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Product liability

Maker shares damages 38 WCMS 1

Andrew Goodman v Impact Hire Aust PL & Ors [2009] NSWSC 868. Patten AJ. 28.08.09.

A 32yo driver seriously injured his back in late 2003 straining to halt the backwards roll of a roadside sign trailer whose handbrake failed on a slope on the Warringah Expressway.

Expert engineers, the plaintiff’s Mr Colin Simpson and the third defendant’s Mr Neil Gillies, for the Nominal Defendant, which party settled out of the trial early, produced liability reports, particularly concerned with the trailer handbrake.

Citing Wyong SC v Shirt [1980] HCA 12; (1980) 146 CLR 40, and Kondis v STA [1984] HCA 61; (1984) 154 CLR 672 at 687, Patten AJ found the employer negligent in failing to stipulate a safe work system requiring the plaintiff to have deployed all four stabilising legs of the trailer before disconnecting from its towing vehicle.

The second defendant manufacturer was found equally culpable, knowing its handbrake assembly had limited utility.

Infra [94], acting Justice Patten said: “A reasonable man faced with this foreseeable danger, in my opinion, would have sought to avoid it by attaching a prominent sign which warned against using the handbrake to restrain the trailer on a sloping surface, and against disconnecting the trailer from the towing vehicle until all four stabilizing legs had been employed. The expense of so doing would, I infer, have been insignificant.”

His Honour said the risks the signage should have addressed were not obvious risks per s 5F of the Civil Liability Act.

The plaintiff had required two lumbar disc operations, and was left with unremitting back and leg pain, associated psychiatric afflictions and curtailment of activity and ability.

To damages, his Honour noted 17% WPI assessment in the employer case limited by 1987 Act s 151H, which economic loss damages, based on 25% residual pre-injury capacity, came to $800,667, comprising past wages $244,528, Fox v Wood $13,607, past superannuation loss $26,898; and future losses $698 weekly to age 65 as limited by s 151 IA by multiplier 783 less 15% vicissitudes $465,534, future super $51,099.

Against the manufacturer, his Honour found the plaintiff’s non-economic loss 50% of a most extreme case, $225,000, taking into account comparative youth: Rees v Rees (1994) MVR 103, and loss of sexual function: Knight v GIO [1995] NSWCA 246, as well as economic losses prospected against the employer, viz $800,666, past medical treatment $119,992, future treatment $200,000, past gratuitous domestic services $77,960 at 8 hrs weekly at $22.50pw over 282 weeks, and in the future, 3 hrs weekly at $30 hourly with multiplier 895, award $80,550, to total $1,384,176.

His Honour stood the matter over for short minutes to adjust for 1987 Act s 151Z, and costs applications.

P: Mr A Stone, Ms M Holz, inst White Barnes. 1D [employer]: Mr P Morris, inst Moray & Agnew. 2D [manufacturer]: Mr S Torrington, inst Bartier Perry. 3D [Nom Deft]: Mr B G Smith, inst Sparke Helmore.

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