Supreme Court Defence Opened In Claim For £17,000

Press, Volume C, Issue 29469, 22 March 1961, Page 9

Supreme Court Defence Opened In Claim For £17,000

Somebody in the employ of Europa Oil, New Zealand, Limited, had slipped up in his duty to inform men working on a 500-gallon fuel tank that it contained gas and some highly inflammable liquid, Mr J. G. Leggat said to Mr Justice Macarthur and a jury in the Supreme Court yesterday. But a welder who applied an electric arc to the tank had contributed to his own injuries in the resultant explosion by failing to make a simple check which would have shown the tank was unsafe for welding, counsel said.

Mr Leggat was opening the defence to the claim for £15.000 general and £2197 special damages by Arnold Flitcroft, aged 52 married, a welder, for injuries he suffered when a fuel tank exploded at the Clarendon Hotel about 430 p.m. on December 15, 1958 Flitcroft was covered from head to foot with flaming liquid. He was working as an independent contractor at the time, called in to weld the tank by Europa, the firm installing the tank. Evidence for the defence was still being given when his Honour adjourned the Court. The hearing will continue today. Mr B. McClelland. with him Mr J. E. Millar, appeared for Flitcroft. Mr J. G. Leggat, with him Mr C. B. Atkinson, appeared for the defendant firm. Examined Tank Eric Roland Austin, first witness called for the plaintiff when the trial resumed, said he had been in the welding industry for 35 years and was now running a welding consultant service. Austin said he had examined the tank which had exploded, at the request of the plaintiff's advisers. He produced photographs of the tank. If he knew a tank had contained inflammable material he would arrange for it to be degassed. This was a complicated job. If the tank were in the country, where no cleaning apparatus was readily available, he would, if required, have filled the tank with water before welding it. Degassing a tank would take at least four or five hours. Even then it would have to be rechecked. as vapours or gases clung to the walls of a tank. Mr McClelland: If you. as an expert welder, were called on to weld a tank which was brand new, what precautions would you take? Water Calibration Austin: I would take none at all. I would not expect a brand new tank to have any fuel in it or to have had fuel in it. He had only once had experience of calibrating a tank, Austin said. On that occasion water had been used for the calibration. Cross-examined by Mr Leggat, Austin said he would not take precautions even if he "only thought” it was a brand new tank. Even if he was “only under the impression” that it was a brand new tank he would take no precautions. Referred by Mr Leggat, to a Labour Department poster, dated 1957. concerning the dangers of welding or cutting or repairing "containers or drums which have contained petrol or inflammable materials” and instructions to take all precautions to ensure that no traces are left, Austin agreed that the poster placed an onus on the welder as to the state of the container. “There are two tanks—new tanks and old tanks. As welders, we do not expect a new tank to have had inflammable liquid in it. We do not expect inflammable materials in it until after it is placed in position,” Austin said. When a welder saw an old drum or fuel tank he knew that the drum had been used to contain inflammable material at some time and would take precautions. Removal of Cap “I still maintain that in the welding fraternity we would not take precautions if we knew the tank was a brand new one. If Flitcroft had expected that the tank had been used, the poster and its precautions to be taken by the welder. would have applied.” Austin said. After further questions. Austin agreed that if a cap of one of the five vents in the tank at the Clarendon had been removed by Flitcroft he would have known immediately that the tank had gas in it. He could have removed one of the screw caps in a few seconds. “But why would he remove it? I would not have bothered—it was a brand new tank.” Austin added.

Mr Leggat said the Labour Department notice was. in effect, a warning to welders to double check. If some person had interfered with a tank and put petrol or an explosive in it would not such a check by a welder reveal this? "I cannot agree with you.” Austin replied. “Can you imagine it? If you were painting your house and left the scaffolding overnight, would you check it the next day before you began painting again to see if someone had interfered with it overnight?” Medical Evidence Christopher Gresson, a consultant physician, said the future of Flitcroft’s left hand was uncertain. If the stumps of the fingers continued to be too tender to withstand pressure and if bone infection of the hand should recur as was quite likely, the hand would be a total loss. “In fact, he would be better off now with a painless amputation of the hand and a hook or artificial hand to replace it.” the doctor said. He said Flitcroft's left arm could not be raised more than 60 degrees above horizontal and the elbow was limited in bending. Clerical Work “I don't think he will ever be able to do manual work. I think he is limited to clerical work. I think his present physical ability will remain stationary unless his left hand is removed. This would take awa'y the bone infection, which is a danger to him.” Witness said the scars on Flitcroft’s face made him unsightly although the scarring had lessened during the last nine months. The scars would become less noticeable and in another two years all a passer-by would think was that something had happened to his face. To Mr Leggat. Gresson said he would agree that Flitcroft was a sensible, uncomplaining man who had faced up to his injuries in a responsible way and was making a good fist of overcoming his disabilities. Photographs taken at Burwood Hospital, showing the extent of the burns Flitcroft suffered the day after his accident, were produced by T. W. Milliken, a plastic surgeon. The burns were severely painful. The dead skin was removed but the burns on the skin partially burned would be extremely painful. "He was treated for shock and had blood transfusions. Altogether, he had nine operations to correct the burned and damaged skin which covered 30 per cent, of the body area.” the doctor said. Defence Case The jury should treat Flitcroft's claim fairly, taking into account his suffering and economic loss and that of the future, but it should not be unduly generous or handsome in its handling of other people’s money, said Mr Leggat in opening the case for the defence. “I should like to say at this stage that it is quite clear that somewhere along the line, between the manufacture of the tank and its arrival at the Clarendon Hotel, someone in the defendant firm has slipped. “This has been a human error and, gentlemen, errors do occur. But seldom do human errors lead to such disastrous consequences. “Someone in the defendant flrm not only failed to warn Flitcroft but also failed to warn Mr Fuller and Mr Gordon. employees of Europa. “As a result of that failure the accident occurred. At some stage, the defendant firm did not discharge its dutv and must compensate Mr Flitcroft. “The law says that the defendant firm must take care of people in the position of Mr Flitcroft but. and it is a very big but. by the same token Mr Flitcroft, and people like him, have a duty to take care of themselves,” Mr Leggat said. Counsel said that by not making a simple check of the tank, which would have shown the presence of dan-

gerous gas and liquid. Flitcroft had been guilty of contributory negligence. “Careless, Tno” “That is the view that the defence asks you to take—that Mr Flitcroft, too, was careless in a way that meant he did not take care of himself. You will be asked, subject to what his Honour might say, to proportion the amount of blame. "We accept that Europa did something, or failed to do something, but say that it was not by any means the sole contributory party to this accident.” Mr Leggat said that medical evidence for the defence would indicate that perhaps Flitcroft’s injuries were not quite so serious for the future as had been suggested. In the great majority of such large claims as the present one, the economic loss was the most serious factor to be considered. This was a case in which damages would be high but Flitcroft had been earning £l7 a week before the accident and was still earning that sum. Louis Amos Bennett, a surgeon, said he thought the possibility of Flitcroft developing skin cancer where his skin was now very thin, was a very remote possibility. Expressing a similar view, James Keith Davidson, a surgeon, added that in his opinion Flitcroft would be better equipped if he had his left hand amputated and an artificial wrist joint and hand fitted. This was a matter of choice for Flitcroft. Christopher Evelyn Fenwick, a consulting engineer, said he would expect a welder to unseal any empty sealed container before welding it—for his own safety and that of his collegues. Heat must cause pressure in a sealed tank. If the welder did not know for certain the tank was empty, witness would expect a welder to ask if it were empty as well as examining it himself. Witness said he thought that if there was a gallon of fuel in the tank at the Clarendon Hotel some of it would have flowed out if the bottom vent cap had been removed. One tenth of a pint of fuel, in liquid form, in a 500-gallon sealed tank would cause an explosion. Threeeights of a pint would cause a violent explosion.