Masling v George Weston Foods Ltd t/as Kelly's Bakery (Orange) [2003] NSWSC 740

New South Wales Supreme Court

CITATION : Masling v George Weston Foods Ltd t/as Kelly's Bakery (Orange) [2003] NSWSC 740 HEARING DATE(S) : 16/6/03 - 18/6/03 JUDGMENT DATE : 14 August 2003

JUDGMENT OF : Newman AJ DECISION : Judgment for the defendant

CATCHWORDS : Negligence - master and servant - duty of care - electric shock - res ipsa loquitur Anchor Products Ltd v Hedges (1966) 115 CLR 493 Barkway v South Wales Transport Company Ltd [1948] 2 All ER 460 Byrne v Boadle (1863) 2 H&C 722 Davis v Bunn (1936) 56 CLR 246 CASES CITED : GIO v Frederichberg (1968) 42 ALJR 198 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 Piening v Wanless (1968) 117 CLR 498 Railways Commissioner v Corben (1939) 39 SR 55 Scott v London and St Katherine Docks Co (1865) 3 H&C 596 Schellenger v Tunnel Holdings Pty Limited (2000) 200 CLR 121 PARTIES : Tina Louise Masling (Plaintiff) George Weston Foods Limited t/as Kelly's Bakery (Orange) FILE NUMBER(S) : SC 20823/01 COUNSEL : G. Miller QC / J. Wynyard (Plaintiff) P. Blacket SC / W. Austron (Defendant) SOLICITORS : Boyd & Longhurst (Plaintiff) Hicksons (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NEWMAN AJ

14 August 2003

20823/01 – Tina Louise MASLING v GEORGE WESTON FOODS LTD t/as KELLY'S BAKERY (ORANGE)

JUDGMENT 1 HIS HONOUR: This is a claim for damages brought by the plaintiff against her former employer. The defendant has denied liability. 2 Prior to 2 November 2000 the plaintiff had been employed by the defendant at its bakery at Peasley Street, Orange as a breadhand from January of 2000. Indeed before taking up her duties with the defendant, the plaintiff had in fact spent a short period in the defendant's employ. 3 The plaintiff's case was that at about 3.20 pm on 2 November 2000 she received an electric shock while turning off an electric oven installed in a kitchen used by employees of the defendant to obtain refreshment. 4 At the trial there was no issue that something did happen to the plaintiff at the stated time. Equally there was no issue that when the incident occurred the plaintiff was in the kitchen and that there was an electric stove installed in that room. 5 There were, however, a number of issues relating to the incident. First, there was an issue as to the type of stove installed in the kitchen. Second, there was an issue as to what in fact happened to the plaintiff at the subject time. 6 The plaintiff's case was either the stove itself was defective in that there was a defect in the insulation from the active conductor to the exposed metal of the stove and second, that the earthing of the appliance or of the earth return in the building where the appliance was being used, was defective. Again, there was an issue as to whether the plaintiff had established either of these two matters. 7 The plaintiff claimed that she sustained a disturbance to her heart rhythm, which required the insertion of a pacemaker. Secondly, she claims that she has suffered continuing incapacity as a consequence of that disturbance and problems associated with the operation of the pacemaker. 8 An issue emerged as to the configuration of the oven itself. The plaintiff described the oven as follows:- "Q. The oven itself, how would you describe it in appearance, how big? A. Approximately (indicating). Q. One metre? A. Half a metre I suppose. Would that be half? Q. It looks like a metre to me? A. Just under a metre. Q. About a metre? A. No, it wouldn't be a metre-wide, it's not that big. About half a metre. Approximately about 30, 35 centimetres high. Q. 35 centimetres high? A. Just over a ruler. Q. There was a hot plate on the top? A. Yes. I'm not sure if there was one or two hot plates on the top. I think there was two. Q. It is like a square box? A. Yes. Q. Where were the knobs located? A. On the right hand side, there was a couple of knobs on the top and one knob on the front. Q. On the front as you approached it? A. Yes, and the oven door pulled down towards you." 9 A similar description was given by a fellow employee, James Rodney Bush, particularly as to the positioning of the knobs on the implement. Mr Bush described it as follows:- "Q. You cannot remember whether it had knobs on the top or not? A. Yeah, I don't reckon it had knobs on the top, I can't remember seeing the switches over there like that, honestly I can't. Q. Your recollection is knobs in the vertical position to the ride right side of the door? A. That's right, yeah. Q. Your recollection was it had trays rather than a door? A. Yes that is what I thought it was rather than the handle like drawers come out. Q. Like a pie warmer? A. Yeah, that is what I thought it was." 10 One Michael Arthur Baragry when shown an oven claimed by the defendant to be the subject implement stated that the implement he thought he had seen in the employees' kitchen was a different colour to the implement shown to him. 11 One Lee James Barter also denied that the stove produced by the defendant was the subject implement. In chief he said this:- "Q. Would you like to come and have a look at it or can you see it? A. I can see it fine. Q. What do you say about that appliance relative to the appliance you removed from the crib room? A. No, I don't think that is the appliance. Q. Why do you say that? A. The appliance from my memory, it has been a while, it had knobs on the front of it and it was probably a bit bigger than that because I went and got the two wheel barrow to remove the appliance and I would have just carried that appliance if it was that appliance. Q. When you say it was bigger, is that taller or wider? A. Wider from memory." 12 However, despite the denial of the plaintiff and the witnesses I have nominated, I have no doubt that the stove produced by the defendant was in fact the subject stove. I find this because I accept the evidence given in the matter by Mr Bernard Anthony Schell to be entirely acceptable on this point. Mr Schell deposed that the subject stove was an Atlas brand. He had removed it from premises previously operated by the defendant at Belfield in Sydney to Orange in February of 1993. He and his wife had used the stove while they were living in a shed on a property they owned while their residence was being built. Thereafter the stove had been stored in a shed on his property. Following a request made for a heating device for food by a member of the staff, Mr Schell had brought the stove into the premises of the defendant at Orange on the Sunday prior to the incident involving the plaintiff. 13 The stove was also subject to identification by the electrician who had carried out tests on it prior to it being put into use and after the incident, namely Steven John McGrath. Again, I find Mr McGrath to be an honest and reliable witness. Accordingly, as I have said, I have no doubt that the implement produced by the defendant and entered into evidence was in fact the stove involved in the subject incident. 14 The importance of this finding will be illustrated later in these reasons because it was this stove which was tested not only by Mr McGrath, but also a Workcover inspector, Kenneth Evans, and by Dr KA Walshe, an electrical engineer, who was qualified by the defendant. As I have indicated I will return to the thrust of their evidence later in these reasons. 15 I turn then to the subject incident. The plaintiff deposed that during her lunchbreak she had left the defendant's premises and had driven her car to a shop some two blocks away to purchase a kebab. She then drove back to the defendant's premises where she ate the kebab in the back dock area of the complex. She then washed her hands and commenced walking back to her work station. The plaintiff deposed that having completed her lunchbreak she was returning to her place of employment at the defendant's premises. In so doing she was required to pass the door of the kitchen in which the stove was situated. As she did so she smelt what she believed was the odour of pies burning in the subject oven. In chief she deposed that the following events then occurred:- "Q. What did you do, what did you see? A. I just walked in the kitchen, went into the crib room, the oven was on the left hand side of the bench, I walked up, seen the oven dial and switched it completely off. When it got to the off position my right shoulder got thrown back. Q. What did you feel, in anything? A. Sort of like, besides the jolt, it was like tingling and then I had a pulsating in my arm. Q. You are describing something and we have to get a transcript of it; where did you feel the tingling? A. My right – do you call that the forearm? Q. Inside the right forearm? A. Yes. Q. You say you got a jolt; where was that? A. From my right hand ---. Q. Turn it around and show his Honour? A. It was here (indicating). Q. Near your right thumb, is it? A. Yes. Q. What happened to your body, if anything? A. Besides feeling the tingly I started feeling vomitey, like I wanted to vomit. Q. Was your body stationary or did it move – or, if you don't know say so? A. I don't actually understand. Do you mean where I was standing in front of the oven? I reached over – actually I wasn't standing completing still, I had one foot on the ground and one foot ajar, off the ground – you know, in motion. I could stand and show you. Q. Please do. You are saying this is how you went to the oven? A. When I actually switched the oven off I was standing with my right foot forward, my left foot was ajar, off the floor. I lent forward with my right arm, switched it off and got jolted back like that (indicating)." 16 Immediately following this incident she told a fellow employee, Mr Darryl Wilson, who had walked in through the crib room door what had happened. 17 Under cross-examination the plaintiff remained adamant that the knob or dial she touched was on the front of the implement and not on the top. She thus continued her denial that the oven produced in evidence by the defendant was not the one she touched. 18 Later in cross-examination the plaintiff was asked to describe exactly how she grasped the knob in question. The following exchange occurred:- "Q. When you touched the switch to turn the oven to the off position you grasped it with your thumb and forefinger of your right hand? A. And partly my third finger as well, I grabbed it with the three fingers. Q. You grabbed it with three fingers? A. Yes." "BLACKET: Q. Approximately what dimension were the knobs on that oven, that same size? A. No, they were bigger than those knobs. Q. Larger? A. Yes. Q. Sticking out more? A. Yes. They're actually like rounder as well. Like, they weren't as small as that. Q. You were reaching forward to switch this knob off? A. Yes. Q. How is it the base of your thumb came in contact with the knob if you were reaching out using the tips of your thumb, index and middle fingers? A. I didn't say I was using the tips of my fingers, I said I used three fingers – right? Like the knob was, touching it here. MILLER: Indicates inside of the --- A. The knob, I grabbed it like that, and switched it off – right? That's how I grabbed it. BLACKET: We need to record that for the transcript. Q. You are indicating you used your thumb or fingers and inner aspect of your middle finger to turn the knob, is that right? A. Yes." 19 When taken to this topic in re-examination, the plaintiff's evidence was as follows:- "Q. The knobs that you were, do you remember you were taken through the demonstration of the knob? A. Yes. Q. If we could do that again so I can get a written transcript. Hold your hand up as if you were doing something to the knob? A. The knob is approximately a centimetre and a half, two centimetres like out through -- Q. So two and a half centimetres towards you? A. Yes, so I will just indicate, my two fingers as the knob, I put my thumb on the left side, my pointer finger. Q. Your right index finger? A. Yes, on the top and this third finger was around this side and the corner of the knob was touching in there and I just turned. Q. The corner of the knob was touching the inside of the base of your thumb? A. Yes. Q. What is called the Thenur process? That thick process underneath the base of your thumb? A. Yes." 20 After reporting the incident the plaintiff was ultimately taken to Orange Base Hospital by Mr Schell. After admission she was diagnosed as having a heart block which caused her to be admitted as an in-patient. 21 She came under the care of Dr David Amos, Cardiologist. 22 He attributed the condition of heart block to the episode which had occurred shortly beforehand at her place of work. He described the condition as being a possible but rare complication of electrocution. 23 After two weeks of cardiac monitoring she was referred to the Royal Prince Alfred Hospital where a dual chamber pace maker was inserted on the 16 November 2000. The plaintiff remained under Dr Amos' care until the 4 October 2001. 24 On that day, having reviewed the plaintiff's symptoms and echocardiac studies, Dr Amos came to this conclusion:- As a final summary I don't feel that there is enough evidence to say that the electrocution has been the cause of her cardiac dysfunction. If she had a tachycardia related myopathy then it should have resolved by now as the pacemaker has effectively been inactive for some time. I think that it is almost certain that she had an underlying cardiomyopathy and I have tried to give her the benefit of the doubt until now. 25 Following the expression of those views to the plaintiff by Dr Amos the plaintiff abruptly left Dr Amos' care. 26 She then came under the care of another Orange based cardiologist, Dr Richard Cranswick. I shall return to views expressed by Dr Cranswick later in these reasons. 27 The plaintiff has been seen by a number of specialist cardiologists on behalf of the legal representatives for both parties. 28 Dr George Michell, who saw her on 1 August 2001, received a history which was consistent with the evidence the plaintiff gave at the hearing. Dr Michell made inter alia the following observations:- …in my search for literature I have been unable to find any reference to heart block having been induced by an electric shock.