcohol and cigarette intake."

He specifically noted that "mental state examination . . . did not reveal any clinically significant psychiatric abnormality".

Under cross-examination Dr Whiteford agreed with the proposition that getting back into some form of employment would be for the benefit of the plaintiff. He confirmed that from the psychiatric point of view there was no reason why the plaintiff could not return to work. He also said there was no reason from a psychiatric point of view for the plaintiff holding his fingers in a permanent contraction. He agreed that in the absence of any physical explanation for the contractions, holding his hand deliberately in that way would be consistent with malingering.

Dr Chalk interviewed the plaintiff for approximately 1 hour for the purposes of compiling his report dated 25 April 1997. Dr Chalk expressed the conclusion that the plaintiff was not suffering from a major psychiatric illness and also said there was no evidence of a major affective disorder or of a clinical anxiety illness. He went on:

"I did not think on the basis of my examination or from the history obtained that he currently suffers from a psychiatric condition sufficient to render him incapable of work. I do not think on the basis of his psychiatric condition when I saw him that he was incapable of work."

He did, however, record that the plaintiff "appears poorly motivated to return to work". He also mentioned increasing focus on his level of disability.

On the whole of the evidence I find that the plaintiff is not suffering from any major psychiatric illness. Further I find that there is no physical or psychological reason for his left hand to be contracted the way it is. Generally I accept the opinion of Dr Morris as to the disability which the plaintiff has with his left hand.

On the whole of the evidence there are clearly many jobs which the plaintiff would be capable of performing. He drives his family car and there is no reason why he could not drive a car (either as a taxi driver or as a courier driver) in order to earn a living. The occupational therapist spoke of at least knowing one taxi driver who only had one hand. He is clearly in a better position than that. As Dr Morris has indicated he would be able to grip the steering wheel with his left hand (more so if the ring and little fingers were amputated). Given the way the plaintiff gave his evidence I am satisfied that his English is good enough for him to obtain employment in many fields. I am satisfied that the plaintiff has a very significant income earning capacity and has had that capacity for some time.

It is clear on the evidence that he would not have worked for the defendant beyond about February 1993. The defendant's brewery was in the process of relocating when the plaintiff sustained his injury and the evidence establishes that he was certain to be retrenched. In any event he received a significant redundancy payment when his employment was terminated.

The evidence indicates that as a taxi driver he would be able to earn a comparable income with that of an operator of a machine of the type he was in charge of at the time he sustained his injury. Because of the disability to his hand he is more at risk on the open labour market than a person without any disability. That means that were he forced to change jobs he may face a lengthier period of unemployment than otherwise would be the case. His future economic loss must be calculated on that basis.

It is difficult on the evidence to fix the date post injury by which the plaintiff was able to return the workforce. Given the initial trauma, its affect on the plaintiff, and the fact that some re-training may have been necessary I will allow the plaintiff 2 years from the date of the accident before he had the capacity to resume earning at a comparable level to his pre-accident earnings.

Accepting as I do the evidence particularly of Dr Morris and Dr Chalk he has, at most, a 30% disability of his left hand (or 27% of his left upper arm) and that will probably be permanent. It is against that background that damages for pain and suffering and loss of amenities should be calculated.

Given those findings I assess damages for pain and suffering and loss of amenities in the sum of $35,000.00. Of that $17,500.00 is attributed to past economic loss and I allow interest thereon at the rate of 2% per annum for 4.5 years, a total of $1,575.00.

As at the date of the accident the plaintiff was earning $467.00 net per week. I allow past economic loss at that rate for a period of 2 years, namely $48,568.00. As his employment with the defendant would have ended in February 1993 in any event he is not entitled to any additional allowances to which he may have been entitled if he remained working with the defendant. Given the payments he received by way of Workers' Compensation no interest is allowed on past economic loss.

Medical and other expenses totalling $2,808.68 were paid by the Workers' Compensation Board and should be recovered as items of special damages. The evidence does not justify recovery of any other amount by way of special damages.

Future economic loss should be calculated in accordance with the findings made above. Bearing in mind that effectively future economic loss is to cover the period from the plaintiff being age 40 to age 65, and bearing in mind that difficulties in finding suitable employment may increase with age I will allow $100,000.00 under this head. That is roughly the equivalent of an average loss over the whole period of between $100 and $150 per week discounted at 5%.

The plaintiff is also entitled to recover in accordance with the Fox v Wood principle the sum of $6,492.65.

The plaintiff prior to the accident carried out renovations and other building work around his home. Because of his injuries he was unable to repair the roof and renovate the kitchen. The evidence indicates that he incurred additional total expenses of $1,780.00 in having that work carried out by contractors. That amount is claimed under the Griffiths v Kerkemeyer principle and it should be allowed. I find that the plaintiff is quite capable of mowing the yard and cleaning the car. He has one of his sons do that work on a fairly regular basis but that is not because of any incapacity on his part. I disallow any claim for such items. I will allow interest on the $1,780.00 at 2% for 4 years, namely $142.00.

(i) Pain and suffering and loss of amenities $35,000.00

The plaintiff is entitled to 50% of that given my findings on contributory negligence; that reduces the amount to $98,193.16. From that has to be deducted the sum of $55,721.88 repayable to the Workers' Compensation Board. There will therefore be judgment for the plaintiff for $42,471.28.