New South Wales Supreme Court CITATION : Heiko George Stalling v Bowral Brickworks Pty Ltd trading as Bowral Brickworks [2001] NSWSC 554 FILE NUMBER(S) : SC 20310/99 HEARING DATE(S) : 19-20/2/2001 6/6/2001 JUDGMENT DATE : 2 July 2001 PARTIES : Heiko George Stalling Bowral Brickworks Pty Ltd trading as Bowral Brickworks JUDGMENT OF : Dowd J at 1 COUNSEL : Mr P Biggins- Plaintiff Mr G Little SC- Defendant SOLICITORS : Robert Johns & Company- Plaintiff Sparke Helmore Solicitors- Defendant CATCHWORDS : Workplace injury - Unguarded machine - Contributory negligence - Projection of costs of expensive prosthesis LEGISLATION CITED : Workers Compensation Act 1987 CASES CITED : - DECISION : 1. Verdict for plaintiff on action; 2. Verdict for plaintiff on cross-action; and 3. Costs against defendant. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DOWD J 2 JULY 2001 20310/99 Heiko George Stalling v Bowral Brickworks Pty Ltd trading as Bowral Brickworks JUDGMENT 1 The plaintiff in these proceedings originally commenced proceedings in the District Court. These were later transferred to this court. The proceedings allege negligence for injuries sustained as a result of failing to guard a dangerous machine, or to warn or properly instruct the plaintiff as to the danger. The plaintiff also alleged breach of statutory duty. The plaintiff suffered a crushed left hand, requiring amputation of the left hand, and shock and permanent disabilities. 2 The defendant initially denied negligence and breach of statutory duty, and alleged contributory negligence. 3 During the course of the hearing, the defendant admitted breach of the duty of care, but did not withdraw the allegation of contributory negligence. Damages remained in issue. Facts 4 The plaintiff was born on 1 August 1960, and is married with three children, he having left school at the age of fifteen, his parents being of German origin. 5 Since leaving school, the plaintiff had a number of storeman positions, one of which was for a period of six years doing basic labouring and storeman work. He also worked as a garbage collector for eighteen months before commencing employment with the defendant in July 1993, he not having ever undertaken any qualifications of any nature. 6 His original employment with the defendant was as storeman, repairing pallets, clearing broken bricks, and clearing and looking after parts for machines, and cleaning machines. The other work that he was obliged to do was to grease machines, operate a kiln, and general cleaning and clearing work. 7 The plaintiff was a sportsman playing competition cricket. He then took up golf, which he still continues to enjoy, notwithstanding his one good arm. The plaintiff was quite a good player with the capacity to play off scratch. 8 The plaintiff was told that this was a new part of his job to operate the machine. The three people who had been working the machine were used in other parts of the plant to stack bricks and pavers, and the plant manager decided that the plaintiff could run the machine by himself. 9 On 17 December 1997, the plaintiff was operating a paving press machine called a 'spengler'. The plaintiff had been given a day-and-a-half training in the operation of this machine by one of the supervisors, and one other employee had demonstrated a few matters. He had previously only walked past the machine as other people operated it. 10 The machine was unguarded, the moulds and plunges being part of the machine were completely exposed. 11 The plaintiff was engaged in two tasks, moving between a work station at the rear of the machine and at the front. From the rear work station, the plaintiff would press the button causing each mould to fill with the paving mixture, and as the mixture-filled mould reached the plaintiff's work station, he would have to place a sheet of plastic over it so that none of the mixture would adhere to the face of the mould, which included lettering which would be stamped into the face of each paver to identify it. 12 The spengler machine was permitted personalised pavers being stamped out individually. The plaintiff would then move around the side of the machine, stepping down from the improvised platform which was a moveable bench placed in that location, with a twenty litre drum used as a step, and he would run around the machine to the main work station to remove the paver from the machine as the rotating bed brought it to that position. 13 The main bed of the machine was about two metres above floor level. The bench provided as a work platform had a surface a little over two feet above the ground and the twenty litre drum used as a step, had a top at a little over fifteen inches. The distance from the improvised work station to the main platform was about eight metres. The plaintiff was obliged to jump down from the rear platform, and run around to the steps to stand on the platform to ensure that the stamped paver was pulled out of the machine before it was lost to scrap. 14 During the plaintiff's limited instruction, he had been shown that the machine could be controlled by a stop and start button next to the rear work station. The machine however continued to rotate under its own momentum after the stop button had been hit. If the stop button was hit at just the right location, the machine would complete a rotation and come to a stop at just the right place for the next sheet of plastic to be placed in position over the mould before the mould and plunger moved towards the point where they come together. 15 The plaintiff developed a routine of placing the plastic over the mould after filling the mould with the mixture, pressing the start button to activate the machine, jumping down from his work platform to run around to take out the stamped paver, run back down the steps to the back of the machine to hit the stop button, so that the machine would slow and come to a stop in time for him to place a new piece of plastic in place. 16 The plaintiff, while operating the machine on his own, had to answer the telephone to deal with store enquiries. The plaintiff understood that he was expected to produce twenty-four pavers an hour, having therefore two-and-a-half minutes for each full cycle involving the movement between the two work stations both ways and the other activities. He had to use a scraper to remove excess dirt, place a sheet of plastic in place, and listen for a banging sound as a signal to stop the machine, and the machine's bed would not stop as anticipated and there was a high danger of injury. 17 The plaintiff was not entirely familiar with the machine performing a task under time pressure, in addition to working as a storeman. He was wearing gloves of an inappropriate material for performing the task provided by him as the defendant did not, and was unaware of the presence of an emergency stop button. Although he had been told of it, he had been given no practice in its operation. The plaintiff was operating a machine alone that required a fair degree of skill at operation with a high risk of injury. The plaintiff is not a person of superior intellectual abilities, and would have required a degree of training to be able to operate the machine. 18 On the day of the injury, the plaintiff began work at 6:00am. One of the maintenance workers was assisting the plaintiff at the spengler machine for a while. The plaintiff was called to the phone and after ten minutes, he returned to recommence the operation, his co-worker having left. The plaintiff pressed a paver, ran around and as he picked it up, noticed that one of the letters had not formed on the paver, so he threw the paver into the bin and ran around the other side. The machine was then turned off and was coming around slowly under its own momentum. The plaintiff put his left hand underneath to wipe the blades so that as it moved, it would dislodge the dirt, he having a glove on his hand. As he wiped it, he pulled his hand back and the middle two fingers caught on something. The plaintiff attempted to pull it out, and although pulling it half-way out, the machine caught his hand and pushed it into the cavity as he attempted to turn his hand. The plaintiff heard the bones crush, going off "like a rifle shot". He waved his arm as it was a very noisy work place. 19 The plaintiff was in terror as the pain was a burning pain as the plate was heated. The plaintiff was in panic because he thought that someone around the other side might start the machine and drag him into it. 20 The plaintiff was then taken by ambulance to Bowral Hospital and then transferred to Liverpool, then to St Luke's Hospital in very considerable pain. The plaintiff, after being operated on at St Luke's, looked at his hand in a plastic bag and he had three fingers, his thumb having a hook hanging out of it, that being a finger which had been sown to his thumb to give him a capacity to grab things. 21 The plaintiff remained at St Luke's Hospital for some eleven days, having had a three hour operation performed on his hand. He was then told that the skin on the top of the hand was dying. He was then transported to the Prince of Wales Hospital to be placed into a decompression chamber which he found to be a terrifying experience. The plaintiff suffered panic attacks following the injury and subsequent operations. 22 The plaintiff's left hand was amputated, as he could not bear the prospect of a large number of future operations with an indicated low risk of success. The defendant took no point in the proceedings as to the fact of the hand amputation being a consequence of the injuries suffered. Contributory Negligence 23 In the light of the admission of liability, the only issue on liability is the defendant's claim for contributory negligence. The defendant relies on the plaintiff's evidence, which was not challenged as to the issue of contributory negligence. 24 It is submitted by the defendant that the plaintiff was guilty of a ten per cent contribution to the injury. The plaintiff contended that there was no contributory negligence. 25 In addition to the facts that I have found above, the evidence before me was that of Dr Neil Adams, an expert in ergonomics and safety management. Dr Adams relied on the factual WorkCover report of Mr Ian Lancaster, which report disclosed a series of faults in the operation and guarding of the machine. The opinion of Dr Adams, which I accept, is that reasonable preventable measures could have been taken by the defendant to include the installation of appropriate guarding, as set out in the improvement notices issued by Mr Lancaster, and that the placing of the plastic over the bowl could have been automated with a simple mechanism for feeding the plastic into position, and appropriate interlocking of the guarding could have been installed so that when the guard was open for the insertion of the plastic, the machine would be automatically brought to a complete stop, and not restart until the guard was closed. This is a common safety system in such potential entrapment machines. 26 The further opinion of Dr Adams was that the plaintiff should have had more comprehensive training before being required to operate it without assistance. The provision of a suitable brush for cleaning the underside of the pressure plate would have been a simple expedient measure, even for an unguarded machine. The opinion of Dr Adams was that the injuries were sustained by the plaintiff's hand being caught by the cotton glove, as a result of failure to produce adequate safety devices, and guarding. His opinion is further that there is an ever-present probability that the operators of machinery may suffer entrapment if they are obliged to work with proximity to danger points which are unguarded. With this particular press, there is a clear probability that entrapment of a person's hand can occur with serious injury resulting. 27 In the light of the inadequate preparation for a person of the limited skills and abilities of the plaintiff and the inadequate stands and tins which the plaintiff was obliged to use in a fairly fast-moving operation, and the failure to provide guarding or appropriate equipment to carry out the task, the injury of the plaintiff was clearly as a result of the defendant's negligence. 28 The defendant, carrying the onus of proof on the issue of contributory negligence, has not, in the court's view, demonstrated that the actions of the plaintiff in any way demonstrated negligence. He was not provided with an appropriate glove, having to provide one himself. He was given inadequate training in the operation of a fairly complex machine, and was expected to do tasks on an unguarded machine with a high risk of injury from just momentary inattention. 29 I find that the catching of the glove was through no fault of the plaintiff, but was the fault of the system of the work and the machinery, and therefore the Court does not consider that the defendant has made out the issue of contributory negligence, and I accordingly find that the defendant fails on that issue. I find a verdict for the plaintiff on the issue of contributory negligence, and on the admission of liability as to negligence. I give a verdict for the plaintiff in the action. Damages 30 The plaintiff has submitted a considerable number of expert reports as to injuries, rehabilitation and the plaintiff's need for various prostheses. In the light of the events in the hearing where counsel did not seek a detailed examination of such reports, I have not set out that evidence in detail. 31 The proceedings were adjourned because of the provision by the defendant, just immediately prior to the commencement of the hearing of a new but highly expensive prosthesis, with which the plaintiff had to familiarise himself. The hearing was adjourned for that purpose and, during that time, some discussions occurred between counsel to reduce the number of issues involved. 32 Both plaintiff and defendant counsel are highly experienced in the area of common law and the assessment of damages, and produced a document which was admitted in evidence, showing the Schedule of Damages claimed by the plaintiff, calculated up to the date of 6 June 2001, being the last date of hearing, and the amount listed next to that amount as to the agreed appropriate figure, in the event of the plaintiff's succeeding on that head of damages. I set out the contents of the exhibit and the agreed appropriate figure. I have omitted the calculation which the parties submitted for ten per cent contribution in the light of the finding above. "Schedule of Damages Amount Claimed Agreed Figure Non-economic loss 80% maximum $177,960.00 70% $155,715.00 available at the time of the accident Past economic loss as per Personal Injury Support Pty Limited Report of 12/12/00 updated 6/6/01 $65,195.00 $65,195.00 Past Superannuation as per Personal Injury Support Pty Limited Report of 12/12/00 updated 6/6/01 $5,831.00 $5,831.00 Future loss of earning capacity as per Personal Injury Support Pty Limited Report of 12/12/00 updated 6/6/01 $308,477.00 $250,000.00 Future loss of superannuation as per Personal Injury Support Pty Limited Report of the 12/12/00 updated 6/6/01 $71,843.00 $60,000.00 Past prosthesis costs paid by insurer (as per WorkCase report of the 4th April 2001 and Appliance and Limb Centre (International) Pty Limited 13th March 2001) $54,221.35 $54,221.35 Future prosthetic costs (as per WorkCase report of the 4th April 2001 and Appliance and Limb Centre (International) Pty Limited 13th March 2001) $655,989.00 $623,189.00 Insurance of prosthesis $14,750.00 $14,012.00 Future cost of bandages at $8.00 per week. On 5% tables $7,200.00 $7,200.00 Tornado Electric Golf Buggy $2,095.00 $2,095.00 Future club re-gripping $6,442.00 $6,442.00 Golf clubs $3,096.00 $3,096.00 Golf gloves at $3.70 per week. On 5% tables $3,360.00 $3,360.00 Past G & K: $34,517.00 $34,517.00 (a) 26/9/97 to 29/10/97 (1 month) 16.5 hours per week by 4 ½ weeks by $20 per hour as per summary on page 14 on Occupational Therapy Report: $1,402.00 (b) 29/10/97 to 29/12/97 (2 months) 13.5 hours per week by 9 ½ weeks by $20 per hour: $2,565.00 (c) 1/1/98 to 6/6/01 (235 weeks) at 6.5 hours per week at $20 per hour: $30,550.00 Future G & K on life tables at an average 6.769 hours per week by $16 per hour ( as per report of Occupational Therapy of December 1998) which translates to $35.00 per week on the 5% tables) $123,862.00 $71,606.40 Fox v Wood $15,119.59 Medicals $57,372.83 Public Hospital $18,934.80 Rehabilitation $4,802.90 Travel $2,923.70 $1,455,633.57 Less Worker's Compensation Paid $204,124.47 Total $1,251,563.36 + Costs" 33 The plaintiff is highly limited in the functions which he can now perform, although greatly assisted by the various prosthesis that had been made available for him. The ordinary everyday task such as putting on socks and adjusting clothing create serious difficulties for him. Even issues such as walking up a set of stairs and the holding of a railing can present difficulties. The over-compensation for the loss of the left arm creates additional problems. 34 The defendant claims that there should be a deduction of five per cent for contingencies for future medicals and future Griffiths v Kirkemeyer claims. This seems to me to be a proper figure to take into account in the light of the age of the plaintiff and the nature of the consequential stresses on the plaintiff's body from the injuries he had sustained, and therefore I find the five per cent reduction appropriate, noting that the plaintiff takes no issue with that figure. 35 As to future economic loss which is sought by the plaintiff, I have examined the work potential of the plaintiff, being a person of considerably below average intelligence who has very limited acquired skills and work potential. His employability is potentially very limited in the light of his impairment, in particular the psychological damage that he sustained from the injury as a consequence of severe depression and anxiety proven before me by psychiatric reports. The rehabilitation evidence shows a very limited capacity to re-fit himself for permanent employment. 36 I find that the future Griffith v Kirkemeyer figure calculated in accordance with s151K of the Workers Compensation Act 1987, which requires a division of forty by the average weekly wage, produces a rate appropriately calculated in the figures set out above. 37 Accordingly, I consider that the evidence set out in paragraph 32 above as calculated by the parties are proper damages under each of the various heads claimed by the plaintiff. I find therefore verdict for the plaintiff in the sum of $1,251,563.36, and enter judgment accordingly. 38 I reserved costs of the adjournment of the proceedings from February to June as a result of the late delivery of the expensive prosthesis. I do not consider the plaintiff should be penalised by that adjournment, and in the circumstances of the proceedings, I award reserved costs to the plaintiff, as indeed in the light of the plaintiff's substantial success in the action, I award the plaintiff costs against the defendant in the proceedings. 39 I reserve to the parties liberty to apply in the light of the short delay between the conclusion of the hearing and this judgment to cover any need for adjustments. 40 Accordingly, the orders that I make are as follows: 1. Verdict for the plaintiff on the action; 2. Verdict for the plaintiff in the cross-action; 3. Judgment for the plaintiff in the action in the sum of $1,251,563.36 4. Plaintiff to have costs against the defendant including reserved costs; and 5. Liberty to apply. oOo Last Modified: 07/23/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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