SINGH v STERLANDS PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MEAGHER JA, POWELL JA and SHEPPARD AJA 9 October, 14 December 1998 [1998] NSWCA 211 FACTS The appellant was the successful plaintiff below and appeals the inadequacy of the verdict. HELD By Meagher JA, Powell JA agreeing, Sheppard AJA agreeing in part: The trial judge's finding of 20% contributory negligence was not erroneous; the finding for future economic loss was open to the trial judge. By Sheppard AJA: This is not a case for the reduction of the appellant's damages because he failed to take reasonable care for his own safety. In the event that contributory negligence was made out the reduction of 20% made by the trial judge was too great, where a reduction of 5% would have been sufficient. Meagher JA. This is an appeal by a plaintiff who succeeded in his case, based on both common law and statutory breaches of duty by his employer Sterlands Pty Limited, the present respondent. His case was heard by Newman J, who on 20 March 1997 found a verdict in his favour. The appeal is basically an appeal against the alleged inadequacy of the verdict. His Honour found that the plaintiff's verdict was composed of the following factors: Non-economic loss $88,598.00 Out of pockets $48,251.46 Past loss of earnings $45,000.00 Cost of future treatment $7,500.00 Future economic loss $113,934.00 Totalling $303,283.46 To this was added a Fox v Wood component of $329.57; and from the total was deducted $57,472.97 representing moneys paid to him under the Worker's Compensation Act; the total of those sums being reduced by a sum representing a 20% finding of contributory negligence. This leaves a final sum of $196,912.04, to which, of course, interest must be added. I might add that there had previously been an arbitrator's award in his favour in the amount of $261,952.00. The present appeal raises two issues: the first, and graver, being whether his Honour's finding of contributory negligence was justified; and the second being whether the figure found for future economic loss was correct. The case arose out of an accident which occurred on 9 October 1994. The plaintiff was at the time an engineering student at the University of Technology. He was working for the respondent in orderto gain industrial experience, as part 2 UNREPORTED JUDGMENTS of his engineering course. He commenced duties on 6 October 1989. When he began his duties a foreman, Mr Ray Mould, demonstrated to him how to operate a docking saw for the purpose of cutting pieces of wood. His Honour said of the saw: The docking saw in question was a form of circular saw guarded so that only a small part of the saw itself was visible. The saw itself, when not in use, retracted into a cabinet and its mode of operation as demonstrated to the plaintiff by Mr Mould was to pull it, when started, from its retractable position with the right hand using a handle affixed to the saw for that purpose towards where the plaintiff was standing at a bench. The timber was then to be fed across the path of the saw with the left hand. After the cut was made the saw was pushed back into its cabinet. On what seems to have been his second day's work his right hand came in contact with the saw blade, causing a traumatic amputation at the metacarpophalengeal joint level, causing all four fingers and his thumb to be removed. The medical injuries were very serious, even if the doctors have managed to sew the digits back onto his hand. He cannot remember exactly how the accident occurred. Various matters related to the causation given in evidence by the plaintiff were disbelieved by the judge, who clearly had no high opinion of the plaintiffs credibility. Piecing together what evidence was there, his Honour came to the conclusion that, because he was left-handed (a fact which he had never mentioned to his employers), he changed his mode ofoperation by using his left hand to pull the machine and his right hand to feed timber into it, which would involve crossing his hands, his left hand over his right hand. He was 20 years old at the time and inexperienced; on the other hand, he was highly intelligent. His Honour found that the respondent employer had not sufficiently instructed him in the operation of the machine, and that it was in breach of s 27 of the Factories, Shops and Industries Act, 1962. Nevertheless, his Honour found that the plaintiff was guilty of contributory negligence in deliberately altering his modus operandi in defiance of his employer's directions, and without their authorization. In the appeal, it was not contested that there was such an unauthorized alteration. Whilst, therefore, I have considerable sympathy for the plaintiff, and whilst the figure of 20% might be higher than a figure I would have been prepared to select, I cannot see how the finding of contributory negligence is erroneous, or how the figure of 20% could successfully be challenged. The challenge to the figure found for future economic loss is in a much narrower compass. That the plaintiff had lost much of the utility of his right hand goes without saying. That this disability must haveaffected his future earnings is also manifest. His Counsel submitted to his Honour that the loss of earnings ought be calculated at the rate of $300 per week net. This was the difference between the earnings of an engineer engaged in site work (which is what he, uninjured, would have done) and the earnings of an engineer involved in internal work (which is what he was reduced to). However, the plaintiff's own evidence was that he was offering to do site work, and (I think) had actually done a little of it. To strike a balance, his Honour chose an intermediate figure of $150 per week net. I cannot see why he should not do so. In my view the appeal should be dismissed with costs. Powell JA. I agree with Meagher JA. URJ SINGH v STERLANDS PTY LIMITED (Sheppard AJA) 3 Sheppard AJA. In this matter I have had the advantage of reading the judgment to be delivered by Meagher JA. Subject to what I wish to say in relation to contributory negligence, I am in agreement with his Honour's reasons and conclusions. The learned primary Judge reduced the amount of the damages, which he found to be $303,283.46, by twenty percent because of contributory negligence on the part of the appellant. Section 151N of the Workers Compensation Act 1987 provides, in subs.(3), that in an action for the award of damages founded on a breach of a statutory duty imposed on a defendant, contributory negligence on the part of the injured worker is not a complete defence, but that the damages recoverable are to be reduced by such percentage as the Court thinks just and equitable having regard to the person's share in the responsibility for the damages. Previously, contributory negligence had not been available as a defence to an action based on a breach of a statutory duty except in earlier days in which it afforded a complete defence. His Honour found that the appellant commenced duties with the respondent on 6 October 1989. Shortly afterwards, he was taken by the respondent's workshop foreman, Mr Mould, to a work station within the respondent's factory where Mr Mould demonstrated to the appellant how to operate a docking saw. The respondent was engaged in the construction of structural frames of walls and roofs. The docking saw was to be used by the appellant to cut pieces of timber known as noggins which were designed to be used to brace wall frames. The appellant's evidence was that he was instructed to cut the noggins to a length of about 1.5 metres from lengths of timber which were six to nine metres in length. Another witness, Mr Coates, thought the noggins to be cut were somewhat shorter. As his Honour said, nothing turns on this. His Honour described the docking saw. His description of it is to be found in Meagher JA's judgment. In order to operate it, it had to be pulled from its 'retractable position' towards the operator with the operator's right hand using a handle affixed to the saw. The timber to be cut was fed across the path of the saw with the operator's left hand. After the cut was made the saw was pushed back into its recess. There is not a finding as to the length of the period of instruction which the appellant was given but the impression I have is that it was not very long. Another employee, Mr Coates, was operating another docking saw about twenty feet from the appellant. When Mr Mould demonstrated the use of the machine, he requested Mr Coates to 'keep an eye' on the appellant. Mr Coates said he had done this and had assisted the appellant in freeing jammed timber from the machine on occasions during the day and a half the appellant was operating it. Other than the wood jamming, Mr Coates said he saw nothing untoward about the appellant's operation of the machine until the time of the accident. He said that when helooked up, the appellant had his back towards him and he thought that something was wrong. He went to him. The appellant turned around and pulled the saw and the accident happened. Mr Coates demonstrated what he had seen. His Honour said that the demonstration indicated that the appellant 'effectively had his hands crossed, his left hand on the saw with his right hand crossing his left hand to where the piece of wood being cut was positioned'. The appellant had said in his evidence that Mr Mould had told him to pull the saw with his right hand and feed the timber with his left. Despite this he began to use his left hand to pull out the saw and his right hand to feed the timber. This was because his dominant hand was his left hand. He found it more natural and 4 UNREPORTED JUDGMENTS easier to pull the saw with his left hand. He gave some evidence that he had asked somebody, whom he could not identify, if it would be all right to use his left hand. He said that he was told that it was. His Honour did not accept this evidence. Mr Coates denied that he had any conversation to this effect with the appellant. It is clear that the appellant injured his fingers when operating the saw by pulling it towards him with his left hand and feeding the timber with his right hand. This involved him in having his arms crossed with the consequence that the accident was a likely consequence of the method of operation which he adopted. Plainly he neglected the instruction he had been given by Mr Mould to operate the saw with his right hand and feed the material with his left. On any view of the facts of the matter, the appellant was quite inexperienced in the task which he had been set. He was given a short period of instruction by Mr Mould and had the benefit of some supervision by Mr Coates although, of course, he had his own work to do and could not have watched the appellant constantly. At the time of his injuries, the appellant was an engineering student. He had undertaken employment with the respondent with a view to gaining industrial experience which was necessary for him to obtain as part of the engineering course he was undertaking at the University of Technology. As his Honour remarked, the work which he undertook with the respondent would seem to have been inappropriate in terms of the type of industrial experience demanded by his course. The appellant was born on 28 November 1968. He was injured on 9 October 1994 and was thus almost twenty-six years of age. His Honour thought that he was twenty years of age but that could not be right in the light of the dates of the appellant's birth and the accident. Nevertheless, there is no suggestion that the appellant was at all experienced in the work of using a docking saw such as the one in question here. His Honour said that the appellant, being an intelligent person, should have appreciated that using a circular saw, even if guarded, was engaging in the operation of a dangerous device. He said that there was no dispute that the respondent was in breach of the duty imposed upon it by s 27 of the Factories, Shops and Industries Act 1962 which requires the fencing of dangerous parts of machinery. The relevant facts then were that the appellant was instructed to use what was clearly dangerous machinery in order to do his work. He was quite unfamiliar with machinery of the kind in question. He was given a very short period of instruction and some supervision but the supervision was not continuous. Plainly, on his Honour's findings, he took it upon himself to change the manner of operation which he had been instructed to adopt in that he began to pull the saw with his left hand and feed the timber with his right hand instead of pulling the saw with his right and feeding the timber with his left. That was a clear breach of his instructions as his Honour found. It led to his needing to have his right arm over his leftarm as he carried out his work. This involved an increase to the dangerous situation which existed as a result of a part or parts of the machinery being unfenced. Nevertheless, what has caused me to pause in relation to the question of contributory negligence is the fact that here is a comparatively young man, quite inexperienced in the operation of a docking saw, being instructed to operate it after a short period of instruction, who injured himself after a period of one and a half days. To many people I am sure that the method of operation he adopted would have seemed foolish. But the appellant did not perceive this to be the case. URJ SINGH v STERLANDS PTY LIMITED (Sheppard AJA) 5 One matter that I have considered is the evidence given by Mr Coates, whose evidence his Honour accepted, to the effect that when he went up to the appellant, the appellant turned around and pulled the saw and the accident happened. If that be the case, the evidence of Mr Coates suggests that the accident happened because the appellant's attention was diverted from the operation of the saw by Mr Coates" approach. His Honour made no finding about this matter and no submissions were made about it, so that it can play no part in the case. Nevertheless, Mr Coates" evidence suggests that this is what occurred. His Honour said that, in operating the saw contrary to the instructions which he received from Mr Mould, the appellant was performing a deliberate act so that the accident did not come about as a consequence of mere inattention. I think that statement tends to divert one's attention from the real point. The appellant's decision to pull the saw out with his left hand was deliberate, but he did not deliberately injure himself. He was injured because he chose a more dangerous way of operating the saw. Even so, it is unlikely that he would have been injured if he had not been inattentive. In this way inattentiveness does come into the matter. It is well known that people operating machinery, even dangerous machinery, at times have periods of inattention when they are likely to do foolish things. A reason why dangerous machinery is required to be fenced by statutes such as the Factories, Shops and Industries Act is the well known fact that employees do become inattentive. The legislation encourages employers to provide safe machinery which is unlikely to cause injury even if it is operated by an inattentive operator. Objectively speaking the appellant, in adopting that method, failed to take reasonable care for his own safety. In that sense it may be said that his actions in this regard were a cause of his injuries. Nevertheless, I think insufficient weight was given by his Honour to the dangerous nature of the machinery which was involved and the inexperience of the appellant coupled with his short period of instruction and the intermittent supervision of him. The evidence is not clear about when the appellant began to use his left hand to pull the saw towards him but it seems unlikely that he was injured when he was doing it for the first time. This in itself tends to establish that the supervision was no more than intermittent. His Honour's finding is, of course, entitled to great respect but the case, once the appellant's evidence about a discussion with an unidentified employee about operating the saw with his left hand was rejected, did not involve questions of credibility. It is a question of what one makes of the basis for his Honour's findings. In all the circumstances of this case I do not think that the facts and circumstances warranted the finding which his Honour made. That is because the analysis of the evidence establishes that the appellant was required to use a saw which was insufficiently protected in circumstances where he was given inadequate instruction and supervision. I have reached the conclusion that this was not a case for the reduction of the appellant's damages because he failed to take reasonable care for his own safety. The fact that he did not take adequate care for his own safety was due to the lack of instruction and supervision which he was given. If, contrary to that view, it be correct toconclude that the appellant was guilty of a degree of contributory negligence, I think that the reduction of his damages by twenty per cent was far too great a reduction. I am of opinion that the amount of the reduction should not have been more than five per cent. 6 UNREPORTED JUDGMENTS In the result I would vary the amount of the award of damages by omitting any reduction of the sum to be awarded for contributory negligence. My conclusion in that regard might, in other circumstances, have had an effect on the order for costs made by the primary Judge. I have not reached any conclusion on this matter because this judgment will not prevail and it is pointless for me to endeavour to do so. Subject to what I have said about contributory negligence, I would dismiss the appeal for the reasons given by Meagher JA. Appeal dismissed with costs. Counsel for the appellant: R WR PARKER QC/B McCMANAMEY Solicitors for the appellant: TAYLOR and SCOTT Counsel for the respondent: M W ROBINSON Solicitors for the respondent: SPARKE HELMORE