LANZA v CODEMO [2001] NSWSC 845

New South Wales Supreme Court

CITATION : LANZA v CODEMO [2001] NSWSC 845 FILE NUMBER(S) : SC 20818/97 HEARING DATE(S) : JUDGMENT DATE : 28 September 2001

PARTIES : Guiseppe Lanza Codemo Management Pty Ltd t/a Yoogali Engineering Co and Ors JUDGMENT OF : Wood CJatCL at 1

LOWER COURT Supreme Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

P: L Morris QC with D Conti D1 and D2 C Hoeben SC 3D discontinued COUNSEL : 4D P Greenwood SC with G.D. McNally 5D ADM Hewitt SC with J. Sleight 6D I Wales SC 3-4 xd [SSE] M. McCulloch Freehills SOLICITORS : 5D: Morag & agnew 6D: McCabes CATCHWORDS : TORT – Personal Injury – Costs – whether Bullock or Sanderson order should be made – costs between contributing defendants – whether costs incurred by plaintiff reasonable as between plaintiff and unsuccessful defendant – where claims against defendants were independent and alternative DECISION : See separate minutes of order

- - IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

NO.20818 of 1997 WOOD CJ AT CL WEDNESDAY 28TH FEBRUARY 2001

LANZA V CODEMO MANAGEMENT PTY LTD t/a YOOGALI ENGINEERING CO

JUDGMENT 1 WOOD CJ AT CL: The plaintiff, Guiseppe Lanza, became a quadriplegic as a result of an accident at his place of work in Griffith, on 27 June 1996. He brings these proceedings for damages in respect of the injuries sustained.

THE ACCIDENT 2 The accident occurred while the plaintiff was working from the bucket of a mobile cherry picker, a form of elevated work platform (EWP) attached to a late 1960's model Austin truck owned by his employers ("Yoogali"). The cherry picker had been built in 1967 and purchased by Yoogali from the Murrumbidgee County Council in the mid 1980's. 3 The plaintiff was, at the time of the accident, assisting two other men, his brother Marco Lanza, and Mathew Smart, to lift a beam and attached door track, which was to be welded to purlins on either side of the doorway to the shed that they were constructing. The EWP was about 5 metres above the ground, and comprised a bucket whose dimensions were 1260mm, by 620mm, by 920mm deep. 4 Although narrow, the bucket permitted a man, standing within it, to crouch down to reach tools required for the job at hand. It was being used, at the time of the accident, to support the beam which the other two workmen were hauling up by ropes slung over the purlins. 5 The plaintiff was wearing a levitator safety harness, with a December 1995 manufacture date, attached to his upper body with straps over the shoulders and in between his legs. At the rear of the harness there was a D ring attached to an extendable tension strap. That tension strap, which performed the function of an energy absorber, was contained within a pocket, and was secured by sacrificial stitching. In the event of a fall, the sacrificial stitching was designed to break, thereby activating the energy absorber, that would help break the wearer's fall. 6 An essential element of this fall arrest system, when in use, was the connection of the harness to a fixed point, preferably located at or above the height of the D ring, by way of a lanyard. The lanyard in use was about 1.8m long, and consisted of a plastic coated galvanised 7mm wire cable to which hooks were swaged at each end. They were rated to have a load bearing capacity of 25 kn, well in excess of the relevant Australian standard. One end of this lanyard was intended to be hooked onto the D ring of the harness. The remote or free end was intended to be hooked onto a fixed point, in the present case an eyelet or ring located on the top of the bucket. 7 The hooks were provided with a spring-loaded keeper, which was backed up by a spring loaded latch. This latch had to be depressed to disengage the tongue of the keeper which automatically closed around the load by spring tension. 8 So designed, and assuming all connections were properly made, the harness and lanyard were intended for use as a last resort safety device to arrest the wearer in the event of a fall. 9 The plaintiff's accident occurred just as, or immediately after, he had crouched down to pick up either a spanner or welder hand piece from the bottom of the bucket. Unfortunately, at that moment, a glass fibre reinforced plastic (GRP) rod, which was part of the levelling mechanism of the bucket, and which was attached to a wire cable, broke as a result of its incomplete lamination, tipped the bucket forward, and propelled the plaintiff from it. The harness did not arrest his fall onto the concrete below. 10 Immediately after the accident it was seen that the remote end of the lanyard was still attached to the eyelet in the bucket. The hook that should have engaged the other end of the lanyard to the harness was not however engaged, and the sacrificial stitching used to hold the shock absorber was intact, indicating that it had not been placed under a full load. No damage was found to the hooks or the catches, and the hook was found to be functioning correctly. The plaintiff was still wearing the harness, which was cut from him by the ambulance officers called to the scene. 11 It was common ground, as confirmed by all the experts, that the cause of the failure of the levelling mechanism was the defective state of the GRP rod, it being agreed by them that the cherry picker was being used well within its safe recommended load of 500 lbs. It was also common ground that proper inspection and maintenance of the cherry picker should have picked up the defective and potentially dangerous condition of the GRP rod.