Pritchard v Port Waratah Coal Services Ltd [1999] NSWSC 1161

New South Wales Supreme Court CITATION : Pritchard v Port Waratah Coal Services Ltd [1999] NSWSC 1161 CURRENT JURISDICTION : Civil FILE NUMBER(S) : 300146/96 HEARING DATE(S) : 20/10/99, 21/10/99,25/10/99 JUDGMENT DATE : 1 December 1999

PARTIES : Grant Barrie Pritchard (Plt) Port Waratah Coal Services (Def) JUDGMENT OF : Newman J

COUNSEL : C R Callaway QC/P J Kirby (Plt) S J Harben (Def) SOLICITORS : Bale Boshev & Associates (Plt) Sparke Helmore (Def) CATCHWORDS : DECISION : Judgment for the plaintiff

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NEWMAN J

WEDNESDAY, 1 DECEMBER 1999

NEWCASTLE: 146/96: PRITCHARD v PORT WARATAH COAL SERVICES LTD

JUDGMENT

1 HIS HONOUR: This is a claim for damages for personal injuries brought by the plaintiff who was at the time of an alleged incident, an employee of the defendant. While the plaintiff's case is primarily based upon an allegation that the subject accident occurred because the system of work in which he was engaged was unsafe because a motor vehicle was involved in the incident, the case falls within the purview of the Motor Accidents Act 1988 as amended. 2 The subject accident is alleged to have occurred on Saturday, 3 July 1993 at about 1.30 pm. At that time the plaintiff was employed by the defendant as a plant operator. His duties involved driving machinery operated by the defendant including frontend loaders, fork lifts and similar devices. 3 On Saturday, 3 July 1993 the plaintiff was directed by his supervisor, who apparently was a Mr Selby Green, to assist a fellow plant operator, a Mr Leonard Marks, to pick up scrap material from the defendant's yard. That scrap material consisted of off-cuts from machinery upgrades and included steel pipes, flat steel plate, angle iron, girders and rollers. To perform the task a Hiab crane truck was utilised. 4 Marks was driving the crane and the plaintiff was acting as a crane chaser. The truck itself was of the type known as a flat bed truck and the crane was mounted on its rear. As may be gained from the description of the metallic objects to be picked up they were irregular in shape. 5 The operation being carried out consisted of the truck being driven around the yard and the crane being utilised to lift the metallic objects on to the bed of the truck. To prevent the off-cuts sliding off the truck when it was in motion, steel bars were placed around the side of the truck - it being a flat bed truck it had no sides around its tray. From time to time the truck would drive alongside bins which were located in the yard and the metallic objects were hooked to the crane by the plaintiff after which Marks would operate the crane to deposit the scrap metal into the bins. When the scrap metal had been placed in the bin the plaintiff would then unhook the crane and the process of picking up and loading the truck would recommence. 6 It was the plaintiff's case that the following method was employed to move the scrap metal from the body of the truck into the bin. The plaintiff would stand on the flat bed and hook the chains which were underneath the pieces of scrap metal to the crane. The plaintiff alleged that he was standing in a position on the truck's bed where Marks could see him. The crane would then be operated so that initially the weight of the load would be taken up by the crane and when it appeared to be secure then the crane would be operated to lift the load from the bed of the truck into the skip. 7 On one such occasion the plaintiff deposed that the following occurred: "Q. And as he proceeded to lift, what happened? A. Well, as he proceeded to lift, the load underneath started to slide - the pipe must have been holding it in place. As he had taken the heavy weights off, the sheets beneath started to slide and slid towards me. I thought I was going to have my foot crushed, so I jumped off the back of the truck." 8 In jumping off the side of the truck the plaintiff landed in a manner which he described as doing the splits. He immediately felt a pain in his left groin. However, as the shift which he was working was nearing an end the plaintiff decided to complete the shift. He said nothing to Marks at the time when the incident occurred about any injury occurring to him but at the completion of the shift he discussed the matter with Marks while they were heading to the showers. 9 Marks' account of the events of the afternoon of 3 July was not inconsistent with that of the plaintiff. In chief Marks had this to say about the observation he made of the plaintiff while the plaintiff was on the truck: "Q. But until he got off the truck would it be necessary for you to watch him? A. Oh, he could be out of my sight around the other side of the truck. Q. That is when he was off the truck? A. Yeah. Q. I am talking about until he got off the truck, was it necessary for you to watch him? A. Oh, not really necessary. I'd be just watching the - not really, no, once everything was hooked up and right. Q. Well, what happened after it was hooked up and you commenced to lift the load? A. What happens? Q. Yes? A. Well, I'd just slew it off the truck and around into the bin. Q. When would you do that in relation to where Mr Pritchard was? A. Well, all depends. If you had a load that was swinging around the crane chaser could get on the same side as me on the truck and just guide it off the truck, or otherwise, if it was just a small load, he'd just get down off the truck into a safe spot where I could see him and then I'd slew it off into the bin." 10 Marks recalled that the plaintiff had told him when they were heading towards the showers that he had hurt his groin when he had jumped off the truck. 11 In these circumstances, despite a challenge being made to the plaintiff's evidence on the basis that the accident did not occur on that day, I accept the version given by the plaintiff. 12 Expert reports were tendered on behalf of both the plaintiff and the defendant. Dr Adams, an ergonomic and safety expert, expressed the view that the risk of part of an oddly associated load of the type involved here, moving as it was being lifted, was a possibility which should have been anticipated by the defendant. 13 He pointed to a number of preventative measures which he thought could reasonably have been put in place. These included: