Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nestlé Australia Ltd v Metri [2021] NSWCA 303 Hearing dates: 22, 23 November 2021 Date of orders: 10 December 2021 Decision date: 10 December 2021 Before: Basten JA at [1]; Leeming JA at [153]; Brereton JA at [154] Decision: (1) Dismiss the appeal by Nestlé Australia Ltd against the judgment in the Common Law Division of 7 April 2021. (2) Dismiss the cross-appeal by Toufic Metri filed on 7 July 2021. (3) Order that Nestlé Australia Ltd pay the costs of Mr Metri and Linde Material Handling Pty Ltd in this Court. Catchwords: NEGLIGENCE – breach – risk of harm – identification of risk – risk of forklift operator being dislodged while forklift in motion – risk of harm foreseeable NEGLIGENCE – breach – reasonable precautions against risk of harm – whether reasonable person in appellant's position would have taken precautions – failure to fit forklift with seatbelt or other restraint – failure to establish adequate system for communicating defects to enable diagnosis and repair NEGLIGENCE – factual causation – whether failure to communicate defect caused harm suffered by plaintiff – causation established Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5E, 5F, 5L Motor Accidents Compensation Act 1999 (NSW), ss 3B, 4; Ch 5 Workers Compensation Act 1987 (NSW), ss 151A, 151E, 151Z; Pt 5, Div 3 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 250 Cases Cited: Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 Metri v Nestlé Australia Ltd (No 2) [2021] NSWSC 518 Category: Principal judgment Parties: Nestlé Australia Ltd (Appellant) Toufic Metri (First Respondent/Cross-Appellant) Linde Material Handling Pty Ltd (Second Respondent/Cross-Respondent) Representation: Counsel: Mr G J Parker SC / Mr D O'Dowd (Appellant) Mr D Hooke SC / Mr T Hickey (First Respondent/Cross-Appellant) Mr M T McCulloch SC / Ms T A Berberian (Second Respondent/Cross-Respondent) Solicitors: HWL Ebsworth Lawyers (Appellant) Beilby Poulden Costello (First Respondent/Cross-Appellant) Moray & Agnew (Second Respondent/Cross-Respondent) File Number(s): 2021/102300 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Division Citation: [2021] NSWSC 343 Date of Decision: 7 April 2021 Before: Adamson J File Number(s): 2015/82320 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The first respondent, Mr Toufic Metri, was employed by the appellant, Nestlé Australia Ltd (Nestlé) as a picker and forklift driver. On 16 August 2012, Mr Metri suffered serious injury resulting in the amputation of his left leg below the knee when a forklift which he was operating inexplicably sped up beyond its usual speed, then suddenly decelerated, throwing Mr Metri to the ground. The forklift continued moving and ran over his left leg. The forklift was manufactured by the second respondent, Linde Material Handling Pty Ltd (Linde), and owned by Nestlé. Linde serviced and repaired the forklift pursuant to a Forklift Preventative Maintenance Agreement with Nestlé. Whenever Nestlé detected a fault in a forklift, the vehicle would be "tagged out" by Nestlé, and repairs undertaken by a Linde technician based on Nestlé's description of the fault. The forklift would then be returned to use in Nestlé's warehouse. On 10 August 2012, six days prior to Mr Metri's accident, the forklift was involved in a similar incident when it spontaneously accelerated beyond its usual speed before decelerating. The driver, who was not injured, "tagged out" the forklift and reported the incident to his Nestlé supervisor. The Linde technician, who was informed only that the forklift's "speed is playing up", tested the vehicle and, believing (erroneously) that the fault had been addressed, allowed the forklift to be returned to service on 13 August 2012. The forklift driven by Mr Metri was not fitted with a seatbelt or any other restraining device. Nestlé had previously considered whether to retrofit its forklifts with seatbelts, or to replace its fleet with vehicles fitted with seatbelts, but did not take either action. On 18 March 2015, Mr Metri commenced proceedings against Nestlé, alleging negligence on its part and claiming damages. Nestlé denied that it was liable to Mr Metri and in April 2016 brought a cross‑claim against Linde. In June 2019, Mr Metri joined Linde as a second defendant in his proceeding. On 7 April 2021, judgment was given in the Common Law Division upholding Mr Metri's claim against Nestlé, but dismissing his claim against Linde and dismissing Nestlé's cross‑claim against Linde. Nestlé appealed from the primary judge's finding that it was liable in negligence to Mr Metri and, in the alternative, sought judgment on its cross‑claim against Linde. By way of a defensive cross‑appeal, Mr Metri sought judgment on his claim against Linde if the judgment against Nestlé were to be overturned. Linde also filed a notice of contention, supporting the primary judge's conclusions in its favour on further grounds. The principal issues before this Court were whether: (1) the primary judge had identified the risk of harm at an undue level of generality, leading to a finding that the risk of harm was foreseeable; (2) a reasonable person in Nestlé's position would have taken the precautions of fitting a seatbelt or other restraint on the forklift, and of establishing a more adequate system of communicating defects in forklifts to Linde for diagnosis and repair; (3) Nestlé breached its duty of care to Mr Metri in failing to take those steps; (4) Nestlé's failure to adequately communicate the defect in the forklift to Linde caused the harm suffered by Mr Metri; and (5) Linde was liable in negligence to Mr Metri. Held by Basten JA (Leeming and Brereton JJA agreeing) dismissing the appeal and cross-appeal: Issue (1) – identification of risk of harm (1) The risk of harm was identified with sufficient specificity as the risk of a forklift operator being dislodged from the forklift while the forklift was still in motion. It was not necessary that the formulation include identification of the mechanism of the injury suffered: [83]‑[84]. Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65; Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 applied. Issue (2) – reasonable precautions (2) Nestlé was aware of the risks associated with driving a forklift without a seatbelt or other restraint and should have sought advice from Linde as to the capacity of its forklifts to be retrofitted with seatbelts, the seats replaced with a contoured cushion and the smooth seat surface eradicated: [96], [99]. (3) Nestlé's system of communicating defects in its forklifts to Linde was not sufficient to allow the Linde technician to identify and rectify those defects. In failing to establish an adequate system of communication, Nestlé failed to take reasonable precaution against the risk of harm: [103], [112], [120]-[121]. By Leeming JA: (4) It is no small thing to require a purchaser of a forklift to install seat restraints across its fleet when the manufacturer had not done so. It may be assumed that a reputable manufacturer will have considered whether or not a familiar safety device such as a seatbelt should be fitted, and only in highly unusual circumstances would the law require a purchaser to reverse the manufacturer's decision: [153]. Issue (3) – breach of duty (5) There was no formal system for communicating defects in forklifts to Linde's technicians. In many cases the informal system was sufficient but in some cases it was insufficient and the insufficiency was revealed in the present case. There was also no system for the Linde technician to report back with respect to: [103]. Nestlé breached its duty of care in this respect. (6) Given the element of breach by failing to establish an adequate system of communicating defects, it is not necessary to determine whether there was a breach in failing to fit seatbelts or other restraints: [99]. Issue (4) – causation (7) Nestlé's negligent failure to give a full account of the defect in the forklift to the Linde technician caused the harm suffered by Mr Metri. Had Nestlé given a full account of the problem, the Linde technician would not have permitted the forklift to be returned to service until the fault was identified and rectified: [126], [129], [130]. Issue (5) – liability of Linde (8) While Linde owed a duty to exercise reasonable care in carrying out its functions of diagnosing and repairing any fault with the forklift, it did not breach that duty. The Linde technician was only given limited information to identify and address the defect, and it was not contended that Linde was responsible for establishing a more adequate system of communication: [139], [143], [147]. (9) Linde did not owe a duty to advise Nestlé in relation to additional safety precautions with respect to Nestlé's current fleet of forklifts, or to advise it to consider upgrading the safety of its fleet. Even if such advice had been sought and given, Nestlé would not have followed that advice, and hence Linde's failure to so advise would not have been causative of the harm suffered by Mr Metri: [148]-[149]. Judgment 1. BASTEN JA: In 2012 Toufic Metri was employed by Nestlé Australia Ltd (Nestlé) as a picker and forklift driver at its Arndell Park premises in western Sydney. On 16 August 2012 Mr Metri was operating a vehicle known as a "reach forklift" when the vehicle changed speed erratically, throwing him from the driver's seat onto the ground in front of the vehicle, which then ran over his left leg. Mr Metri suffered a serious injury resulting in amputation of his left leg below the knee. 2. In 2015, Mr Metri commenced proceedings against Nestlé, alleging negligence on its part and claiming damages. The forklifts were manufactured and maintained by Linde Material Handling Pty Ltd (Linde), an Australian subsidiary of an international engineering and vehicle manufacturing business. Nestlé denied liability, but also brought a cross-claim joining Linde in the proceedings. More than four years after he commenced proceedings, and more than three years after Linde was joined as a cross-defendant, Mr Metri joined Linde as a second defendant in his proceeding. 3. The proceedings in the Common Law Division appear to have had a chequered history. Although commenced on 18 March 2015, the hearing did not take place until March 2021. The material before this Court provides no explanation for that delay. However, following an eight day hearing in March 2021, the trial judge, Adamson J, with commendable expedition handed down judgment two weeks later. [1] The judgment upheld Mr Metri's claim against Nestlé, but dismissed his claim against Linde and dismissed the cross-claim brought by Nestlé against Linde. The judgment of 7 April 2021 did not produce a final calculation of damages, but did include a table which permitted calculation by the parties of the outstanding items. Those calculations resulted in an award of damages of a little more than $2.9 million. In a subsequent judgment, [2] the judge made costs orders in favour of Mr Metri. Neither the amount of the judgment nor the costs orders are challenged on this appeal, except consequentially. 4. The appeal brought by Nestlé is directed solely to the findings of liability, challenging the finding of liability on the part of Nestlé to Mr Metri and, in the alternative, seeking judgment on the cross-claim against Linde. The notice of appeal was filed on 22 June 2021. On 7 July 2021 Mr Metri filed a defensive cross-appeal seeking judgment on his claim against Linde in the event that his judgment against Nestlé was overturned. Finally, on 20 July 2021 Linde, which had been entirely successful in resisting the claims against it at trial, filed a notice of contention, supporting the judge's conclusions in its favour on four different grounds. 5. Mr Metri's claim against Nestlé at trial identified four particulars of negligence, namely a failure to take any of three precautions identified as, (i) adopting a system of maintenance and replacement of forklifts in accordance with Linde's recommendations; (ii) implementing a system to allow the forklift operator's description of a fault to be communicated to the technician carrying out the repairs; and (iii) fitting the operator's seat with a seatbelt or other means of minimising the risk of the driver being dislodged from the vehicle. [3] The judge accepted all of these as reasonable precautions, none of which were taken. She further held that the consequent breaches of duty materially contributed to the harm suffered by Mr Metri. 6. Nestlé challenged each step in the judge's reasoning on liability. It also challenged the finding that Linde bore no part of the responsibility for the plaintiff's injury. As will be explained below, Nestlé's challenge with respect to its own liability should be rejected, as should its challenge to the absence of liability on the part of Linde. The cross-appeal by Mr Metri can be dismissed. He was agnostic as to which party bore responsibility for the damages and will retain his judgment against Nestlé. Governing law 1. The proposition that the plaintiff was agnostic as to which of his employer and a third party would be responsible for payment of damages reveals an important underlying aspect to the legal basis of the claim. Had it been a workplace injury claim, the quantum of damages recoverable from his employer would have been constrained by Pt 5 of the Workers Compensation Act 1987 (NSW). He would then have had a powerful interest in ascribing responsibility to Linde, and where liability was to be apportioned, maximising its share of the responsibility. 2. The statement of claim identified the forklift as a motor vehicle for the purposes of the Motor Accidents Compensation Act 1999 (NSW) and, the vehicle being unregistered, Nestlé was the owner of the vehicle pursuant to s 4(1)(b) of that Act. Section 3B(1)(b) states that Chs 3-6 of the Act apply in respect of an injury that results from the operation of a motor vehicle that gives rise to a work injury claim. The injury gives rise to a work injury claim if it is "an injury to a worker caused by the negligence or other tort of the worker's employer": s 3B(3)(b). The exclusion of the operation of the Workers Compensation Act is achieved by excluding "motor accident damages" from the definition of "work injury damages". [4] There is also an exclusion from entitlement to further compensation under the Workers Compensation Act where a person recovers "motor accident damages". [5] Finally, s 151E(2) in the Workers Compensation Act states that Pt 5, Div 3, which regulates awards of damages to injured workers, does not apply to damages to which Ch 5 of the Motor Accidents Compensation Act applies. 3. The next step in the statutory scheme turns on the operation of the Civil Liability Act 2002 (NSW). Various provisions of the Civil Liability Act do not apply to awards of damages to which Ch 5 of the Motor Accidents Compensation Act applies. [6] However, there are exceptions contained in s 3B(2), which, relevantly for present purposes, allows Pt 1A (Negligence), Divs 1-4 and 8, to apply to motor accidents. Importantly for present purposes, Div 2 (Duty of care) and Div 3 (Causation) were engaged, as was Div 8 (Contributory negligence). 4. Those principles were well understood by the parties and applied by the trial judge. It followed that, even if an apportionment of damages between the employer and a third party were required, the complex provisions of s 151Z of the Workers Compensation Act would not be engaged. Further, as there is no challenge to the assessment of damages, there is no need to consider the operation of Ch 5 of the Motor Accidents Compensation Act. Factual background 1. As Nestlé and Linde were keen to emphasise, the precise behaviour of the forklift which resulted in the plaintiff being dislodged from his seat and injured was never identified. Had the circumstances been unprecedented, the plaintiff might have faced significant difficulties in establishing negligence on the part of his employer. However, a central element in his case was that, far from being unprecedented, the events which resulted in his injury replicated an earlier incident of similar erratic behaviour which had occurred only six days before his accident, which had been reported to Nestlé and had been investigated by Linde. A central factual element therefore turned on the investigations of the earlier incident, and the system of communication between Nestlé and Linde. 2. In these circumstances, it is convenient to address the factual background in the following order: 1. the nature and operation of the forklift; 2. the circumstances of the accident; 3. the circumstances of the earlier incident, and 4. the systems operated by Nestlé and Linde. (a) the nature and operation of the forklift 1. The evidence described two kinds of forklift, namely a counterbalance forklift and a reach forklift. The former (counterbalance) is the one commonly seen operating in open areas. The "forks" or tines are at the front of the vehicle, the driver faces the front and the body of the vehicle is behind the driver. The vehicles are equipped with tyres and are capable of navigating outdoor sites. By contrast, the reach forklifts, one of which was the vehicle involved in the present case, have the operator sitting with the tines on his or her right, with a bulky mast up and down which the fork carriage moves. An example is shown in the following picture. 1. The reach forklift is designed for indoor use and has three load bearing wheels. As the operator faces the controls, the mast and fork carriage are to the right and when travelling, the vehicle will progress to the operator's left. The single wheel sits under the operator and is described as the drive wheel. It can be turned by use of the small steering wheel in front of the operator. The foot pedals and the operator's controls are shown in the following three pictures. 1. The operator's seat is to be seen in the following picture. 1. The height of the operator's seat (which is adjustable), when in the middle of the range, is approximately one metre above ground level. There is one step up from the ground to the operator's cabin. As can be seen, there is a skeletal metal rail around the cabin, but it is not closed in on any side. The operator steps in from the "front" of the vehicle (that is, opposite the forks and mast). 2. It follows from this configuration that when driving forward down an aisle in the warehouse, as the plaintiff was at the time of the accident, he was looking over his left shoulder in the direction of travel. That was also the direction in which he fell and the direction in which the vehicle was moving when it trapped his left leg. 3. The vehicle was battery operated. When unladen (as it was at the time of the accident) it weighed three tonnes. Its speed was regulated so that it could not exceed 12.5km/h, which is approximately double a fast walking speed for a person. There is one other feature which should be noted, although it appears to have played no part in the proceedings at trial: the seat was fitted with a safety switch which was activated if the operator left the seat. It appears that it brought the vehicle to a stop, but not abruptly. The fact that Mr Metri was run over after he was dislodged was not attributed by any party to a failure of the safety switch in the seat. 4. The machine in question had the designation "432". It was described as a model R16HD forklift. There were in evidence "operating instructions" for Linde electric reach trucks including model R16HDS, which was assumed to have the same features as vehicle 432. The document was undated. The technical description of the vehicle in the operating instructions identified the braking systems in the following terms: [7] "The trucks have three independent braking systems. 1. Hydraulic footbrake operating on drive and load wheels. 2. Parking brake operating on drive motor. 3. Regenerative electric braking occurs automatically when either accelerator demand is reduced or the opposite direction of travel is selected." 1. Tests were carried out by a consultant engineer, John Hickey, on 3 December 2012, a report of which was included in the joint expert engineering report prepared on 11 February 2020. The tests were carried out on two vehicles, one being forklift 432. The braking test for the seat switch brake, which "by design, activates only the regenerative braking system", indicated that, at a maximum speed of 12.5km/h (or 3.5m/sec) the stopping distance for the vehicle was between 4.1 and 5 metres, with corresponding retardation rates. Clearly the device would not have prevented injury, once the plaintiff left the operator's seat. The hydraulically operated footbrake, on the other hand, permitted a stopping distance of between 1 and 1.45 metres. There was an issue at trial as to whether the plaintiff activated the footbrake. (b) the circumstances of the accident 1. The earliest record of the event was prepared by Brett Lloyd, who attended the scene of the accident and sent an email to David Neighbour reporting. As described by the trial judge, Mr Lloyd was the line manager who was the plaintiff's direct supervisor for about a year before the accident. [8] Mr Neighbour was the distribution centre manager with responsibility for the physical operations and equipment at the Arndell Park premises. [9] 2. In his email to Mr Neighbour, Mr Lloyd recorded that by the time he reached him, the plaintiff was already in shock from the severe pain in his left leg, but noted that there was very little blood loss. Mr Lloyd continued: "I had asked Toufic to explain what had happened and he said 'the forklift just took off, I have never seen a high reach go as fast as this one'. I asked him to explain how he fell [off] the forklift, he replied 'the forklift sped up and he could not stop, it then felt like the brakes come on throwing him [off] balance and out of the forklift seat. As he fell the forklift caught his leg pushing him to the floor'. I asked if he remembers anything else, he replied 'No'. Toufic fell deeper into shock and started shacking [shaking?] profusely …." 1. This statement suggested an unexplained increase in speed to a speed faster than the plaintiff had experienced in many years working with the forklifts, followed by a braking feeling, but no indication that he had applied brakes although that might be implied from the statement that he "could not stop". 2. Mr Neighbour visited the plaintiff in hospital the following day and prepared notes headed "Toufic Metri – Statement 17/08/2012 14:45pm". They recorded that they had been prepared "post hospital visit". The notes (in typed form) read as follows: "• Said hello and normal pleasantries • Toufic expressed a wish to talk about incident • Toufic was issued a manual pick and was travelling along the front laneway to isle [aisle?] AC to complete the pick. (Travelling empty). • Toufic described the forklift un-accountably accelerating to crazy speed he hasn't seen before • Toufic applied the brake (this was in question so we re-confirmed this 3 times to be sure). He is adamant he applied the brake himself. • There was no mention of a skid (he couldn't recall) • The forklift thew [sic] me off • The forklift ran over my foot". 1. Mr Lloyd's note to Mr Neighbour identified the time of the call which he had received over the two-way radio seeking assistance at about 1:30pm. That call must have been virtually contemporaneous with the plaintiff's accident. An incident investigation form was completed on 17 August 2012 and signed by Mr Lloyd as the person in charge of the work area at the time. In addition to the description in Mr Lloyd's own email to Mr Neighbour, the investigation report recorded that the plaintiff had been called at 9:30am to be offered four hours work to commence at 11:20am. He had reported shortly after 11am: he had therefore been at work for two hours at the time of the incident. The statement also indicated that no "pre-operational forklift checklist was found." However, checklists for the previous three days were in evidence and none had noted any defect. 2. The plaintiff gave a brief description in a statutory declaration attached to a compensation claim form dated 10 October 2012. The plaintiff, then in hospital, gave a description of the accident which was taken down by his daughter, and appeared in the claim form as follows: "While doing normal duties at work driving forklift, the fork accelerated out of control by itself more than the standard limit which is walking pace. The forklift surged and jolted in result to application of [brakes]. The forklift failed to automatically stop despite me being ejected/thrown from the forklift seat." 1. Troy Tabone, the facilities manager at the site, attended the accident with Mr Lloyd. He also prepared an email report to Mr Neighbour the following morning, Friday 17 August 2012 at 11:12am. Mr Tabone and another forklift driver, Jason Connell, appeared to be those primarily responsible for making the plaintiff comfortable while awaiting the ambulance. He noted that Mr Lloyd "went straight to the [forklift] and hit the emergency stop button". Mr Tabone then described the plaintiff as "shaking and in shock" at which point he took an emergency blanket from the first aid kit he had brought and placed it on top of the plaintiff. He then recorded: "Toufic was saying it 'it took off the fork took off'." Although the incident investigation form suggested that there were investigations being carried out by the police and WorkCover, no statement obtained by either of these bodies was relied on in evidence. (It will be necessary to return to Mr Connell's evidence shortly, as he was the driver of the same forklift a week earlier when a similar problem had arisen, but he had not been injured.) In a statement dated 12 November 2012, Mr Connell told an investigator that while he was treating the plaintiff the plaintiff had said to him, "the forklift just went crazy." 2. The plaintiff spoke to an insurance investigator on 29 October 2012 when he was still in hospital. He described the operation of the forklift in the following terms: [10] "The drivers left side faces the back of the forklift the right side faces the blades. The seat does not have a seat belt or railing to keep you within the cabin. When using the electric forklift, you push down on the accelerator, when you want to slow down you lift your foot up off the accelerator pedal. If lifting your foot off the accelerator the forklift slows down to a stop. If you push on the brake pedal the forklift stops straight away, there is no skid, it just stops. It has a safety mechanism in the seat, if you lift your bottom up from the seat the forklift stops straight away [and do not move until you sit on it]." He described the incident in the following terms: "28. I was going along between the rack and dock, I pushed the accelerator with my right foot to [move] the forklift to the full speed which is walking pace, it can't go any faster than that. As I was accelerating I noticed the forklift accelerated to a speed a lot higher than normal, I would say it was doing about triple the speed. I could hear a whistling sort of noise from the motor. 29. As I noticed the forklift was going too fast I lifted my foot off the accelerator but the forklift didn't slow down as it should have. I had travelled about 15 to 25 metres. I could see two other workers working in an aisle, Paul Walters and another guy called Ian. With the forklift going so fast. I had to make a split second decision. I was worried because of the speed I might run into [any other driver] if they came out of the aisle, and knew that if I got to my aisle I would not be able to turn into it without the forklift tipping over. 30. I decided to apply the brake. As soon as I put my right foot on the brake pedal the forklift … ejected me off the forklift …. I put my left hand out to protect me from the fall. I don't remember how I hit the ground. I just remember feeling the worst pain I have ever felt in my life. My left arm went under my back. The forklift had kept moving towards me and went over my left leg,…." 1. The language at par 30 is ambiguous as to whether he thought the forklift had actually responded to his braking or whether it had responded independently. 2. Mr Lloyd gave a statement to the investigator on 8 November 2012 in which he recounted the conversation with the plaintiff in a passage which was not read, presumably because the terms were similar to those in his email to Mr Neighbour, which was in evidence. 3. John William Hickey was engaged by Nestlé's lawyers shortly after the accident to investigate the circumstances. He attended at Nestlé's premises on 28 August 2012 and spoke to various persons, including Mr Connell. Mr Hickey collected a volume of documentary material, to some of which reference will be made below, but does not appear to have interviewed the key witnesses. 4. Years later, the plaintiff signed an evidentiary statement, dated 4 October 2017 (almost two years after commencing proceedings) which included the following propositions. First, he described the safety mechanism known as a "dead man's brake" stating: [11] "If you lift your bottom up from the seat the forklift is supposed to stop … and will not move until you sit on it again." 1. The word omitted has been crossed out by hand in the copy before this Court, and read "immediately". The index to the appeal book did not indicate any evidential rulings with respect to that statement, although markings elsewhere suggested that some sentences had not been pressed. It may be that the word "immediately" was not pressed. However, as noted above, there appears to have been no evidence as to whether the seat braking mechanism was faulty, although that is an implication from Mr Metri's evidence. 2. His description of the actual incident of being dislodged from the vehicle is more discursive than other descriptions and has the air of preparation by a solicitor. In any event, so far as the material was read, it stated: "49. I had to travel over an industrial pavement spacer along the way. 50. I became immediately concerned. Ordinarily, the course for slowing a forklift is to remove your foot from the accelerator, not to immediately apply the brake. Having removed my foot from the accelerator and noticed that the forklift was not slowing down, but was surging at speed, I then decided immediately to apply the brake. I applied the brake out of concern at the speed the forklift was doing …. 51. Almost as soon as I put my right foot on the brake pedal, the forklift ejected me off it." 1. Subsequent statements by the plaintiff referring to the incident were largely directed to denying that he could have been driving with his right foot on the left pedal, and therefore had turned sideways to face the direction the vehicle was moving. 2. The judge's reading of the evidentiary statement of 4 October 2017 was that the plaintiff had been "about to apply his right foot to the brake but that he had come off the forklift before he had in fact applied it." [12] That reading was open, although there was a degree of ambiguity about it. Mr Metri resolved the ambiguity when cross-examined by senior counsel for Nestlé in the following exchange: [13] "Q. So you then used your right foot and applied it to the brake? A. I was going to apply it. I didn't press it. Because the fork brake engaged by themselves. The fork braked by itself. I didn't brake it. I was, I was going to, my intention was to brake it, but I didn't apply pressure on the brake pedal. It, it, it was braking by itself. Q. So was it slowing down even though you hadn't applied the brake? A. No, no, no, no. By the time I decided to apply the brake I was close to people. There was a wall, there was two people preparing to cart in. So then with that speed I decided to apply the pedal, because it's either I hit someone or I hit the wall. So I moved my right foot to apply the brake. The fork engaged the brake by itself." 1. The trial judge concluded: "[142] I am satisfied that, after the forklift sped up, the plaintiff applied the brake to slow it down. I do not accept the later versions which are inconsistent with versions which the plaintiff gave much closer to the time of the incident." 1. The only unequivocal statement that he had actually applied the brake, was the note prepared by Mr Neighbour after visiting the plaintiff in hospital. The language is clearly a summary or a paraphrase; nobody asked the plaintiff to sign the document. The proposition that he was asked to confirm it three times suggested that the Nestlé managers were anxious to get that statement from him. It was not what he had said to Mr Lloyd at the time; nor was it what he had said in his statement to the investigator in October 2012, to which the trial judge did not refer in this context. [14] However, nothing turns on the factual finding. (c) the circumstances of the earlier incident 1. The service records for forklift 432, tendered by Nestlé, revealed that the vehicle had required repairs by Linde on eight occasions in the nine months preceding the accident. It is necessary to have regard to two particular entries, but before doing so two general comments may be made. 2. First, although there was a maintenance agreement between Nestlé and Linde which required quarterly servicing of vehicles, the only scheduled service which occurred in the nine months preceding the accident was a thousand-hour service carried out in early February 2012, when the meter on the vehicle had logged 16,544 hours. While there were statements in the evidence that the forklifts were in operation throughout the three hour shifts, seven days a week, in fact vehicle 432 appears to have averaged seven hours per day in the six months prior to the accident. 3. Secondly, the service history listings maintained by Linde are an important source of information as to the communications between Nestlé and Linde. They will be revisited when the issue of a systemic failing in communications is addressed below. 4. The first of the two entries of particular significance occurred on 1 March 2012. The information supplied to Linde was "no traction book light flashing". These appear to be two separate complaints. There was a warning light on the operator's display which showed if the traction controller had failed a "self test". There was also a warning light, showing an open book, indicating that a service was due. [15] Neither appeared to have any direct relevance to the cause of the accident. Although the service was logged as having been carried out on 6 February, the entry for 1 March showed the same figure on the hour meter as at 6 February. In any event, the significance of the entry relates to the response apparently noted by the same mechanic (N15) who dealt with the vehicle for most of the incidents recorded in the service history, Mr Carlos Raad. The record did not show any work done on 1 March, rather it recorded: "Diagnose truck, found LDC power module playing up occasionally resulting in truck complete shut down and book light flashing. Explain fault to customer, organise quotation on replacing module. Customer not proceeding with this job 7.7.12 since fault happens very rarely and due to cost." The last sentence was apparently written at a later date. 1. In this account, "LDC" refers to the Linde digital computer, being a module which controlled the electric motor. When diagnosing faults or defects, the technician had a machine, colloquially called the "truck doctor", which he plugged into the LDC of the vehicle under investigation. It had specific codes for particular faults, none of which involved excessive speed. However, no explanation was provided as to the reference to the LDC power module "playing up occasionally". Although there appears to have been conversation between Mr Raad and someone at Nestlé, there is no documentary record in the evidence to which this Court was taken of a decision not to replace the power module on or before 7 July 2012. 2. Jon Gorman, who was then manager for technical support and national training at Linde and responsible for fleet maintenance, gave evidence that the cost of replacing the LDC control module was in the order of $1,000. [16] Following the work recorded on 1 March 2012, he said he had organised a repair quotation, but Nestlé decided not to proceed; he assumed, due to cost. [17] In further cross-examination by senior counsel for Nestlé, Mr Gorman stated that the failure of the LDC would not cause the truck to accelerate or to brake suddenly. However, his basis for those opinions was not explored: he had no qualifications as an engineer, or as a computer expert, or in IT. [18] 3. Two witnesses were called for Nestlé, but neither gave evidence about this matter. 4. The second incident of importance was an incident which occurred six days before the plaintiff's accident, namely on 10 August 2012, and involved the same vehicle 432, then being driven by Jason Connell. The first recorded statement of Mr Connell was a statement to the investigator made on 12 November 2012. He described his history with the vehicle in the following terms: "10. I use high reach forklift #432 every day. I had issues with this forklift since February 2012. The first issue in February 2012 was when the forklift had an issue with going slow. The forklift wasn't tagged out because the mechanic was onslte and I took it straight down to him and he fixed it. 11. On the 29th May 2012 I had an issue related to the forklift not holding brake when it is not being accelerated. The forklift is meant to hold its position if the forward or reverse pedals aren't depressed. I tagged the forklift out and it was repaired. 12. On the 10th August 2012 I was using the forklift during the day. I don't know if any of the nightshift or afternoon shift operators had any issues with it. 13. I was driving down an aisle on the 10th August 2012. I was driving the forklift along the aisle, I was seated in the driver's seat with my left foot on the accelerator pedal to go to my left. My foot was holding the pedal to the floor. It could not be pushed any further. I was at the normal cruising speed. The forklift all of a sudden sped up more than it normally does. Then without warning the forklift braked, it was like the handbrake kicked in and then it quickly released. This nearly threw me off the forklift. It then kept on cruising at its normal speed. 14. I immediately stopped the forklift, using the brake. Once I had stopped it I took it back to the forklift parking area and tagged out the forklift for repairs." 1. Mr Connell also gave a statement on 10 December 2018 which continued his account with the following: "3. After the events which I have described in paragraph 13 of my previous statement occurred, I immediately returned the forklift to the forklift parking area by driving it carefully, mindful of the events which had just occurred. 4. When I arrived at the parking area I parked the machine and 'tagged-out' the forklift by completing a tag-out record which I filled out by writing the words 'Speed Sensor Issue' on the tag. 5. I then placed a tag on the forklift itself in accordance with procedure. 6. I then sought out and spoke to my supervisor, Mr Brett Lloyd. I said to Brett words to the following effect: 'this machine has a problem. When I was driving it I was heading with my left foot on the pedal just cruising along when all of a sudden the machine sped up. It started going much faster than normal which startled me. Then all of a sudden the brakes came on and pulsed which threw me to the side a little before they quickly released. The machine then kept on cruising at its normal speed. I decided to bring it straight back here and tag it out.' 7. Mr Lloyd said words to the effect 'Thanks Jason'. 8. The next time I saw the forklift was some days later when it was parked in the forklift parking area but by this time the tag had already been removed and it was again available for operation." 1. Mr Lloyd did not address this conversation in his statement to the investigator of 8 November 2012. He did, however, address it in his evidentiary statement of 7 December 2018, by then more than six years after the events in question. That statement relevantly read as follows: "4. On 10 August, 2012, I was on shift as Line Manager and as such responsible for the labour on the floor of the warehouse 5. At some time during that shift I recall that Mr Jason Connell approached me. I am not sure now whether I was actually in the office or out on the floor, but he said words to the effect that: 'My machine is playing up and I have tagged it out'. 6. At the time, Jason had been assigned High Reach Forklift #432. In that conversation, I recall that Jason also gave me a more detailed description of what he had experienced with machine #432 to cause him to park and tag-out the machine, although I cannot now remember exactly what words he used. I recall that the effect of the conversation was as follows; 'The machine sped up for no reason faster than normal, and suddenly braked, giving me a real fright.' 7. I recall that Jason provided me with a more lengthy and detailed description, the words of which I now cannot recall. 8. Upon hearing this description provided by Jason, I recall being satisfied that it was appropriate to tag-out the machine and I also recall then thinking that it would require the attention of the Linde Technician, Mr Carlos Raad. 9. I then said to Jason: 'Thanks Jason.'" 1. Mr Lloyd then asserted a "invariable practice" of the Nestlé supervisor reporting the nature of the problem to the Linde technician. He further asserted that on 10 August 2012 he had sought out Mr Raad and had a conversation with him in relation to the information provided by Mr Connell. That description was inaccurate, because Mr Raad was not at work on that day. 2. Importantly for present purposes, there was a reasonably close similarity in the description given by Mr Connell of what happened to him on 10 August and the description given by the plaintiff of his experience with the same vehicle six days later. Mr Connell gave evidence at trial, but was not cross-examined by counsel for Nestlé. 3. Mr Connell was cross-examined by counsel for Linde. He was asked if there were times when a battery sensor became disconnected and would cause the forklift to slow down. He said the vehicle would be "shut down", [19] but that never happened while he was driving it. He agreed that there were expansion joints between some of the concrete floor slabs in the warehouse, and it was suggested that the sensor might disconnect when driving over an expansion joint. He said that he had never seen that happen. [20] He was taken through his entry with respect to 10 August 2012 in the log-out book and basically confirmed his description of the vehicle speeding up beyond the normal driving speed (which he had identified as about 10km/h) and then behaving as if the brakes pulsed although he did not activate the brake pedal himself. [21] (d) the systems operated by Nestlé and Linde 1. As noted above, forklift 432 was one of a number of similar vehicles which were first leased from Linde and then purchased by Nestlé. As at August 2012, Nestlé had an agreement with Linde described as the "Forklift Preventative Maintenance Agreement", signed on behalf of Linde on 31 November 2011. Although the agreement provided that preventative maintenance would be effected in accordance with a servicing schedule, it is clear that the agreement extended to the carrying out of repairs. The agreement stated: "Repair and maintenance history is available on request from Linde's forklift service management system." The agreement said nothing about any mechanism for communicating a need for repairs. However, the service history in evidence reflected the hourly labour and travel rates provided for in the agreement. 1. The evidence as to how the system for repairs operated in practice was uncontroversial and was summarised by the trial judge in the following passage: "[74] If a fault was detected in a forklift, the usual practice was for the operator to apply a tag to the machine so that it could not be used until the fault was rectified. On occasions, the forklift would also be 'locked out' to prevent its use. The details of forklifts which had been tagged or locked out would be entered in a spiral notebook which was kept in a locked cabinet in the office where the forklift drivers would enter to obtain their work allocation for each shift. Each page had a printed grid with columns labelled as follows: Date Item tagged out Reason Informed supervisor Y/N Lock or Tag Lock # Name Signature Tag Removed Sign + Date [75] The final column was required to be completed by a Nestlé employee. [76] In addition to tagging out the forklift, its driver would generally have a conversation with the shift supervisor to elaborate on the issue which had caused the driver to tag the machine out, thereby conveying information beyond that which was recorded in the tag-out book. [77] Tagged or locked out machines would be repaired or serviced by mechanics employed by Linde and then, when repaired, would be returned to service. According to Mr Neighbour and Mr Lloyd, the supervisor would be expected to speak to the Linde technician to provide greater detail of the particular nature of the fault identified by the forklift operator. There does not appear to have been any formal procedure or mechanism for this to occur. The evidence does not suggest that the technician was privy to the contents of the tag-out book and the Linde service history document recorded only a brief description of the issue with the forklift. [78] Mr Raad said in his evidentiary statement that he usually spoke to 'a supervisor at Nestlé' before working on any of the forklifts. He identified the persons to whom he spoke as being either Tony (which I take to be a reference to Mr Bilby) or, if he was not available, Troy (which I take to be a reference to Mr Tabone). He said that he would not usually have spoken to Mr Lloyd about technical issues relating to a forklift as Mr Lloyd was 'operational in the warehouse' and, as far as Mr Raad was concerned, 'not looking after the forklifts'. [79] Mr Neighbour also said that if the Linde technician needed further clarification of the issue, the technician would discuss this with the forklift operator directly." 1. Mr Raad was the Linde technician who carried out all the relevant repairs on vehicle 432. (He was identified in Linde's records as "N15", a designation which he expressly accepted referred to him. [22] ) 2. Nestlé kept a small spiral book, partly with printed headings and columns and partly unprinted, which gave details of the date on which a vehicle was "tagged out", the name and signature of the employee who tagged the vehicle out, together with a final heading "Tag Removed – Sign+Date". In the pages in evidence, the final column had been completed in only one of about 20 entries (and that one was undated). 3. The reasons for tagging-out, which appear to have been conveyed to Linde when the technician was called out, were brief. Thus, with respect to the entry for vehicle 432 on 29 May 2012, the reason, read, "Rolling forward hand/brake". The Linde service history entry for that date identified the description as "truck rolling forward". 4. There is a further entry for 29 February 2012 which, in Nestlé's book, read, "not driving, no forward/back". There is no entry in Linde's record for 29 February, but there is an entry for 1 March 2012 which reads "No traction book light flash", which fills the room available under the heading "description" for the job. 5. These somewhat cryptic entries, which appear to reflect the tag-out reasons contained on the tag, are generally consistent with the brief instructions recorded in the service history. Of the eight entries identified above in relation to the service history for vehicle 432, the brief description in Linde's records were "seat adjuster broken" (07/11/2011); "repair damaged battery tray" (13/01/2012); "no traction book light flash" (01/03/2012); "truck rolling forward" (29/05/2012); "RF unit bracket broken" (21/06/2012); "slow drive on reverse" (23/07/2012); and "machines speed is playing up" (13/08/2012). 6. The last entry related to the tag-out created by Mr Connell on 10 August: there was no explanation as to the delay of three days before a call was made to Linde, but it included a weekend. 7. Mr Raad's evidence describe the system at Linde, which involved a device in his mechanic's vehicle giving details of the jobs he was required to attend. As the calls would frequently go out at a time when he was engaged on another job, he also got a text message. To carry out work, he would complete what other work he had in hand and drive to the Arndell Park premises of Nestlé. Tagged out vehicles were located in a part of the yard near the administrative offices of Nestlé. How often Mr Raad would speak to the operator who signed the tag-out book is unclear. There is no evidence in the Linde service history that he obtained further information from the operators, who would not necessarily have been on shift when he attended. There was no system for Nestlé supervisors to record any information beyond that in the tag-out record. 8. Mr Raad was cross-examined by counsel for Nestlé as to his method of operating, specifically with reference to the repairs undertaken on 13 August. He was asked about conversations he may have had with the supervisors at Nestlé. Many of the questions were imprecise and the answers non-committal. For example, he was asked: [23] "Q. But you would have discussions with Mr Lloyd from time to time? A. Possible, possible." 1. That line of questioning continued: "Q. But what I was really getting at was that you didn't rely on what was told to you by the Nestle people do [sic to?] diagnose the fault that you were working on in the machine, correct? A. Okay, what I'm trying to say here is that usually what the supervisors onsite and the, the staff, the, what they tell me doesn't have much, much technical value, so it's, it's more like to direct me in what direction I need to go, more like technically valuable. … Q. In paragraph 17 [of his evidentiary statement] you say you have no recollection of speaking to Mr Lloyd and that remains the position today, correct? You still have no recollection of having spoken to him on this occasion? A. I'm, I'm, I'm friends with all of the guys onsite, I, like, I, I do speak to all of them. Q. Sure. A. But yeah, not, not in this case. I don't remember it. Q. I want to suggest to you that at about this time on 13 August when you went out to repair this truck on this occasion, you did have a conversation with Mr Lloyd and you just don't now recall it. Do you agree with that or disagree with that? A. I might have spoken to him. Probably not about forklifts." 1. The conversation that Mr Lloyd stated he had had, setting out the detail of Mr Connell's complaint, was put to Mr Raad, but he did not remember Mr Lloyd saying those words to him. He was asked three times and said it was "possible", but he did not remember it. The final answer was as follows: [24] "Q. It's that sort of conversation that the people at Nestle would have with you in relation to the operation of the machines that you were to fix, correct? A. Correct." Little weight could be placed on the last exchange, if the inference sought was that important information as to the nature of the operation was, either on 13 August 2012 or more generally, conveyed orally to Mr Raad. 1. In cross-examination by counsel for the plaintiff, Mr Raad was asked: [25] "Q. Yes, so if in fact someone said to you that the machine was going faster than they had been used to, that would be a very unusual circumstance, as I think you say in your statement, is that not correct? A. Correct. Q. In fact, you'd not experienced that in your years as a technician? A. Correct, never seen it. Q. Had that occurred, had that in fact been what was written on the tagout, let us say the tagout said, 'Machine going faster than normal', as simple as that, that would have been regarded by you as something extremely unusual, wouldn't it? A. The way I understand is that normal the 12 ks or, or whatever and then the machine is slowing to 2.5, then picking up, so, so they say, like – so it should be like at, at 12 or at 10. Q. If it was suggested that the machine went above the speed that it was programmed to do, whatever that is, 12 or 10 or whatever, that would be regarded by you as highly unusual, wouldn't it? A. Correct, I've never seen it." 1. Mr Raad then agreed that he would have run the truck doctor on it but that as the truck doctor had no code for a machine going over the programmed speed, he would need to refer the matter back to head office. He agreed that he would drive it and then go to head office. [26] The cross-examination continued: [27] "Q. You certainly wouldn't let it go back into service again if that fault was undetected by you? If you couldn't find the fault and remedy it, you wouldn't let it go back into service, would you? It's too dangerous? A. So, so if I can't find, find it in the diagnosis and I can't replicate it myself, I wouldn't take it back to service, is this the question? Q. Yes. A. I probably would inform the, the site manager that I can't find any problem with it. Q. Might that have happened on this occasion, that you understood what the problem was and didn't notify the site manager? A. No, on this occasion I – if you're referring to that job, I did fix it. I, I did fix what was presented in front of me. … Okay, so in this occasion I did, I did repair the, the battery locking sensor and I did calibrate and repair the, the reach sensor. Both of these sensors, like, the battery locking sensor puts it into turtle mode, if it's playing up. Q. Yes. You say you don't rely upon the tagout or what was described on the tagout in any way at all, you don't even read it, do you? A. No, no, no, I'm saying that it doesn't have much technical value, so I will do my own diagnosis on the machine and my own driving. … Q. Well, exactly, so you don't know in what way the speed was playing up, do you, you— A. Yeah that, yeah that means to me it's going into turtle mode and then speeding up again." 1. Other evidence explained that "turtle mode" was about 2.5km/h and it was a default setting if there were a problem with the vehicle. It did not go into turtle mode abruptly, but gradually. It is clear that, from the information supplied to Mr Raad when testing the vehicle on 13 August 2012, he did not understand the problem which had been experienced by Mr Connell. It is most unlikely that, had Mr Lloyd told him of such an unusual event, he would not have made a note of it. Accordingly the available inference was that no one at Nestlé told him exactly what the problem was. 2. It will be necessary shortly to return to the question of what Mr Raad was told which was the subject of the first ground of appeal. 3. The other available inference from the evidence, including that of Mr Raad, was that at least some aberrant behaviour on the part of the vehicle would not be capable of diagnosis by the truck doctor. If in fact the vehicles reached a speed above the programmed maximum, it appears that the truck doctor would not have been able to diagnose that fault. Both Nestlé and Linde relied upon the proposition that the cause of the vehicle behaving as described by both Mr Connell and the plaintiff had not been identified. Accordingly, there was no basis to find that either of them, let alone both, liable in negligence to the plaintiff. Grounds of appeal 1. It is convenient to deal with the reasoning of the trial judge by reference to the specific grounds of the appeal. 2. Section 5B of the Civil Liability Act 2002 (NSW) identifies, in negative terms, when a person may be found negligent (that is in breach of a duty of care) in failing to take precautions against a risk of harm. Section 5B(1) identifies two aspects of a risk of harm that must be satisfied, namely that it is a risk of which the defendant knew or ought to have known, and that the risk was not insignificant. Secondly, s 5B(1) describes the precautions as those which a reasonable person in the position of the defendant would have taken. Section 5B(2) identifies factors relevant to considering whether a reasonable person would have taken such precautions. The section thus provides a structure for the analysis of breach of duty by requiring the identification of, first, the relevant risk of harm and, secondly, relevant precautions. The reasons of the trial judge conformed to this structure. 3. The trial judge identified the risk of harm as being "the risk of a forklift operator being dislodged from the forklift while the forklift is still in motion": at [211]. The judge continued: "… Factors such as the configuration of the forklift, which is open to the side opposite the tines; the lack of a restraining device or any significant contouring on the seat; and the orientation of the driver, who sits perpendicular to the direction of travel, mean that the risk is plainly foreseeable. Any sudden or unexpected change in the speed of the forklift will give rise to this risk of harm. Such a change may occur because of a malfunction in the brakes or speed controls of the forklift but may also come about as a result of a collision between the forklift and another object which will bring it to a sudden stop or require it to change direction. This risk cannot be regarded as insignificant." 1. The appellant, in ground 4, challenged the identification of the risk of harm and the finding that the risk was foreseeable. 2. Secondly, the judge identified the precautions which a reasonable person would or might have taken in the circumstances. Having noted, at [217], that the plaintiff had proposed three precautions, the judge concluded as follows: "[226] In my view, a reasonable person in the position of Nestlé on 16 August 2012, would have taken all three of the precautions identified by the plaintiff: namely, adopted a system of maintenance and replacement of forklifts in accordance with Linde's recommendations, implemented a system where the forklift operators description of the fault was communicated in terms to the repair technician; and the fitting of seats within the forklift that contained seatbelts or other means (such as contouring and appropriate fabric) in order to minimise the risk of a driver being involuntarily dislodged from the seat." 1. Ground 3 in the notice of appeal challenged the finding as to fitting a seatbelt or other means of restraint, being the third precaution noted by the trial judge. 2. With respect to the second precaution, namely providing a system for adequate communication between the operator of the forklift and the repair technician, ground 2 in the notice of appeal challenged the finding that Nestlé's system for communicating was inadequate and, in ground 1, challenged the finding that Mr Lloyd had not passed on to Mr Raad the detail of Mr Connell's description of the behaviour of the forklift on 10 August 2012. 3. As will be explained below, there was some doubt as to whether the judge specifically found that the first precaution, namely regularly and adequately maintaining and replacing the forklifts, was a separate and independent basis for a finding of breach of duty on the part of Nestlé. The issue fell away because the judge was not satisfied that it was causative of the harm suffered. [28] 4. Section 5D of the Civil Liability Act states that the plaintiff's entitlement to recover damages depends upon the breach of duty causing the particular harm suffered. The plaintiff must prove the probability of any fact relevant to the issue of causation (s 5E), namely to establish that the negligence "was a necessary condition of the occurrence of the harm": s 5D(1)(a). That requires consideration of the counterfactual, based upon the taking of the reasonable precautions, absence of which constituted the breach of duty. 5. The trial judge dealt with causation in two passages. In the first, the judge concluded that had Mr Raad been informed of what Mr Connell had described, Mr Raad would have recommended that the forklift remain out of operation until the problem was replicated and remedied; had Nestlé taken this reasonable precaution, the harm would not have eventuated: at [241]. Secondly, the judge concluded that had the forklift been fitted with a seatbelt, the plaintiff would probably not have been ejected: at [244]. Ground 5 in the notice of appeal challenged the first finding as to causation. The appellant's written submissions took issue also with the second finding. The appeal proceeded on the basis that both findings were in play. 6. Those matters disposed of the issues raised with respect to the liability of Nestlé. A further ground of appeal related to the failure of the judge to find that, if Nestlé were liable, Linde was partly responsible for the harm suffered by the plaintiff: ground 6. This matter will be dealt with separately in considering the liability of Linde. Ground 4 – risk of harm 1. Leeming JA observed in Menz v Wagga Wagga Show Society Inc [29] that the Civil Liability Act has focused attention in addressing negligence claims on the formulation of the risk of harm which the defendant ought to have foreseen. As Leeming JA further observed, a risk of harm which has materialised may be identified at differing levels of specificity or generality. [30] Although the possibilities may be presented in a binary fashion, the judge, who must be guided by principle, will usually have a range of choice. The particular articulation chosen will be guided by the underlying purpose of the statutory provisions being applied. Thus, s 5F of the Act defines "obvious risk" for the purpose of removing liability in negligence for failure to warn of an obvious risk. Section 5L provides that a defendant is not liable in negligence to a person engaged in a dangerous recreational activity where the harm is the materialisation of an obvious risk. Where there is a constraint on liability, the injured person is likely to contend for a narrow definition of the exclusion, whilst a defendant seeks a higher level of generality. In other circumstances, the positions may be reversed. 2. In the present case, Nestlé contended for a more specific formulation, which would be less likely to be foreseeable. The plaintiff contended for a higher degree of generality, because, while submitting that the risk however defined was foreseeable, a higher level of generality was appropriate for the purpose of identifying what might have been reasonable precautions to be taken by Nestlé. As further explained in Menz, [31] "[w]hat is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, because, for example, it obscures the true source of potential injury … or because it too narrowly focusses on the particular hazard which caused the injury …, or because it fails to capture part of the plaintiff's case …." Importantly, although it is necessary to take into account the particular harm which materialised, the risk should be articulated without the benefit of hindsight. The tests of foreseeability and the assessment of significance of the risk, together with the precautions a reasonable person in the defendant's position would have taken, all require foresight. As s 5C requires, that may involve assessing the burden of taking precautions to avoid similar risks of harm: s 5C(a). That assessment must also have regard to countervailing considerations. For example, installing seatbelts may require weighing the benefit of restraining the driver in the vehicle as against allowing the driver of a tipping vehicle to jump clear. 3. As appears from the following passage, the trial judge first identified the risk, then noted the particular aspects of the vehicle which rendered the risk foreseeable, and concluded that the risk could not be regarded as insignificant. The judge then proceeded to address the precautions required to mitigate the risk, thus dealing with each step of the assessment required by s 5B. The relevant passage should be set out in full: "[211] The risk of harm must be articulated with sufficient precision to be relevant to the assessment of reasonableness but ought not be so specific as to be unworkable: Dederer at [59]. In the present case, the risk of harm is the risk of a forklift operator being dislodged from the forklift while the forklift is still in motion. Factors such as the configuration of the forklift, which is open to the side opposite the tines; the lack of a restraining device or any significant contouring on the seat; and the orientation of the driver, who sits perpendicular to the direction of travel, mean that the risk is plainly foreseeable. Any sudden or unexpected change in the speed of the forklift will give rise to this risk of harm. Such a change may occur because of a malfunction in the brakes or speed controls of the forklift but may also come about as a result of a collision between the forklift and another object which will bring it to a sudden stop or require it to change direction. This risk cannot be regarded as insignificant. [212] As a matter of logic, as well as evidence, the precautions required to mitigate the risk of harm will potentially involve one or more of the following: (1) controlling the speed and acceleration and deceleration of the forklift and the environment in which it is to travel; (2) maintaining the forklift in good working order; or (3) taking steps to ensure that the driver of the forklift can remain in the seat and not be involuntarily dislodged from it. [213] In order to determine whether Nestlé (or Linde, which is considered below) ought to have taken precautions against a risk of harm, I am required by s 5B(2) of the Civil Liability Act to consider the following four factors, and any others I consider relevant: first, the probability that the harm would occur if care were not taken; secondly, the likely seriousness of the harm; thirdly, the burden of taking precautions to avoid the risk of harm; and, fourthly, the social utility of the activity that creates the risk of harm. These will be addressed in turn." 1. Ground 4 took issue with the second sentence in [211]. Nestlé submitted that the risk should have included identification of the mechanism of the injury in the present case, namely "that the forklift accelerated or decelerated without warning causing the operator to react by applying the brake, resulting in the operator being dislodged from the forklift while it was still in motion." 2. This formulation was inappropriate to the extent that it included the operator reacting "by applying the brake". That possibility was inconsistent with the inclusion of deceleration without warning as a causal factor; further as the judge correctly appreciated, erratic acceleration and deceleration could dislodge the operator without there being time for the operator to react by applying the brake or not doing so. Otherwise, Nestlé was correct to emphasise the unexpected change of speed as part of the identification of risk. However, that was precisely what the trial judge had done in the fourth sentence of [211], stating that "[a]ny sudden or expected change in the speed of the forklift will give rise to this risk of harm." The second and fourth sentences should be read together. The interposed sentence identified the characteristics of the forklift which gave rise to the risk of being dislodged; it could have come after the next sentence. The complaint, based on reading only part of the reasoning, cannot be sustained. Ground 4 should be rejected. Reasonable precaution – system of communication 1. Although Nestlé took issue with the need for the forklift to be fitted with a seatbelt or other means of restraint, it did not take issue with the finding that Nestlé was required to adopt an appropriate system of maintenance of forklifts, which it did by engaging Linde to carry out necessary maintenance and repairs. Part of that duty required communication of problems to technicians employed by Linde, which the judge found to be inadequate. Grounds 1 and 2 challenged that finding. Ground 2 challenged the finding that there was no proper system of communication in place; ground 1 challenged the finding that the erratic performance of the vehicle identified by Mr Connell had not been adequately communicated to the technician, Mr Raad. These grounds will therefore be dealt with in considering breach of duty. Ground 3: reasonable precautions – fitting of seatbelt or other restraint 1. The trial judge identified the issue with respect to restraints in the following terms: "[218] However, before inferring that the installation of a seatbelt would constitute a reasonable precaution, it is necessary to address the issue raised in the concurrent evidence of the experts: is it, on balance, safer or more dangerous to fit a seatbelt on a reach forklift? The reason for the question is that, pursuant to s 5C(a) of the Civil Liability Act, the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible. Thus, if restraining a driver within a reach forklift would render the driver susceptible to a greater risk of harm than were the driver to be unrestrained, it will not be a reasonable precaution to require a seatbelt to be installed. Negligence is to be determined prospectively and not retrospectively: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 240; [2009] HCA 48 at [31] and [40] (French CJ, Gummow, Hayne, Heydon and Crennan JJ). [219] The experts were equivocal about the relative benefits of seatbelts in forklifts and appeared to answer such questions by reference to their inherent biases (those with experience in road accidents tended to favour restraint because of the overwhelming benefits of seatbelts in such scenarios). They drew attention to the literature which tended not to distinguish between counterbalance forklifts (which are at significantly greater risk of tipping) and reach forklifts, notwithstanding the differences between them which are summarised above." 1. Nestlé took issue with aspects of this reasoning. However, the criticisms were without substance and were immaterial. For example, Nestlé complained that the formulation of the question as to which course would have been safer, at [218], misstated the test of "reasonable care". The judge was doing no such thing: rather, the question was identified by reference to a debate between the experts. A further criticism was that "[t]he consideration given by her Honour to the cost … and other responsibilities of Nestlé was cursory and failed to have proper regard to the requirements of s 5B(2)(c)." That complaint was without substance. The judge expressly took account of cost, namely evidence that a "seatbelt kit" cost $241.86, as identified by Mr Raad, who was not questioned about that evidence. [32] The judge inferred that the cost was specific to vehicle 432 and did not involve a fleetwide order. [33] The heading under which these factors were identified referred to the burden of taking precautions, expressly addressing s 5B(2)(c). The next heading dealt with the social utility of the activity, as identified in s 5B(2)(d). In short, each paragraph of s 5B(2) was addressed in turn. The discussion was not cursory, nor did it fail to address the relevant evidence. 2. More importantly, the criticisms are beside the point because the judge did not ultimately determine the question by reference to the views of the experts discussed in the passage set out above. Rather, the judge's reasoning focused upon two propositions: first, "Nestlé can be taken to have been in the best position to assess the relative risk of restraining, or not restraining, its drivers of reach forklifts with seatbelts when driving in its own warehouse." [34] Secondly, as the judgment continued: "Linde's assessment of the risk is also significant because of its knowledge of the Nestlé warehouse and the forklifts which it had manufactured." [35] This reasoning was ultimately dispositive and must be addressed. 3. These two considerations led the judge to consider the precaution in the following terms: "[221] I consider the 2008 Risk Assessment undertaken by Nestlé to constitute the best evidence that, in the setting of Nestlé's warehouse, it was safer to have seatbelts installed on reach forklifts, which the drivers would be obliged to use, than to leave the drivers unrestrained. Nestlé was plainly aware of the risks associated with forklift drivers being unrestrained in forklifts. Its procedure expressly required forklift drivers to 'drive smoothly, refraining from excessively rapid acceleration or quick stops'. The 2008 Risk Assessment is corroborated by Linde's own assessment, dated 24 August 2008, that the driver should 'stay with the truck and hold on', rather than jump out, as well as Linde's decision to manufacture a new model designed to replace the model of which forklift 432 was an example, with a forklift which was fitted with seatbelts. [222] Notwithstanding Nestlé's assessment of risk, as evident from the 2008 Risk Assessment, it decided to take the risk, at the expense of the safety of its forklift drivers, of deferring either fleet replacement (with forklifts fitted with seatbelts) or replacing the seats or seat coverings or installing seatbelts in the forklifts in its existing fleet." 1. The two risk assessments referred to in these paragraphs were dealt with by the trial judge earlier in her reasons in addressing the risks posed by the forklifts and procedures for their operation. The judge had noted that Nestlé conducted assessments of such risks from time to time, including one assessment "dated 9 May 2008, which identified particular hazards, risks and controls relating to particular activities or equipment (the 2008 Risk Assessment)." [36] The judge continued: "[64] Nestlé reviewed the 2008 Risk Assessment from time to time, including in 2010 and in 2012. The dates of its review are not material for present purposes since the following entry was in the original version published in 2008 and remained in future iterations revealed by the evidence: Hazard Risk Risk Rating Controls Residual Risk Not using seatbelt whilst operating forklift Operator may fall out of forklift in the event of an incident/collision. Injury/fatality. 14 Tool box chat reminders to wear seatbelts. Monitor through BBS program. New forklifts 2009/2010 to have preventative seatbelt device in it. 6 [65] A risk rating of 14 was associated with an event which was unlikely to occur (more than once in 3 years but less than once a year) but for which the most likely consequence is 'critical'. By contrast, a risk rating of 6 was associated with an event which was extremely unlikely to occur (occurrence has not occurred and is expected to occur less than once in 3 years) and for which the most likely consequence is 'serious'. [66] Although at the time the 2008 Risk Assessment was produced, Nestlé intended to replace its forklifts in 2009/2010 with forklifts which would be fitted with seatbelts, this did not eventuate. From April 2012, Nestlé was considering moving its premises from Arndell Park because of a change in volume of the product being moved through the distribution centre, which would have led to replacement of the forklifts prior to the plaintiff's accident. It deferred replacement of the forklifts pending a decision on relocation." 1. The 2008 Risk Assessment was the subject of cross-examination of Mr Neighbour, who was the distribution centre manager at Arndell Park in 2012. Mr Neighbour was first taken to a Nestlé document with the title "Safe Forklift Operation". The document bore a "revision date" of 30 September 2011. Relevantly point four in a page of bullet points, stated that operators "[a]lways wear seatbelts (where fitted)". The final point, in capital letters, read: "DO NOT JUMP OUT IF YOUR FORKLIFT IS OVERTURNING." Mr Neighbour was asked if there had been risk assessments undertaken for the machines, with which he agreed. The following exchange appeared: [37] "Q. … you said that in respect of restraining devices or a modification to the machines which might enable the operator to stay in, in the event of an overturning, you relied upon Linde to do that, is that right? A. To do modifications? Q. Yes, or to supply relevant restraining devices— A. Yes. Q. --to stop it— A. Yes. Q. To keep the operator falling out in the event of an overturning? A. Yes. Q. If you assume that Linde's obligation was to comply with Australian Standards and they did not include such restraining devices, but you did, why would you rely upon Linde to provide you with that advice? A. Are you saying we did provide— Q. No, what I'm saying to you is, if Linde was not obliged as part of its manufacturing process to provide devices to keep the operator in in the event of an overturning, in other words the Australian Standards didn't require them to do that— A. Yep. Q. --why would you assume that Linde should provide you with that advice unless you sought it? A. Why would we - sorry, why would we provide— Q. Well, did you seek advice about Linde about how to help the operator stay into the machine? A. We relied on their recommendations on how the machine should be operated. Q. Where do I find those recommendations within the documents of Nestle? A. You won't - it won't be in there. Q. Well, I'm sorry, why won't it be in there? If you sought their advice, why won't it be in Nestle's documents? A. So I would be speculating, as it's before my time, however, when we purchase the equipment, the manufacturer recommends safe operation of the equipment and we take it upon their recommendations and apply those recommendations in use of the equipment." 1. He was then taken to the 2008 Risk Assessment. He agreed that the document carried the date of 9 May 2008 and had not been revised. It expressly dealt with high reach forklifts and identified in one part the hazard of not using seatbelts, as set out by the judge at [64]: see [90] above. What was not recorded in that extract were the handwritten signatures and notations which appeared in the final column against the date 13/11/12, with two signatures and between the signatures the letters "N/A". Mr Neighbour was asked if he recognised the signatures, but was unable to do more than make an assumption. [38] The cross-examination continued: [39] "Q. But you see, it appears to be Nestle's own assessment that seatbelts are required for these vehicles. Is that right? And that they were supposed to be coming in the replacement vehicles for the vehicles that were coming into force in 2009, 2010. A. It would be, it would appear that was the case, yes. Q. But as I understand it, and correct me if I'm wrong, it was decided to extend the life of the fleet for a longer period for reasons which are enunciated elsewhere in your statement? A. That is my understanding, yes. Q. Then while you had that risk in operation, why wasn't the provision of seatbelts made available to the existing fleet once that new fleet was not coming into force? A. I am not aware. It was before my time. But I'm not aware why. Q. Sorry? A. I'm not aware why. Q. But you would expect that your counterpart from that time would have had something to say about that in terms of having those seatbelts retrofitted in the event the fleet continued on as it was? A. I would assume so but it's an assumption. Q. I understand it's an assumption. But if you had been in that position at that time, you would have ensured they were retrospectively fitted, would you not? A. I would have understood why the control was put in place and I would have engaged the manufacturer to understand what it would take to do that. Q. When you engaged the manufacturer, was cost an issue for the operation of these machines? A. No." 1. There was no re-examination of Mr Neighbour and the significance of the handwritten annotations was not explored. 2. The second risk assessment referred to was that of Linde. On 24 August 2008 Linde prepared a document which was headed "Appendix 1 – Risk Assessment – Workshop Minutes" for reach trucks including the R16 model, which included forklift 432 at Nestlé. The document identified a number of high and significant risks, including the following risk and risk reduction measures: Four of the assessed high risk incidents involved vehicle tip-over resulting in the potential for the operator to fall or jump from the cabin. In this incident there is also a potential for the truck to land on the operator resulting in a fatality. Procedures and training are critical in managing this risk. Statistically, truck tips and falls away from the operator, this would be included in the training. No seat belts are fitted to this truck hence the operator can jump from the truck and be impacted. The operator must be trained to stay with the truck and hold on (e.g. MTI low probability). This would maintain the risk within the ALARP [as low as reasonably practicable] range. 1. The trial judge fairly summarised Mr Neighbour's evidence in the following passage: "[67] Notwithstanding the proposals for their replacement, the forklifts, which had been in use since 2003 and which did not have seatbelts, continued to be used. None was fitted with a seatbelt or other restraining device at the time of the plaintiff's accident. Mr Neighbour was unable to explain why seatbelts were not fitted to the existing forklifts when their replacement was deferred, apparently indefinitely. He said that if he had been in his current position at the time the decision not to replace the forklift fleet had been made, he would have engaged Linde to ascertain whether it was feasible to have seatbelts fitted to the existing forklifts. Mr Neighbour did not consider cost to be an issue because of the value which he understood Nestlé placed on safety." 1. The assessment made by the trial judge at [222] should be accepted. Nestlé criticised the finding on the basis that the expert evidence required further findings that (i) it was not industry practice to fit seatbelts to reach forklifts in 2003; (ii) it was not industry practice in 2012 to require that older forklifts be retrofitted with seatbelts; (iii) the evidence was silent as to whether it was possible to anchor a retrofitting in accordance with Australian Standards, and (iv) Nestlé was dependent on the manufacturer's advice in this regard. Each of these propositions has merit, but they do not address the underlying proposition that Nestlé did not, on the evidence, inquire of Linde whether such a step was thought necessary or practicable. 2. Senior counsel for the plaintiff received an affirmative answer from each of the four experts to the following proposition: as to "whether there was a suitable seatbelt available that could be retrofitted to this truck, may we assume, gentlemen, that Linde would be the person to judge whether it could be retrofitted[?]" Although there was an objection that the question seemed to raise an implied duty on the part of Linde to proffer proactive advice, and although a further objection was taken as to the time to which the question was directed, the question was allowed and answered affirmatively. There was indeed no pleading of a proactive duty on Linde to advise; the point was rather that, if it thought seatbelts appropriate, Nestlé was both entitled and required to defer to Linde as to whether a belt could be fitted. It was open to the judge to accept that it could, on the basis of a document prepared by Mr Raad as part of the service history for forklift 432, which included reference to the installation of a seatbelt, with a price. The available inference was that the technician who regularly serviced and repaired the vehicle believed that a seatbelt could be fitted. 3. As to the second document relied upon by the trial judge, namely the risk assessment undertaken by Linde, Nestlé objected that there was no evidence that it had received the document prior to the accident, or that it was aware of its existence. That objection should be accepted. The document appears not to have been raised in evidence with Mr Neighbour, or Mr Lloyd, who were the principal witnesses for Nestlé. In the absence of evidence of prior notice, the document was available to support an inference that, had Nestlé sought advice from Linde, Linde would have supported the fitting of a seatbelt on the ageing forklifts. However, it could not support a finding that Nestlé was aware of the assessment, or that Nestlé should have sought such advice. 4. In short, it was open to the trial judge to find that on the basis of the 2008 Risk Assessment, Nestlé should have sought advice from Linde as to the capacity of the ageing forklifts to be retrofitted with seatbelts, the seats replaced with a contoured cushion and the smooth seat surface eradicated. Had it done so, Linde would probably have advised that a seatbelt could be retrofitted and the seat replaced. It is true that the judge did not divide the steps to be taken in relation to seatbelts in precisely that manner, but nor was it suggested that Nestlé would itself fit an appropriate restraint. On the other hand, this reasoning is not consistent with the reasoning at [221] with respect to the use of Linde's own risk assessment and there was no notice of contention seeking an alternative finding. However, as the finding of liability should be upheld on another basis it is not necessary to determine whether there was a material error with respect to this specific precaution. Reasonable precaution – communications with Linde 1. The so-called "tag-out" procedure which was applied to faulty vehicles involved the vehicle being placed in the yard with a tag attached. In some circumstances (not clearly specified in the evidence) the vehicle would be "locked out" to prevent its use. As the judge explained: [40] "The details of forklifts which had been tagged or locked out would be entered in a spiral notebook which was kept in a locked cabinet in the office where the forklift drivers would enter to obtain their work allocation for each shift." As noted above, the final column of the tag-out book required that the Nestlé employee with authority to remove the tag so as to return the vehicle to use, sign the book and enter the date. 1. At a series of Nestlé staff safety meetings, commencing in April 2011 and continuing through June and July 2012, failure to complete the log book was repeatedly noted. At the April 2011 meeting it was suggested that a "tag-out register" be established, with the person responsible being Michelle Balewai, the Nestlé safety officer at the distribution centre. 2. The tag-out entries on the printed forms in the spiral notebook uniformly indicated that a supervisor had been informed when the vehicle was locked or tagged out. If the supervisor obtained information from the operator beyond the three or four words routinely entered in the notebook, there was no procedure for recording that information. Mr Neighbour was asked as to his understanding of the process in cross-examination by senior counsel for Linde: [41] "Q. So far as the work that was performed by Linde is concerned, was your understanding of the procedure that having tagged the piece of equipment out, there may or may not be a supplementation or additional information provided to the supervisor as to the reasons for the tagout? A. Yes, so the operators would tag it out and generally have a conversation with their supervisors to elaborate what the issue was. Q. And they may or may not, depending on the type of problem? A. Well, the supervisor would want to know why it's tagged out. If he looked in the register and he couldn't understand the detail behind it, then he would engage the operator. … Q. Was it your understanding that a call would then be made – I withdraw that, a communication by Nestle to Linde for the servicemen to come out? A. Yes, I believe he was onsite most of the time of permanently so we would normally just bring him across. Q. If it was in a period of time when the Linde technician was not permanently onsite, he'd need to be— A. We would call him. … Q. Were there any other documents that you understand were produced by Nestle in relation to that call out? A. Not that I'm aware of." 1. The evidence thus indicated that there was, in effect, no formal system for communicating Nestlé's needs with respect to a defective forklift to Linde's technician. As noted above, Linde's service history also recorded in very few words the nature of the problem. No doubt, in many cases that would be sufficient. However, in some cases it was insufficient and the insufficiency was revealed in the present case. The resolution was more fully explained in Linde's records, but the evidence did not reveal if they were available to Nestlé beyond what was recorded on the invoice for payment. There was no system in operation which allowed for a reporting back by the Linde technician with respect to the defects which may have been identified and rectified. The relevant particulars of negligence alleged against Nestlé were as follows: [42] "(i) Failing to implement any, or any adequate, tag-out and return to service procedure, guideline or system with respect to forklifts at the premises. (j) Failing to properly follow any procedure relating to the tag-out and return to service procedure, guideline or system with respect to forklifts at the premises. (k) Failing to advise the agents of [Linde] of the specific nature of the safety defect and/or fault of the Forklift on 10 August 2012. (l) Allowing the forklift to return to service for use by its employees without confirming that the safety defect and/or fault had been both identified and remedied. … (n) Allowing the forklift to return to service for use by its employees in circumstances where [Linde's] service notes made no reference to the safety defect and/or fault reported on 10 August 2012." 1. As has been noted above, Mr Connell gave a detailed account to Mr Lloyd of the erratic behaviour of forklift 432 on 10 August. The explanation was not adequately encapsulated in the brief note in the tag-out book. However, Mr Lloyd did not make a note of what he had been told, nor of what he had told Mr Raad. The trial judge found, correctly, that "[w]hen Mr Lloyd made a statement to an investigator on 6 November 2012, he did not mention either that Mr Connell had spoken to him or that he had spoken to Mr Raad." [43] 2. The judge reasoned as to the case against Nestlé with respect to the system of communication and what occurred on 10 August 2012: "[99] In his statement made on 7 December 2018 (over six years after the accident), Mr Lloyd said that [he] recalled Mr Connell saying to him, 'My machine is playing up and I have tagged it out.' He also recalled Mr Connell telling him that '[t]he machine [forklift 432] had sped up for no reason faster than normal, and suddenly braked, giving [him] a real fright.' Also in his statement dated 7 December 2018, Mr Lloyd said that Mr Connell had given him a more detailed description but that he could not recall the further detail. Mr Lloyd said that he formed the view, when he heard Mr Connell's description, that it was necessary to tag-out the machine and have it examined by Mr Raad. [100] Mr Lloyd described his usual practice of speaking to the technician to relay what he had been told by the driver. Mr Lloyd concluded that, after speaking with Mr Connell on 10 August 2012, he had told Mr Raad of the problem at Nestlé's premises on the same day, although he could not recall what he had said to Mr Raad about forklift 432. [101] However, after Mr Lloyd made his statement dated 7 December 2018, Linde served a statement made by Mr Raad dated 19 May 2020 in which Mr Raad said that he did not attend the Nestlé premises at Arndell Park on 10 August 2012 although he had attended on 13 August 2012. Nestlé's solicitors showed Mr Lloyd two further documents: Mr Raad's statement; and Mr Hickey's report, which contained a report of what Mr Connell had said was wrong with forklift 432. [102] In a supplementary statement on 26 February 2021, Mr Lloyd accepted that the conversation which he had with Mr Raad had taken place on 13 August 2012 rather than, as previously stated, 10 August 2012. He also purported to be able to recall that he told Mr Raad that: '… there was an issue with the forklift 432, that it was tagged out, and the description was around the, the forklift under acceleration, accelerated faster than anticipated. When the operator backed off, it then slowed down a lot faster than usual. No brake was activated then. Then as he accelerated again, it again picked up speed, and he actually put his foot onto the brake to slow the machine down, and then brought that machine back to the office to be tagged out.' [103] The inference is available from Mr Lloyd's evidence of his usual practice, that Mr Lloyd did, in fact, relay what Mr Connell had told him …. However, I am not satisfied that this actually occurred. First, the conversation between Mr Connell and Mr Lloyd took place on 10 August 2012 but Mr Lloyd did not speak to Mr Raad (if at all) until 13 August 2012, which was after the weekend. Further, Mr Lloyd's general approach was that it was for the technician to work out the problem with the forklift and that his responsibility began and ended with making sure it was tagged out until it had been looked at by Linde. This approach is evident from the following exchange in the cross-examination of Mr Lloyd: 'Q. As a result of that, may I take it that you were interested to find out what the precise nature of the problem was which caused it to do this? A. I, from the mechanical perspective, I guess that's up to the Linde team to decide that, but my role was to tag that machine out so it could not be operated … or injure anybody.' [104] The approach is also consistent with Mr Lloyd not recalling whether he had made a point of trying to find out what the problem was that Mr Raad had discovered, once the repairs had been completed. [105] Mr Lloyd accepted that his conversation with Mr Connell on 10 August 2012 was the first time that he had ever heard of a forklift accelerating beyond its usual speed and agreed that he regarded it as a 'very serious and startling event'. He also agreed in cross-examination that a forklift which suddenly speeds up and then suddenly brakes had the potential to cause serious injury to the operator if the operator was thrown off the forklift. However, having regard to his view about the division between his responsibilities and Linde's responsibilities, I do not consider that the novelty and potential danger of the issue which Mr Connell had brought to his attention caused him to act any differently at the time than he usually did. [106] Although Mr Lloyd purported to have a recollection of the detail of this conversation, I am not satisfied that his 'recollection' was any more than a reconstruction of what he would have done had he followed what he said was his usual practice of relaying to the technician what a forklift operator had told him about the problem with a particular forklift. It is understandable that Mr Lloyd's actual memory would have faded: the alleged conversation occurred on 13 August 2012 and Mr Lloyd does not appear to have been asked about it in detail until February 2021, at which time he was shown Mr Connell's description of what had occurred on 10 August 2012. In these circumstances, I am not satisfied that Mr Lloyd passed on to Mr Raad the detail of what Mr Connell had described to him." 1. Both Mr Raad's evidence and Linde's records, together with knowledge of what Mr Raad in fact did, support the judge's conclusion that Mr Raad was not given a full or adequate account of the problem identified by Mr Connell. The result was that the defect was not identified and was not rectified. 2. Conscious of the fact that ground 1 challenged a finding as to the credibility of evidence given by two witnesses who had been cross-examined at trial, Nestlé submitted that the judge's conclusion was "wrong and contrary to incontrovertible facts, accepted testimony and compelling inferences", adopting the language of Fox v Percy. [44] However, no incontrovertible facts were identified, and the question of compelling inferences was a matter for assessment by the trial judge, although none of the inferences she drew appear on their face to be other than persuasive in favour of the conclusion reached. 3. The term "accepted testimony" was a reference to the acceptance by the judge of Mr Raad's and Mr Lloyd's accounts as to their "usual practice", in circumstances where they could not recall detail. Thus reliance was placed upon a statement by Mr Lloyd prepared in December 2018, some six years after the incident, in which he described his practice in the following terms: "11. The invariable practice that I follow as part of my employer's standard procedure in the warehouse when a machine is tagged out by an operator, or by a supervisor upon information provided to me by an operator, is to report the nature of the problem to the Linde technician using as best that I can the information provided to me by the operator. On some occasions, the operator is also present and gives a description directly to the technician." 1. The appellant submitted that to describe this as Mr Lloyd's "usual practice" was "to understate Mr Lloyd's uncontradicted evidence which was that it was his 'invariable' practice." [45] Contrary to the appellant's submissions, the judge's finding revealed that she did not accept that this was his "invariable practice". 2. Nor was this evidence unchallenged. The cross-examination, which appears to have been shared between counsel for the plaintiff and counsel for Linde, involved three steps. First, the cross-examiner obtained acceptance from Mr Lloyd that what he had been told by Mr Connell as to the operation of the vehicle was unusual, had the potential to cause serious injury and, as a consequence, described a problem about which he wished to know its precise nature and cause. Accepting the first two propositions, Mr Lloyd did not in terms accept the third. The cross-examination continued: [46] "Q. I see. When Mr Raad completed such repairs as he did, did you make a point of trying to find out what the problem was that he had discovered? A. No, I can't recall that detail. Q. But it would be important to you, would it not, as the supervisor, in circumstances where the fault was essentially unknown at that time, to determine what that fault was so that you could inspect the rest of the fleet for example, and find out what the problem might – whether the problem affected them? A. You could put it, yeah, you could put it that way. Q. And you would accept that that was something that should have been present on your mind at the time when this machine was tagged out with this very unusual fault? Is that right? … A. Yes, sorry, yes." 1. The second stage in the cross-examination took Mr Lloyd to the interview with the investigator prepared in November 2012, some three months after the accident. Mr Lloyd accepted that Mr Metri's description of the forklift's behaviour was "very similar to that description which had been given to you by Mr Connell". [47] The importance of the investigation was also accepted. Mr Lloyd was then asked: [48] "Q. You took care to ensure that you had recorded in it everything that you regarded as relevant to Mr Metri's accident? A. At the time of making this, yes. Q. There's no mention in this statement, is there, of the conversation which you say you had with Mr Connell concerning the event regarding him and forklift 432. That's so, isn't it? A. Correct, yes. … Q. There's no mention in this statement dated 8 November of any discussion between you and Mr Raad, is there? A. No, there's not. Q. That's because you did not have a conversation with Mr Raad in the sense that you've given evidence about today? A. That's not true. Q. It's not recorded in the statement because, at the time, you did not regard whatever had occurred between you and Mr Raad by way of conversation as relevant to Mr Metri's claim. Is that correct? A. At the time, no." 1. The third stage of the cross-examination was to challenge the circumstances in which the evidentiary statement of 7 December 2018 was prepared. The cross-examination concluded by returning to the absence of earlier detail concerning the conversation with Mr Raad in the following passage: [49] "Q. After Mr Metri had his accident, you made no complaint to Linde that Mr Raad had misdiagnosed the problem on 10 August 2012. Do you agree? A. Agree. Q. You made no complaint to Linde about Linde having caused Mr Metri's unfortunate injuries, did you? A. Again, I'm not a technical person, so how am I meant to know what the machine did and didn't do. Q. Yes, but you are a supervisor, aren't you? A. Correct. Q. You were the direct point of contact with Mr Raad, weren't you? A. Again, that was – there was three of us that would have contact with Mr Raad. Q. But you were the one that said you had the conversation with Mr Raad about the event, tagout event, in August 2012? A. Correct. … Q. You didn't report these events, did you, up the line to, for example, Mr Neighbour, did you? A. I think I had no reason to report it up the line. Q. It was not mentioned in the email that you prepared on the day after the incident, was it?" 1. The last question was not answered, but as the judge pointed out it had already been answered and the email spoke for itself: there was no mention. 2. Contrary to Nestlé's submissions in this Court, Mr Lloyd was challenged in some detail as to his account of his contact with Mr Raad. On the other side of the record, Nestlé relied upon the evidence of Mr Raad which, it was submitted, conceded that he had a conversation with Mr Lloyd about the forklift 432 on 13 August 2012. That conversation has been set out above. Reading the transcript, it could be inferred that Mr Raad made no admission at all but rather, when describing something as "possible", was intending to indicate a negative. 3. While conceding to the trial judge the significant benefit of having heard the oral testimony, a fair reading of the transcript is supportive of the finding the judge made. Acknowledging the benefit of the trial judge in reaching such findings on contested evidence, the challenge in ground 1 is untenable and must be rejected. 4. Ground 2 had two limbs. The first was described as an "implicit assumption" that Nestlé was responsible for devising the system of communicating with the Linde technician. That assumption was said to be "unlikely." [50] 5. That proposition appears to have depended in part upon Mr Gorman's evidence (for Linde) that "the customer would rarely be in a position to provide any assistance to the technician". [51] However, Mr Gorman's evidence was somewhat more nuanced. Shortly before the answer relied upon, the following exchange took place: [52] "Q. The point I wanted to clarify with you is this: The technician doesn't rely upon the operator or the customer to tell the technician what the fault is? A. Yeah. They can use them as a guide as to what's happening but they will normally do the, the diagnosis themselves to detect any, any problems on the truck." The problem in this case was that Mr Raad had not been told "what's happening". 1. It may have been true that Linde should have ensured that its technicians were given sufficient information, but that did not exonerate Nestlé from its share of responsibility for establishing an adequate system of communication. 2. The second proposition relied upon by Nestlé was that there was "no evidence of a systemic failure in the system of communication", [53] meaning that there was "no criticism of the system generally." Nestlé understood that the criticism "was limited to the alleged failure of communication on 13 August 2012." 3. While that was not entirely true (Mr Connell complained of an earlier problem with vehicle 432), the events of 10 August demonstrated that, on the plaintiff's case, communications were dealt with informally, no records were kept and there was no system for reporting back. Mr Gorman's evidence, quoted above, was consistent with the inference that, had Mr Raad been given accurate information as to the nature of the problem which confronted Mr Connell, a different result might have been achieved. That would certainly have been probable had Nestlé's officers recorded the nature of the problem in sufficient detail and had Mr Raad's report back been recorded. If Mr Raad had failed to find a defect which explained the behaviour of the vehicle, then acting responsibly, Nestlé would not have removed the tag. However, that part of the analysis goes to causation which will be dealt with below. Once ground 1 is rejected, the circumstances demonstrated the inadequacy of the system and ground 2 must also be rejected. 4. The key findings may best be identified in two passages when discussing what happened on 10 August 2012 under the heading "Causation". The judge stated: "[235] I regard it as significant that Mr Connell, as soon as he heard the plaintiff's description of what had caused him to fall from the forklift on 16 August 2012, was concerned that the forklift had been allowed to return to service when it exhibited what was, to his mind, similar deficiencies as had been evident on 10 August 2012, which had led him to tag it out. It is also telling that when Mr Lloyd (who had been a forklift driver himself before being promoted) heard about what had happened to the plaintiff, he made the connection with the description which Mr Connell had given to him six days previously, which he regarded as 'very similar'. … [240] It follows from my acceptance of Mr Connell's and the plaintiff's description of the behaviour of forklift 432 that Nestlé, through Mr Lloyd, was aware on 10 August 2012, because of what Mr Connell told him, that forklift 432 was behaving erratically, including by spontaneously over-speeding and braking suddenly, thereby exposing Mr Connell to forces which almost caused him to be thrown from the forklift. As a consequence, the duty of care which Nestlé owed to the plaintiff required it to take steps to ensure that the forklift remained out of service unless and until the defect could be replicated, identified and remedied, having regard to the dangers (to the driver and to others in the vicinity) posed by a forklift which behaved erratically." These findings should be upheld. Ground 5 – causation 1. Immediately following the passages last set out above, the judge identified the consequences of failing to take the reasonable precaution of telling Linde what Mr Connell had experienced. Her conclusion was in the following terms: "[241] The duty of care which Nestlé owed to its employees required it, for the reasons given above, to ensure that Mr Raad was made aware of Mr Connell's description of the behaviour of forklift 432. Nestlé failed to do this. Its system of relaying a shorthand version of the problem ('machine speed playing up') was manifestly inadequate to inform Mr Raad of the gravamen of the principal fault in forklift 432. Had Mr Raad been informed of what Mr Connell described, he would have recommended that the forklift remain tagged out and not used unless and until the problem could be replicated and remedied. Thus, had Nestlé taken this reasonable precaution, the plaintiff would not have been injured. This is sufficient to satisfy the 'but for' test of factual causation in s 5D(1)(a) of the Civil Liability Act: Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [16] (French CJ, Crennan, Kiefel, Gageler and Keane JJ). [242] Further, in my view, it is appropriate for the scope of Nestlé's liability to extend to the harm so caused. It owned forklift 432 and employed Mr Connell. It contracted with Linde to maintain the forklifts. Nestlé appreciated that any defect in a forklift could give rise to a risk of injury in those present in the warehouse, including drivers, pickers and other persons who happened to be there. Its failure to implement a system to ensure that the technician had the information which was available to Nestlé was negligent." 1. The judge also made findings with respect to causation on the basis that there had been a failure to provide sufficient restraint for the operator. The judge's finding in that regard was set out in the following terms: "[244] Had the seat in forklift 432 been contoured, upholstered with textured fabric or fitted with a seatbelt, the plaintiff would probably not have been ejected from it. This is sufficient to satisfy the 'but for' test of factual causation in s 5D(1)(a) of the Civil Liability Act. I am satisfied that it is appropriate for Nestlé's liability to extend to the harm caused in the present case. Having conducted the 2008 Risk Assessment, Nestlé was well aware of the risk of a driver being dislodged from the seat of a reach forklift. It determined that seats fitted with seatbelts was an appropriate control to reduce the risk from 'critical' to 'serious'. Yet, four years after the 2008 Risk Assessment was performed, Nestlé had done nothing to mitigate that particular risk, whether by installing contoured seats, fitting seatbelts or replacing the forklifts." 1. Nestlé's case on appeal with respect to causation turned in large part on two propositions. The first was that the judge misunderstood Mr Raad's evidence as to what would have happened had he been advised of the problem encountered by Mr Connell. However, when cross-examined by senior counsel for the plaintiff, and having agreed that he had no experience of a machine going faster than the operators had been used to, Mr Raad agreed with the following question: [54] "Q. … If in fact that occurred and you understood that was the problem for which you were being asked to look at, then you would not consider returning that machine to service until you had solved that problem? A. Correct. Q. And as you know, of course, these machines if they misbehave in a manner which could cause injury to people, have to be treated with a great deal of caution? A. Correct. Q. So if that had occurred you would no doubt have run the Truck Doctor on it, is that right? A. Correct. Q. And if the Truck Doctor had no code for a machine going over the speed that it was programmed to do, then you would probably refer the matter back to head office or something like that, would you? A. I will drive it before I go back to, to head office and yeah. Q. You certainly wouldn't let it go back into service again if that fault was undetected by you? If you couldn't find the fault and remedy it, you wouldn't let it go back into service, would you? It's too dangerous? A. So, so if I can't find, find it in the diagnosis and I can't replicate it myself, I wouldn't take it back to service, is this the question? Q. Yes. A. I probably would inform the, the site manager that I can't find any problem with it." 1. Mr Raad confirmed that his understanding of the problem was that "speed playing up" meant that the machine was going into "turtle mode", that is slowing down. That of course was not the problem. 2. Although Nestlé submitted that this evidence did not support the conclusion as to what would have happened had Mr Raad been given the full detail of Mr Connell's account, there is no reason to doubt the judge's conclusion, on the balance of probabilities, that the failure to find a fault or replicate the problem would have been reported to Nestlé, had the true nature of the problem been known. 3. The second basis on which the appellant took issue with the judge's finding as to causation was related to the first. As Nestlé noted, the primary judge had rejected a submission that the failure of the plaintiff to explain what caused the aberrant behaviour of forklift 432 was fatal to his case in negligence. In support of that conclusion the trial judge had relied upon a passage from the reasons of Mason P in Bendix Mintex Pty Ltd v Barnes: [55] "The inability to call lay or expert evidence that shows the precise way in which something has happened is not fatal…." 1. The reliance on Bendix Mintex may have been unfortunate: it was concerned with circumstances where a plaintiff suffering from mesothelioma had been exposed to asbestos during two periods of employment but, in accordance with medical evidence, only one of the two gave rise to the inhalation of the asbestos fibre which caused the disease. Those circumstances have been dealt with in a number of judgments, both before and after Bendix Mintex; they do not helpfully inform the analysis in the present case. 2. There is in this case no doubt that the injury was caused by the erratic behaviour of the vehicle owned by Nestlé and operated by the plaintiff in the course of his employment with Nestlé. If there had been no prior indication as to such a defect, as might have been the case had Mr Connell not experienced a similar problem on 10 August, it may have been difficult to establish negligence on the part of Nestlé. However, the defect had been identified a matter of days before the plaintiff was injured in similar circumstances, driving the same vehicle. The breach of duty on the part of Nestlé was not a failure to identify the cause of the erratic behaviour, but the failure to remove the vehicle from service until the cause had been identified and rectified. As the trial judge concluded, the failure to identify the cause was not fatal to the plaintiff's claim, because, in fact, it formed no part of the plaintiff's claim. 3. Ground 5 should be rejected. It follows that the appeal from the judgment in favour of the plaintiff must be dismissed. Ground 6 – Liability of Linde (a) the claims against Linde 1. The plaintiff joined Linde as a second defendant to his claim. The particulars of negligence included: "(a) Failing to adequately inspect, repair and or service the Subject Forklift in particular after the problem was reported on 10 August 2012 resulting in the over-speeding problem not being detected and/or adequately repaired at the time; (b) Permitting the Subject Forklift to be returned to service after it was tagged out on 10 August 2012 without having taken reasonable steps to satisfy itself as to the cause of the over-speeding issue, and addressing same; … (g) Failed to employ an adequate system of inspection and maintenance to detect problems such as those alleged by the Plaintiff from occurring." 1. On 10 March 2021 Nestlé filed a second further amended statement of cross-claim, naming Linde as the cross-defendant. It repeated relevant allegations made by the plaintiff against Linde. Further, it relied on the maintenance agreement and pleaded that it was an implied term of the agreement that Linde would provide necessary advice as to the need for the fitting or installation of safety equipment including seatbelts and a guard rail to the driver's cabin of the subject forklift. In particular, the cross-claim alleged: "10 In the period of approximately 6 months prior to the Plaintiff's accident, the Subject Forklift was 'tagged out' of service on three occasions and repaired/serviced by the Cross-Defendant before being certified as fit to be returned to service. Particulars (i) 29 February, 2012 (Running slowly; no forward or reverse motion available) (ii) 29 May, 2012 (Creeping forward due to handbrake not operating properly) (iii) 10 August, 2012 (Speed sensor issue causing the Forklift to run faster than the operator's setting) 11 After each of the 'Tag Out' events, the Subject Forklift was returned to service. 12 To the extent that the Court determines that the Plaintiff's allegations are made out, and that the Plaintiff's accident was caused by a spontaneous malfunctioning of the Subject Forklift, the Cross-Claimant says that such spontaneous malfunctioning was caused by the breach of the Agreement by the Cross-Defendant: Particulars (i) Failing to adequately inspect, repair and or service the Subject Forklift, in particular after the problem was reported on 10 August, 2012 resulting in the over-speeding problem not being detected and/or adequately repaired at the time; (ii) Permitting the Subject Forklift to be returned to service after it was 'tagged out' on 10 August, 2012 without having taken reasonable steps to satisfy itself as to the cause of the over-speeding issue, and addressing same; (iii) Failing to advise the Cross-Claimant that the Subject Forklift should not be returned to service; (iv) Failing to properly maintain the Subject Forklift so that the kill-switch mechanism was and was known to be fully operational and effective; (v) Failing to properly maintain the Subject Forklift so that the brake functions were and were known to be fully operational and effective; (vi) Failed to employ an adequate system of inspection and maintenance to detect problems such as those alleged by the Plaintiff from occurring; (vii) Res ipsa loquitur." (b) trial judge's reasoning 1. The trial judge dealt separately with the liability of Linde to the plaintiff and liability to Nestlé on the cross-claim. With respect to liability to the plaintiff, the judge's critical reasoning was contained in the following passage: "[283] For the reasons given above, I am not satisfied that Mr Raad was privy to any further knowledge about the defect in forklift 432 when he repaired it on 13 August 2012 than that with which Linde had been provided by 'Tony' when the call was made at 2.36pm ('machine speed is playing up'). The shorthand description, while accurate, was incomplete since it missed two crucial integers: that forklift 432 was not only accelerating and decelerating erratically, but that it was also over-speeding. These two factors were what elevated the 'speed playing up' issue to one which ought to have led to the forklift being taken out of service unless and until the defect could be both replicated and rectified. It was known to both Nestlé and Linde that over-speeding or erratic movement of a forklift would subject the driver to the risk of becoming dislodged from the forklift, given the lack of restraint or suitable seating in the forklifts and the driver's orientation perpendicular to the direction of travel which made it more difficult for the driver to brace." 1. The judge held, on that basis, that the plaintiff had not discharged his onus of proof that Linde breached its duty of care: at [286]. The judge appears to have treated the plaintiff's pleading as not alleging a failure of the communication system for which Linde was partly responsible, and hence did not consider what Mr Raad ought to have known, rather than simply what he knew. 2. Although the plaintiff filed a notice of cross-appeal he did so only on the basis that Nestlé might succeed in overturning the finding of liability to the plaintiff against it, which has not occurred. Accordingly, it is not necessary to consider further the direct liability of Linde to Mr Metri. 3. With respect to the cross-claim by Nestlé, the judge identified the bases of the claim in the following terms: "[291] Nestlé put its cross-claim against Linde on several bases: that Linde was negligent in failing to remedy the fault in forklift 432; that it was negligent in failing to advise Nestlé that it ought to have modified the forklifts to install seatbelts or guard rails; and that it was negligent in failing to adequately maintain the forklift so as to cause a spontaneous malfunctioning which resulted in the plaintiff's accident. The first and third allegations will be addressed together." 1. The judge accepted that there was an implied term in the maintenance contract that Linde would exercise reasonable skill, care and diligence when carrying out the maintenance, service and repair of Nestlé's forklifts: at [292]. Further, the judgment noted that Nestlé accepted for the purposes of the cross-claim "that the fault which caused the plaintiff's accident was present when forklift 432 was serviced by Mr Raad on 13 August 2012." The judge accepted that this was so and also that Linde failed to remedy the defect that was present on 10 and 13 August and which caused the plaintiff's accident on 16 August 2012: at [293]. Nevertheless, on the basis of the finding that Linde's knowledge was that of Mr Raad, for the same reason that the plaintiff's claim failed, Nestlé's cross-claim on the basis of negligent repair failed. Mr Raad was not informed of the relevant factors which should have led to further steps being taken on 13 August. 2. The trial judge dealt with the claim of failure to advise on a different basis, namely that causation was not established. That was explained in the following paragraph: "[297] Even assuming that Linde had owed such a duty to Nestlé, the evidence does not reveal that Linde's knowledge about the safety aspects of the forklifts was superior to Nestlé's. Linde had devised and manufactured new forklifts which were fitted with seatbelts. Nestlé decided to acquire the new forklifts which it had assessed would be safer than its existing forklifts. Notwithstanding the 2008 Risk Assessment, Nestlé deferred replacing its fleet for the following four years until after the plaintiff's accident. Had Linde recommended the new forklifts on the basis that the new features would avert the risk of the driver being dislodged from the forklift, I infer that Nestlé would simply have told Linde that it was aware of the relative risk (having assessed it in 2008) and was prepared to take the risk rather than replace the forklifts or make enquiries about the modifications to its existing forklifts which could ameliorate the risk posed by the lack of contouring or restraint in the existing forklifts." (c) Nestlé's case on appeal 1. Nestlé challenged the finding of no negligence on the basis that it was entirely dependent upon Linde to diagnose and rectify any fault with the vehicle. That was true; however, Linde's duty was to exercise reasonable care in carrying out its functions of diagnosis and repair. The fact that the experts were unable to diagnose the fault was evidence that, exercising reasonable care and on the basis of the information available to it, Linde was not negligent nor in breach of its contractual obligations in failing to carrying out the repairs. It was not a guarantor of the safety of the vehicle. Nestlé was on sounder ground in submitting that, to the extent that Mr Raad required additional information in the form of a more complete description of the problem, it was up to Linde to give direction to Nestlé. [56] 2. Putting to one side the question of seatbelts or other forms of restraint, the substance of the claim upheld against Nestlé was that it failed to institute an adequate system for reporting defects to Linde. On one view, neither the plaintiff's pleading against Linde, nor Nestlé's pleading by way of cross-claim, identified that as a failing of Linde. The plaintiff's particulars of negligence in that regard were found in cl 28 of the statement of claim (set out above), a clause which was not adopted and repleaded in Nestlé's cross-claim. 3. The written submissions for the appellant went no further than the passage set out above. In its written submissions in response, Linde maintained that there was no negligence in failing to diagnose and repair the defect and that Linde "was only given limited information [from] which it could carry out a diagnosis and repair." [57] 4. In the course of oral argument, senior counsel for Nestlé did not directly suggest that if it were liable for failing to establish a reasonable system of communication with the repairer, the repairer bore some responsibility for that failing. Rather, in response to a question relating to the duty to make sure that the technician was in possession of all available information, counsel submitted that unless "there was some history that the information given to the technician was inadequate or some reason to suspect it was inadequate", because the system had worked "for years and years", there was no breach. [58] Counsel further submitted: [59] "The other thing about that is that there's no evidence here that Mr Raad, Mr Gorman or anybody else ever suggested that the system of communication was inadequate." 1. In short, although Nestlé had fought vigorously, in support of grounds 1 and 2, that all relevant information was supplied and that the system of communication was, contrary to the judge's finding, adequate, there was no clear attempt to rely upon a faulty system of communication in seeking to establish that at least part of the responsibility for such a system lay with Linde. 2. Shortly before lunch on day 2, in the course of submissions by senior counsel for Linde, the following question was posed: [60] "The substance of your response, apart from this point, appears to be … that no one knows what was wrong with the forklift, you can't be liable for failing to diagnose. I would have thought that begs a question which is whether you should've asked some questions, and that seemed to me to be the force of the expert evidence at p 254 of volume 1 of the blue book, we were taken to this morning in answer to question 13(a), 'The prudent mechanic might've sought advice from Mr Connell and if no fault were found or repaired, Mr Connell should've been aware of it'. In other words it is true that [Nestlé] doesn't pass on information to you and perhaps they are negligent in doing that. It might also be true that you don't ask for information which might more clearly identify what the symptoms were which you were being asked to diagnose and treat, and that might be negligent on your part." 1. It should be noted that the experts were not responding to a question which directly asked about problems in the communication of information from the operator to Linde: rather, question 13(a) was as follows: "13 Having regard to the report by Mr Connell … and the tag-out procedures then in place: (a) were the proper procedures adopted before the machine was put back into service?" 1. The response of senior counsel for Linde was, in substance, in two parts. His first response was that the system for conveying information was, and had proved over many years, to be entirely adequate for the kinds of breakdown and defects usually encountered. Secondly, in the circumstances which arose on 10 August 2012 the problem was novel and extraordinary. However, the only people who knew that were the employees of Nestlé, namely Mr Connell and Mr Lloyd. As senior counsel put it, "[t]he fault is in the inadequate provision of information and that stops with Nestlé in this case." [61] After further discussion, including difficulties in knowing precisely to whom in Nestlé and in what terms, Mr Connell's account was conveyed before someone in the Nestlé office typed the words "speed playing up" in the call to Linde, counsel stated: [62] "[A]gainst those facts, there was no circumstance from which the scope of Linde's duty of care springing from the agreement, to give it its genesis, mandated or required in the exercise of reasonable care any further inquiries down the line – that is for example, to walk over to wherever Mr Connell may be – assuming he was on a shift at the time – and to start interrogating him." 1. The adequacy of this response is to be assessed against the failure of the cross-claim to plead precisely Linde's responsibility for establishing a system of communication in respect of faults in the forklifts, together with the absence of a ground of appeal which fairly identified that issue and an absence of any clear submission, either written or oral, on the part of Nestlé articulating the point. Linde's response to the question raised (and pursued in different formulations by members of the Court) was adequate in those circumstances. It may be observed that if it had not been adequate to deflect that aspect of the claim, it would certainly have resulted in an apportionment of a large part of the responsibility to Nestlé. 2. There remains the question of the duty of Linde to advise Nestlé to fit seatbelts or other forms of restraint on their reach forklifts. Although the trial judge dealt with the question as one of causation, not being persuaded that Nestlé would have taken such advice had it been proffered, Linde defended its position on the further ground that it had no duty to advise Nestlé in relation to additional safety precautions with respect to forklifts which Nestlé owned. Further, to the extent that a new model of Linde forklifts was fitted with seatbelts, that did not impose an obligation on Linde to advise the owners of previous models which remained in operation of the need to consider upgrading the safety of those models. Finally, if Linde's duty of care as manufacturer did not require it to take that step, there was nothing in its maintenance agreement with Nestlé that imposed such an obligation. 3. The reasoning of the trial judge with respect to causation turned on the evidence that Nestlé was aware that the new forklifts were fitted with seatbelts, and recognised that as a safety device, at some stage of its 2008 Risk Assessment. It had considered updating its fleet but rejected that option. It had apparently also rejected the option of retrofitting seat belts, for which Mr Raad had submitted a quote. The judge was right to conclude that had Linde given further advice as to fitting seatbelts it would not have been followed. It may be added that there was no precise formulation as to the necessary wording of such advice. In circumstances where there was no clear industry view as to the need for seatbelts or restraining devices on reach forklifts, and in circumstances where Nestlé was as aware of the possible safety issues as Linde, there was no duty on Linde to give advice in terms likely to have led to action by Nestlé. 4. In the circumstances, the challenge to the failure of the trial judge to uphold Nestlé's cross-claim against Linde should be rejected. Conclusions 1. For the reasons set out above, Nestlé's appeal against the judgment in favour of Mr Metri must be rejected. In that circumstance, it is not necessary to address Mr Metri's cross-appeal against Linde. Nestlé's challenge to the dismissal of its cross-claim against Linde must also be dismissed. 2. The Court should make the following orders: 1. Dismiss the appeal by Nestlé Australia Ltd against the judgment in the Common Law Division of 7 April 2021. 2. Dismiss the cross-appeal by Toufic Metri filed on 7 July 2021. 3. Order that Nestlé Australia Ltd pay the costs of Mr Metri and Linde Material Handling Pty Ltd in this Court. 1. LEEMING JA: I have had the considerable advantage of reading the reasons for judgment of Basten JA. I agree with the orders he proposes, and subject to what follows (which is confined to ground 3) with his reasons. Ground 3 concerns whether Nestle breached its duty of care by failing to retrofit a seat restraint in the forklifts. As Basten JA notes, because the primary judge found Nestle liable on two other grounds, nothing turns on this, and it is not necessary to reach a concluded view. However, I am of the view that the document upon which this finding was principally based (which was relevantly reproduced by the primary judge at [64]) and is described by Basten JA at [90] and [92]) was inapplicable to the reach forklifts. Those forklifts did not have seat restraints fitted. The reference "Tool box chat reminders to wear seat belts" cannot ever have been applicable to any of the R16HDS forklifts bought by Nestle, and indeed the document which was tendered has a handwritten "N/A" against this particular hazard. This Court is in no inferior position to the primary judge in assessing what flows from the document. It seems to me to be no small thing to require a purchaser of a forklift to install seat restraints across its fleet when the manufacturer had not done so. Like many modifications to equipment, while doing so would have addressed the risk of the operator falling from the slow-moving machine if it behaved erratically and decelerated sharply, it may have introduced other hazards. Prima facie, with a familiar safety measure such as a seat restraint, it seems reasonable to assume that a reputable manufacturer will have considered carefully whether or not they should be fitted, and only in highly unusual circumstances would the law require a purchaser to reverse the manufacturer's decision. Those reservations however do not detract from the balance of the reasoning at first instance, which suffices to sustain the judgment against Nestle. 2. BRERETON JA: I agree with Basten JA. ********** Endnotes 1. Metri v Nestlé Australia Ltd [2021] NSWSC 343 ("Metri"). 2. Metri v Nestlé Australia Ltd (No 2) [2021] NSWSC 518. 3. Metri at [217]. 4. Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 250(1). 5. Workers Compensation Act, s 151A(4). 6. Civil Liability Act, s 3B(1)(e). 7. Operating instructions, p 12, col 3. 8. Metri at [14]. 9. Metri at [12]. 10. Statement, 29 October 2012, par 26. 11. Statement at par 44. 12. Primary judgment at [140]. 13. Tcpt, 15/03/21, p 65(16)-(28). 14. See at [28] above. 15. Operating instructions, p 18. 16. Tcpt, 17/03/21, p 300(7). 17. Tcpt, p 301(15)-(24). 18. Tcpt, pp 288(50) – 289(6). 19. Tcpt, 16/03/21, p 162(15). 20. Tcpt, p 162(37). 21. Tcpt, p 172(5)-(20). 22. Tcpt, 18/03/21, p 315(10)-(17). 23. Tcpt, p 316(20). 24. Tcpt, p 317(33). 25. Tcpt, p 319(5). 26. Tcpt, p 319(45). 27. Tcpt, pp 319-320. 28. Metri at [245]. 29. (2020) 103 NSWLR 103; [2020] NSWCA 65 at [46]-[54]. 30. Menz at [46]-[47]. 31. Menz at [52], citing Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [22]. 32. Metri at [223]. 33. Metri at [224]. 34. Metri at [220]. 35. Ibid. 36. Metri at [63]. 37. Tcpt, 17/03/21, pp 227(46)–228(40). 38. Tcpt, pp 232-233. 39. Tcpt, p 233(5). 40. Metri at [74]. 41. Tcpt, pp 239(43) – 240(30). 42. Amended statement of claim, par 28. 43. Metri at [98]. 44. (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]. 45. Appellant's written submissions, 31 August 2021, par 20. 46. Tcpt, p 263(3). 47. Tcpt, p 263(45). 48. Tcpt, p 266(50). 49. Tcpt, pp 281(32)-282. 50. Appellant's written submissions, par 39. 51. Tcpt, p 304(28). 52. Tcpt, p 304(10). 53. Appellant's written submissions, par 42. 54. Tcpt, p 319(30). 55. (1997) 42 NSWLR 307 at 317E. 56. Appellant's written submissions, par 114. 57. Written submissions (Linde) 30 September 2021, par 33. 58. CA tcpt, 22/11/21, p 41(10)-(20). 59. Tcpt, p 41(33). 60. Tcpt, 23/11/21, p 76(41). 61. CA tcpt, p 79(13) (Mr McCulloch). 62. CA tcpt, p 84(30). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2021