Curry v ACI Operations Pty Limited [2001] NSWSC 605

New South Wales Supreme Court

CITATION : Curry v ACI Operations Pty Limited [2001] NSWSC 605 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20516/00 HEARING DATE(S) : 2 July 2001 - 4 July 2001 inclusive JUDGMENT DATE : 18 July 2001

PARTIES : Arthur Iaseko Curry v ACI Operations Pty Limited JUDGMENT OF : Michael Grove J at 1

COUNSEL : J. Glissan QC with A. Reoch (Plaintiff) J. Sharpe (Defendant) SOLICITORS : Teakle Ormsby Conn (Plaintiff) McCulloch & Buggy (Defendant) CATCHWORDS : NEGLIGENCE - EMPLOYER/EMPLOYEE - CONTRIBUTORY NEGLIGENCE - DAMAGES ASSESSED LEGISLATION CITED : Workers Compensation Act 1987 Barisic v Devonport (1978) 2 NSWLR 111 Bus v Sydney County Council (1989) 167 CLR 78 Carlyle v Commissioner for Railways 1954 54 SR (NSW) 238 CASES CITED : Commissioner of Railways v Ruprecht (1979) 142 CLR 563 Fox v Wood (1981) 148 CLR 438 McLean v Tedman (1984) 155 CLR 306 Pennington v Norris (1956) 96 CLR 10 Sungravure Pty Limited v Meani (1964) 110 CLR 24 DECISION : Judgment for Plaintiff

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Wednesday 18 July 2001

20516/00 - ARTHUR IASEKO CURRY v ACI OPERATIONS PTY LIMITED

JUDGMENT

1 HIS HONOUR : The plaintiff was injured whilst in the employ of the defendant at its factory at about 10 pm on 6 June 1997. Contrary to a submission on behalf of the defendant that the facts of the occurrence are speculative I am abundantly satisfied that the forklift being driven by the plaintiff struck an overhead beam with its partly raised mast causing the vehicle to overturn thereby crushing and injuring the plaintiff. The beam was part of the travel track of an obsolete and unused crane and, in any event, the beam had no functional purpose within the factory. The risk of a raised forklift mast striking the beam was reasonably foreseeable and was avoidable by removal of the beam or the provision of forklifts with lower mast extension capacity, both of which were achieved after the plaintiff's accident. I reject the suggestions that I should find that the accident was caused by the plaintiff driving too fast or cornering incompetently or otherwise, except in respect of raising the mast, mishandling the vehicle. These submissions by the defendant were apparently based upon notations from unknown sources in hospital and ambulance records upon which I am unprepared to rely. 2 The particular operations in which the plaintiff was employed concerned the production of extruded plastic containers. The extrusion machines operated continuously and required feed of raw material from time to time. Bags of pelletised fresh material weighing one tonne each would be collected by the forklift. They were lifted by threading the tines through loops on the upper aspect of the bags. A full bag was transported to the machine and located in a frame above a hopper into which the contents were dropped by unlacing a drawstring holding the bottom of the bag closed. Offcuts from the operation (referred to as trim) were recovered for reprocessing and stored in half tonne bags. These were collected and the contents fed into the machine in a similar fashion to the feed from the larger bags. I am satisfied that at the time of the accident the plaintiff was probably heading to the trim bag storage point to collect and deliver the content of such a bag to an extrusion machine for which he was currently responsible. 3 The factory floor was marked by yellow lines. Ultimately the considerable attention paid to these (by some retained experts in particular) was conceded to be irrelevant in the light of the evidence of Mr Groncholsky the plant manager who confirmed that these were specifically to mark out pedestrian refuges rather than to delineate forklift routes. He conceded that a forklift would necessarily have to cross the lines from time to time, obviously at least to collect a load and, most importantly, he said that no matter which route the plaintiff had selected on the occasion in question, he had to pass under the purposeless beam. 4 I gather that the actual extrusion process was substantially automatic and the plaintiff's task was to ensure that it did not shut down for lack of raw material and in between collections his job was essentially to be an available observer. The overtime records show that the plaintiff worked quite extraordinarily long hours and sequences of days. He regular shift hours were from 3 pm to 11 pm but he rarely worked only for that period. Just before setting out on the fateful journey he was noticed to have been apparently dozing. This ought to have been in the range of anticipation of the defendant having regard to its imputed knowledge deriving from possession of roster (and wage) records in respect of hours worked. 5 I am satisfied that it is probable that the plaintiff lapsed in concentration and drove the forklift with elevated masts before he had cleared the hazard presented by the obsolete beam. I am satisfied that the defendant in leaving that hazardous situation unrectified failed to provide a workplace which was reasonably safe and in the whole of the circumstances exposed the plaintiff to risk of injury which was unnecessary. 6 The submissions on behalf of the defendant concerning primary liability focussed upon the contention that the happening was a matter of speculation but, if that submission was not accepted, I did not understand it to be otherwise contended that negligence was not established. I find that the plaintiff has proved negligence to the necessary standard. 7 Contributory negligence was alleged. Counsel for the defendant submitted that the apportionment of fault, if I came to this issue, should see the plaintiff bearing at least 50 percent of responsibility. 8 I reject the submission that the plaintiff was travelling too fast. To borrow expression from the defendant's primary submission, that is pure speculation. However, I accept that proper and safe practice would be to keep the tines (and hence the mast extension) lowered when the forklift was travelling without a load (as it was at the time) and that the plaintiff ought to have been aware of this requirement of prudence. 9 Senior counsel for the plaintiff vigorously contested the submission that the defendant had proved contributory negligence. He accepted that the accident had been caused by the collision between the mast of the forklift and the beam and that it was action by the plaintiff which allowed the mast to be at an inappropriate point of travel. However he contended that what the plaintiff had done was no more than become momentarily inattentive at the time when, for reasons which I have adumbrated, he was somewhat fatigued. Counsel referred to some of the ample authority regarding the situation of a workman like the plaintiff. 10 In Carlyle v Commissioner for Railways 1954 54 SR (NSW) 238 Maxwell J wrote that: "………… a mistake made by a workman will not usually be a good defence to an action if it was due to inadvertence, hurry, absorption in work or fatigue"