Written by Peter CarterDecember 15, 2021
An appeal court has overturned a ruling that a labourer “not very interested in obtaining employment” was responsible for his own injury and that there was no basis for any award for future economic loss.
George Meecham fell from the back of a flatbed truck when struck by the boom of an excavator that had loaded a kerb laying machine under his guidance. He sustained a fractured elbow and a shoulder injury.
Immediately before the incident he had unclipped the D-shackle from the excavator’s lifting chain and “under armed” it to the excavator operator Michael Harris for him to catch.It was as Harris – who was not formally qualified to operate the machine and had only little experience on it – moved to his left to catch the object, that he bumped a lever to set the boom in motion.
The excavator was owned by the principal contractor on the site – Savco Earthmoving Pty Ltd – but Meecham and Harris were employees of a subcontractor.
Meecham filed a lawsuit against Savco alleging negligence on its part for allowing the unqualified Harris to operate the excavator and contending that a competent operator would have prevented the accident by shutting down the boom once the loading operation was complete.Judge Suzanne Sheridan – when the matter came before her in the District Court in Brisbane – found that Savco was negligent by allowing Harris to operate the machine but concluded the accident may well occurred even had a qualified machine driver been in control.
In doing so she accepted Savco’s submission that the accident had not been caused by its failure or Harris’s error but rather had occurred because Meechan had distracted Harris by throwing the object to him.
In exonerating Savco of liability, she provisionally assessed his damages at $39k with no allowance for loss of future earning capacity.
On appeal, the court was unanimously of the view that Savco’s negligence in allowing Harris to operate the excavator was causative of the injury.
Acknowledging that such an accident may well have occurred even when the machine was under the control of a qualified and experienced operator, Justice Phillip McMurdo – who delivered the lead judgement – observed that was not the issue that the court needed to decide.
“The question is whether Savco’s negligence, by permitting Mr Harris to operate its machine, created the risk, or substantially increased the risk,” he explained.
In his view Savco’s negligence did “create or at least substantially increase that risk” and “on a broad common sense view” it should be held to have caused Meechan’s injury.
Whereas Judge Sheridan had considered – if Savco had indeed been negligent it all – Meecham was contributorily negligent to the extent of 80%, Justice McMurdo and Justice Fraser ruled the appropriate assessment should be just 20%.
Justice John Bond differed with the majority only on that point, deciding that the appropriate measure of contributory negligence on Meecham’s part was 50%.
Turning their mind to damages, the appeal judges noted the differing opinions as to whole person impairment from orthopaedists Phillip Duke (1%) and his colleague Mark Robinson (4%) in the context of the plaintiff’s contention that his injuries would limit his ability to take up labouring jobs in the future.
Justice McMurdo noted however that “it is unnecessary for a plaintiff to establish that his injury will be productive of financial loss, and that it is sufficient to prove that there is a chance of that loss occurring”.
Given that Meecham’s injury occurred in his early 20s and that Judge Sheridan considered Dr Duke’s opinion to be perhaps “unduly hard”, the court increased general damages from $10k to $25k.
The appeal judges also thought there was a sufficient basis for future economic loss arising by reason of a permanent impairment and the risk of arthritis.
“The question here is not whether, more probably than not, a loss will be suffered,” Justice McMurdo ruled. “It is whether there is a diminished earning capacity which may be productive of financial loss. The extent of the diminution in this case is low, as is the risk of financial loss. But some allowance must be made for it”.
A discounted sum of $68k was allowed for loss of earning capacity in the future making up a total award – after deducting 20% for contributory negligence – of $104k.