KELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LTD vy MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL POWELL and STEIN JJA and ROLFE AJA 20 May 1998, 16 December 1998 [1998] NSWCA 121 Mr Kelly was employed by Narrandera Shire Council as the driver of a front end loader, which he was required to drive on public streets, over railway level crossings and in other places in and around Narrandera. It could have been, but was not, fitted with a seat belt. Mr Kelly's uncontradicted evidence was that had a seat belt been fitted he would have worn it whilst driving. Early one morning Mr Kelly was driving the front end loader in the course of his employment. It was necessary for him to cross a railway level crossing, which was controlled by a stop sign and with which he was very familiar. At first instance it was found that Mr Kelly stopped at the stop sign, but failed to observe a train, for which the State Rail Authority was responsible, approaching the level crossing from his left. It was found that he was not keeping a proper lookout, and that had he been he would have observed the train, and that Mr Kelly, without taking any reasonable precautions for his own safety, commenced to drive the front end loader on to the level crossing into the path of the train. Notwithstanding that those in the train were keeping a proper lookout and immediately applied the emergency brakes after seeing Mr Kelly start to move the front end loader forward the train, which was travelling at no more than the prescribed speed, collided with the front portion of the front end loader and spun it around in a full circle. The dynamics of the situation caused Mr Kelly to be thrown out the back of the front end loader and he landed in such a way that he suffered injuries, which rendered him a paraplegic. At first instance, where the only issue litigated was liability, it was held that there was no negligence on the part of the Council in failing to provide a seat belt, because Mr Kelly had not established that even if he had been wearing one that would have prevented him suffering the injuries he did. It was also held at first instance that those in charge of the train were guilty of some negligence and that there should be judgment for Mr Kelly against the State Rail Authority, but that any such judgment should be reduced by seventy five per cent to reflect the degree of Mr Kelly's contributory negligence. On appeal by Mr Kelly, held that there was evidence that the Council was negligent in failing to provide a seat belt, which, on the uncontradicted evidence, Mr Kelly would have been wearing and that there had been a failure by the Master to give adequate reasons for his conclusions: Pettit v Dunkley [1971] 1 NSWLR 376; Tatmar Pastoral Co Pty Ltd v Housing Commission of NSW [1983] 3 NSWLR 378; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Yates Property Corporation Pty Ltd (in liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156; Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242; Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 applied, that had he been wearing the seat belt he would not have been thrown from the front end loader and, accordingly, would not have suffered the injuries he did. As those findings did not involve any question of credit there was no reason why the Court of Appeal should not substitute its view of the facts. Nature of the appeal: Whiteley Muir and Zwanenberg Ltd v Kerr (1966) 39 ALJIR 505; Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192; Warren v Coombes (1978-1979) 142 CLR 531; Voulis v Kozary (1975) 180 CLR 177; 50 ALJR 59; 7 ALR 126; Taylor v Johnson (1982-1983) 151 CLR 422; 57 ALJR 197; 45 ALR 265; 2 UNREPORTED JUDGMENTS Lend Lease Development Pty Ltd v Zemlicka [1985] 3 NSWLR 207; Moran v McMahon (1985) 3 NSWLR 700; Chambers v Jobling (1986) 7 NSWLR 1. Held that the appeal by Mr Kelly against the judgment for the Council should be upheld and, by majority, that the degree of contributory negligence of Mr Kelly, as between himself and the Council, should be assessed at twenty per cent. On appeal by State Rail Authority, held by majority, that there was no evidence of negligence on the part of those who had the control of the train, who were keeping a proper lookout, travelling at a reasonable speed, had observed the front end loader to stop at the stop sign and had no reason to believe that the front end loader would then start to move in front of the train and that, accordingly, the appeal by State Rail Authority should be upheld. The principles applicable in level crossing conditions considered: The Commissioner of Railways v Leahy (1905) 2 CLR 54; Fraser v The Victorian Railways Commissioners (1909) 8 CLR 54; Alchin v Commissioner for Railways (1935) 35 SR 498, 502; Packham v Commissioner for Railways (1941) 41 SR 146; The South Australian Railways Commissioner v Thomas (1951) 84 CLR 84; Caledonian Collieries Ltd v Speirs (1956-1957) 97 CLR 202; Commissioner for Railways v Dowle (1958) 99 CLR 353; Perceval v Commissioner for Railways (1961) 62 SR 233; Cliff v Midland Railway Co (1870) LR 5 QB 258, 261; Ellis v Great Western Railway Co (1874) LR 9 CP 551, 555; Liddiatt v Great Western Railway Co (1946) KB 545, 550. In view of the finding that the Council was liable and of a concession made before the Master the appeal by the worker's compensation insurer of the Council against the motor vehicle insurer of the Council be allowed. Powell JA The facts which have given rise to these appeals and this cross-appeal have been set out in the Judgment which has been prepared by Rolfe AJA, which Judgment I have had the opportunity to read in draft, and need not be repeated by me. The following matters appear to me to call for consideration: 1. in what manner is the Court to proceed when dealing with Mr Kelly's appeal against the First Respondent ("the Council") and with the cross-appeal by the Second Respondent ("the SRA") and the Third Respondent ("Mr Bamford"); 2. whether Mr Kelly has established a breach of the Council's duty of care toward him and that that breach was the, or a, cause of the injuries which were sustained by him; 3. what was the extent of any duty of care owed by the SRA and Mr Bamford to Mr Kelly, and whether there was a breach of that duty of care; 4. if Mr Kelly's appeal against the Council is successful, but the appeal by the SRA and Mr Bamford against Mr Kelly is unsuccessful, what is the position of the Council, on the one hand, and the SRA and Mr Bamford on the other, in respect of any damages to which Mr Kelly may be found entitled; 5. if the Council, the SRA and Mr Bamford are held liable for any damages to which Mr Kelly may be found entitled, how is the question of Mr Kelly's contributory negligence to be dealt with; 6. if the Council, the SRA and Mr Bamford are held liable for any damages to which Mr Kelly may be found entitled, how is the question of contribution between the Council, on the one hand, and the, SRA and Mr Bamford, on the other, to be dealt with; 7. whether or not the SRA and Mr Bamford are held liable to Mr Kelly, if the Council is held liable for any damages to which Mr Kelly may be found entitled, what is the position inter partes GIO Workers Compensation (NSW) Ltd ("the GIO") and Mercantile Mutual Insurance (Australia) Ltd ("NM") and how is any question of contribution between them to be dealt with. I will deal with each of these matters separately. UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LTB v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Powell JA) 1. In what manner is the Court to proceed. S75A(5) of the Supreme Court Act 1970 provides that, in a case such as this was, an appeal shall be by way of rehearing. Although, for a time (see, for example, "Whiteley Muir and Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192), there was some controversy as to the content of the word "rehearing", that controversy appears to have been put to rest by the decision of the majority (Gibbs ACJ, Jacobs and Murphy JJ) in Warren v Coombes ((1978-1979) 142 CLR 531; see also Voulis v Kozary (1975) 180 CLR 177; 50 ALJR 59; 7 ALR 127; Taylor v Johnson (1982-1983) 151 CLR 422; 57 ALJR 197; 45 ALR 265; Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207; Moran v McMahon (1985) 3 NSATR 700; Chambers v Jobling (1986) 7 NSWLR 1). In the course of their Judgment in Warren v Coombes, Gibbs ACJ, Jacobs and Murphy M said ((supra) at 552- 553): "The duty of the appellate court is to decide the case - the facts as well as the law -for itself. In so doing it must recognise the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question. The only arguments that can be advanced in favour of the view that an appellate court should defer to the decision of the trial judge on such a question are that opinions on these matters frequently differ, and that it is in the public interest that there should be finality in litigation. The fact that judges differ often and markedly as to what would in particular circumstances be expected of a reasonable man seems to us in itself be a reason why no narrow view should be taken of the appellate function. The resolution of these questions by courts of appeal should lead ultimately not to uncertainty but to consistency and predictability, besides being more likely to result in the attainment of justice in individual cases. The interests of the community in the speedy termination of litigation might, no doubt, be an argument in favour of the complete abolition of appeals, although that would be far too high a price to pay merely for finality. However, if the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong they should correct it. In the present case, the Court of Appeal was, and this Court is, obliged to reach its own conclusion as to the inferences to be drawn from the primary facts found by the learned trial judge. Having given due weight to the conclusion reached by the learned trial judge we are unable to agree with it." However, while an appellate court with jurisdiction to entertain on appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong, as Deane and Dawson JJ point out in their joint Judgment in Devries v Australian National Railways Commission ((1992-1993) 177 CLR 472, 479-480; see also Abalos v Australian Postal Commission (1990) 171 CLR 167): 4 UNREPORTED JUDGMENTS "When such a finding is wholly or partly based on the trial judge's assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and heating. the witnesses give their evidence. The 'value and importance' of that advantage 'will vary according to the class of case, and... (the circumstances of) the individual case'. If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant. If the finding is unaffected by such error or mistake, it will be necessary for the appellate court to assess the extent to which it was based on the trial judge's conclusions about the credibility of witnesses and the extent to which those conclusion were themselves based on the observation of witnesses as they gave their evidence as distinct from the consideration of the content of their evidence. In a case where it appears that a challenged finding of fact has, to a significant extent, been based on the trial judge's observation of the demeanour of the witnesses, the members of an appellate court are inevitably placed in a position of real disadvantage compared with the trial judge. Even in such a case, however, the 'court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions."" 2. Mr Kelly's appeal against the Council It was not in dispute that the Council, as Mr Kelly's employer, was under a, duty to take reasonable care for Mr Kelly's safety while carrying out his duties, nor was it in dispute that, as part of that duty, the Council was obliged to provide proper plant and appliances to enable him to carry out those duties and to maintain that plant and those appliances in a proper condition. What was, however, in issue in this respect was whether, by reason of the Council's actions or inaction, Mr Kelly was exposed to a risk of injury which by the exercise of reasonable care might have been foreseen and avoided. In order that he might obtain a finding that the Council was liable to him because of a breach of its duty to take care it was necessary for Mr Kelly to establish: (a) that there was a risk of injury which was reasonably foreseeable; (b) that there was a reasonably practicably means of obviating that risk; (c) that his injury belonged to the class of injuries to the risk exposed him; and (d) that the Council's failure to eliminate the risk showed a want of reasonable care for Mr Kelly's safety. As I understand it, the manner in which Mr Kelly sought to establish the Council's breach of duty to him in this respect was as follows: (a) that if the front-end loader were to be involved in a collision or other form of accident, whether while being driven on the public roads or otherwise, there was a risk that the driver of the loader might sustain injury, which risk, although reduced by, had not been obviated by, the provision of a ROPS cabin; (b) that risk of injury could be further reduced, even if not completely removed, by the provision of a lap type seat belt, which would prevent the driver being thrown from the cabin in the event of the loader being involved in a collision or other like accident; UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LTB v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Powell JA) (c) that Mr Kelly's injuries were suffered when he was thrown from the cabin following the collision between the train and the loader and when he struck the ground after having been thrown from the cabin; (d) that, since there were anchorage points for the fitting of a lap type seat belt provided and such a seat belt could readily have been fitted, the Council's failure to have such a seat belt fitted showed a want of reasonable care on its part for Mr Kelly's safely. This being the nature of the case which, in this respect, Mr Kelly sought to establish at trial it was, in my view, incumbent upon the Master to deal with it - in particular, it was in my view necessary for the Master to determine whether, if a seat belt had been fitted, Mr Kelly's injury would probably have been averted. This, however, the Master did not do. The Master not having decided that issue, and the onus of proof, if Mr Kelly is to succeed on this aspect of the matter, lying on him to show at least on the balance of probabilities that the failure of the Council to provide a seat belt caused or materially contributed to his injury, it is thus necessary for this Court notwithstanding the conflicting evidence which was given the issue, to determine that question for itself. Having considered the conflicting evidence as best as I might, I have concluded: 1. if the loader were involved in a heavy front end collision or like accident then, even if the loader were fitted with a lap type seat belt which was being worn by the driver, it would be likely that the driver would sustain injury, which injury - because the movement of the upper torso is unrestrained - would be serious and could include a spinal injury causing paraplegia; 2. if, however, the loader were involved in a heavy side-on collision or other accident subjecting the loader to significant rotational forces, then the fact that the loader was fitted with a lap type seat belt which was being worn by the driver, while not preventing the driver from sustaining injury within the cabin, more probably than not would prevent the driver being ejected from the cabin; 3. the probability is that the injury which led to Mr Kelly's paraplegia was not sustained within the cabin of the loader but was sustained when Mr Kelly struck the ground after being ejected from the cabin. In the light of these conclusions, and the unchallenged evidence of Mr Kelly having been that, if a seat belt had been fitted to the loader he would have worn it (as to the relevance of this evidence see Qualcast (Wolverhamption) Ltd v Haynes [1959] AC 743; McWilliams v Sir William Arrol & Co Ltd [1962] 1 WLR 295; Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410; 1 ALR 125) it seems to me that, although the probability is that, even if a lap type seat belt had been fitted to the loader and been worn by Mr Kelly, he would still have sustained injury, he has discharged the onus of showing that the failure to provide a seat belt caused or materially contributed to the injury which he in fact sustained. This being so, Mr Kelly's appeal against the order dismissing the proceedings as against the Council should be upheld. I leave, until later, a consideration of the basis upon which the damages for which the Council might be held liable should be determined. 3. The SRA's appeal against Mr Kelly 6 UNREPORTED JUDGMENTS As I understand it the SRA does not dispute that it owes a duty of care to users of the road at level crossings, but it says that, in the present case, Mr Kelly has failed to demonstrate a breach of that duty of care toward him and, still less, has failed to demonstrate that the injury which he sustained was the result of any breach of that duty toward him. The nature and extent of the duty of railway commissioners in respect of level crossings has been discussed in a number of authorities over the years (see, for example, The Commissioner of Railways v Leahy (1905) 2 CLR 54; Fraser v The Victorian Railways Commissioners (1909) 8 CLR 54; Packham v Commissioner for Railways (1941) 41 SR 146; The South Australian Railways Commissioner v Thomas (1951) 84 CLR 84; Caledonian Collieries Ltd v Speirs (1956-1957) 97 CLR 202; Commissioner for Railways v Dowle (1958) 99 CLR 353; Perceval v Commissioner for Railways (1961) 62 SR 233). In Commissioner for Railways v Dowle (supra) Dixon CJ, who delivered the Judgment of the Court (Dixon CJ, McTiernan, Fullagar and Taylor or JJ) said ((supra) at 358 - 359): "From a general view of the scene to be gathered from the plan and the photographs displayed to them the jury would be well entitled to draw the inference that some special care was necessary. By, special care I mean not that any degree of care is necessary which goes beyond what is incumbent upon a railway authority in the case of all level crossings, but that the dangers which an open level crossing with a diagonal road necessarily involves where there is population and traffic call for particular consideration. In the recent case of the South Australian Railways Commissioner v Thomas ((1951) 84 CLR 84) this Court gave attention to the formulation of the law which governs the duty of railway commissioners in respect of level crossings. What was said was this: 'In considering whether adequate warning was provided at a level crossing over a public road all the circumstances, of the locality and of the traffic passing over it and the conditions, prevailing at the relevant time must be taken into consideration: Alchin v Commissioner for Railways ((1935) 35 SR 498, 502). The duty of the commissioner is to do everything which in the circumstances is reasonably necessary to secure the safety of persons using the crossing: Cliff v Midland Railway CO ((1870) LR 5 QB 258, 261); Ellis v Great Western Railway Co ((1874) LR 9 CP 551, 555) Liddiatt v Great Western Railway Co ({1946] AB545, 550). This must include the duty to give reasonable warning of the approach of a train when the commissioner does not provide gates which are closed when a train is approaching. That duty is not fulfilled by providing means which would enable persons of acute vision and healing exercising the most anxious care to avoid injury. The fact that all sorts and conditions of people use the highway must be taken into account, and, whilst the commissioner is not required to protect against their own carelessness people who proceed without any regard to their own safety, it is his duty to take every reasonable precaution to ensure that the level crossing will be safe for the members of the public generally who act with due care while exercising their rights of passing over it." In the present case the question whether due care was exercised appears to us to be essentially one for the jury. All sorts of expedients may suggest themselves, drawn from common knowledge of what is done on railways, as a means of adding additional precautions to those which were in fact taken. Here we have simply an open crossing with halt signs, a crossing where the visibility to the left was very much restricted for traffic approaching the crossing from the northern side. UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LTD v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Powell JA) Audibility is another question; it has to be remembered that in modern conditions there are many occasions of which it may be said either that the vehicles make so much noise themselves or that there is so much noise surrounding them that it is not by any means certain that a person inside one of them will be able to hear the whistle of an engine." It seems to me that it could not be said that the SRA by its servants, Mr Bamford and Mr Bright did all that was reasonably necessary to ensure the safety of persons using the crossing. It is to be recalled, first that it appears to be a common place for traffic to cross level crossings without observing stop signs (AB323). Next it is to be recalled that, on the day in question, when the train was at a distance of between 1,000) and 1,500 metres from the crossing (AB293, 322), three, vehicles were noticed crossing the crossing, a few seconds apart, without halting at the stop sign, a fact which led either or both of Mr Bamford (AB293) and Mr Bright (AB322) to comment on the matter. Next it is to be remembered that Mr Kelly's loader came into Mr Bright's view as the last of the three vehicles was in the process of crossing (AB295). Then it is to be remembered that, at the time when Mr Bright and Mr Bamford first saw the three vehicles crossing the crossing, the train was travelling at a speed of between 60 kph - about 16.66 metres per second - and 65 kph - about 18.05 metres per second; assuming that, when the vehicles were first observed, the, train was at a distance of 1 000 metres from the crossing and assuming that it maintained its speed meantime, it would have taken the train between 55 (at 65 kph) and 60 (at 60 kph) seconds to cover the distance to the crossing. The only, action which Mr Bamford and Mr Bright appear to have taken upon seeing the motor vehicles cross without halting at the stop sign was to sound the whistle - no attempt was made to reduce speed. Even if, despite Mr Bright's evidence that the three vehicles crossed only a, few seconds apart, one allows some 15 seconds before Mr Kelly's loader was seen to approach the stop sign, the train would, at that time, still have been at a distance of some 720-750 metres from the crossing - if the train were to continue at a speed of 65 kph it would take approximately 40 seconds to cover the 720 metres to the crossing, while if the train were to continue at 60 kph it would take approximately 45 seconds to cover the 750 metres to the crossing. When Mr Kelly's loader came into view, it would have been apparent that, far from this being a vehicle which could cross the crossing in very short order, the vehicle was large, heavy, slow moving and, in all probability, a very noisy piece of equipment. Despite this, no further action was taken by Mr Bamford at the time beyond sounding the train's whistle, no attempt being made to apply the brakes to ease the speed on the train. In the light of one of the submissions advanced on behalf of the SRA, it is pertinent to observe, first, that the train was not an express train, but was an unladen goods train, that at the point when Mr Kelly's loader came into view the train would have been a little more than 1,500 metres from the Narrandera Railway Station at which it was due to stop before proceeding on to Yanco to load wheat; and that the journey which the train was making was not part of a scheduled timetable but one which, as it would seem, was undertaken on an "as needed" basis. Since there is no universal standard for the discharge of the relevant duty of care and the nature of the precautions to be taken depend on the nature of the particular crossing, the conditions prevailing at the time when the train is approaching it and the nature of the traffic proposing to use the crossing at that 8 UNREPORTED JUDGMENTS time, it is no answer to Mr Kelly's claim to rely upon such passages as those that appear in the Judgment of Herring CJ in Baker v The Victorian Railways Commissioners ([1949] VLR 85, 88) where his Honour (with whom Martin and Fullagar JJ agreed) said: "... Having given due warning the train driver is entitled to proceed on the basis that road users will exercise due care for their own safety, that they will stop and let the train go by, that is to say the will give him the right of way. Indeed it is difficult to see how a railway service could be conducted on any other basis. Trains are heavy things and take a long distance to pull up when travelling at any speed. If every crossing had to be approached at a speed which would enable the train driver to pull up before reaching it, should road users show no care for their own safety, it would be impossible to run an express train or to maintain any kind of satisfactory schedule. Road vehicles can, on the other hand, be pulled up in a comparatively short distance. The evidence would tend to indicate that the emergency brakes on the train were applied at a time when the train was only about 120 metres from the crossing - if, at the time, the train were travelling at 65 kph, it would cover that distance in approximately 6/2 seconds while if, at the time, it were travelling at 60 kph, it would cover that distance in a little over 7 seconds. If one assumes a reaction time of, say, 3 seconds, then, at the time when Mr Bright gave his warning, the train would have been at a distance of between 170 and 180 metres from the crossing, a point at which, given the stopping distance of the train (240 odd metres from the point of application of the emergency brakes) made it inevitable that there would be collision. However, those calculations would suggest that a period of in excess of 30 seconds - during which the train would have travelled a distance of in excess of 500 metres - elapsed between the time when Mr Kelly's loader first came into view and the time when Mr Bright gave his warning, during which time no attempt was made significantly to reduce the speed at which the train was travelling. These matters suggest to me, first, that during that period, no adequate look-out was being maintained by Mr Bamford and Mr Bright, by reason of which fact they did not take emergency action until it was too late, and, second, that, if there had been a significant reduction in the train's speed as it approached the crossing - which reduction would hardly have interfered with the running of the railway - it is highly likely that the collision could have been averted or its impact significantly reduced. That being so I conclude that the Master did not err when he found that the SRA had failed in its duty of care. 4. In the event that both the Council and the SRA be held to have caused or contributed to the injuries which Mr Kelly suffered, what is the position between them as to any damages which Mr Kelly is held entitled to recover. My conclusion that each of the Council and the SRA is to be regarded as having caused or contributed to the injuries sustained by Mr Kelly does not constitute them joint tortfeasors; rather, each of them is to be regarded as a concurrent tortfeasor (The Seacombe; The Devonshire [1912] P 21; The Koursk [1924] p140; Spicer v Carmody (1948) 48 SR 348; Speirs v Caledonian Collieries Ltd (1956) 57 SR 483). The rule of the common law was that joint tortfeasors might be sued in one action, or each might be sued in separate actions. If they were all sued in one action there was only one judgment for the full amount of the damage against all, but each defendant was liable to satisfy it in full. If one, or some only, were sued to judgment, no further action could be maintained against the others. Several UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LTB v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Powell JA) tortfeasors causing the same damage had to be sued in separate actions, although each was responsible for the full amount of the damage suffered. Several tortfeasors producing different damage had also, to be sued in separate actions and, of course, each was liable only for the damage lie himself caused. The common law position to which I have just referred was amended in a number of respects by the provisions of the Law Reform (Miscellaneous Provisions) Act 1946, of which provisions it is sufficient, at the present time, to note the following: "2(1) In an action of tort in any court to which this Part applies the following provisions shall notwithstanding anything contained in any Act which regulates the procedure and practice of the court, have effect: (a) all persons may be joined as defendants against whom the tight to any relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly or severally or in the alternative where if separate actions were brought against such persons any common question of law or fact would arise, and judgment or verdict and judgment may be given against one or more of the defendants as may be found to be liable, according to their. respective liabilities, without any amendment. 5(1) Where damage is suffered by any person as a result of a tort (whether a crime or not): (a) judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other tortfeasor who would, if sued, have been liable as a joint tortfeasor in respect of the same damage; In Spicer v Carmody (supra) Jordan CJ described the operation of s2(1)(a) of the Act in the following way ((supra) at 351): "At common law, however, an action in which the declaration alleged a separate cause of action against each of several defendants was not allowed to proceed. $2(1)(a), which is adapted from English O16 r4 is directed to this difficulty. It provides that, in case of tort, if a transaction or series of transactions is alleged to give a plaintiff a right to relief against a number of persons, whether jointly or severally or in the alternative, all may be joined as defendants in a single action if, assuming that separate actions were brought, any common question of law or fact would arise, and judgment or verdict may be given according to their respective liabilities. Thus, s2(1)(a) is directed merely to an unessential point of procedure. It goes no further than to enable a plaintiff to lay claim regularly, at the outset of his pleading, to something which he could otherwise have obtained only as a result of an initial irregularity in his pleading. Despite this, in Speirs v Caledonian Collieries Ltd (supra), one of the several tortfeasors had sought to maintain that the provisions of s2(1)(a) authorised the court - in that case the jury - to apportion the damages as against the successful plaintiff between the two defendants, a submissions which was rejected in the Full Court. In this regard, Street CJ and Herron J (as he then was) said ((supra) at 503): "With regard to the appeal by the plaintiff on the ground that it was not open to the jury to apportion the damages as against the plaintiff between the two defendants in the proportion of 70% and 30% respectively, we hold that the appeal must be upheld and the jury's apportionment disregarded. In our opinion, 10 UNREPORTED JUDGMENTS the jury were bound, having found for the plaintiff, to find a verdict for the full amount against each defendant. S2(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1946, does not entitle the jury to take the course which they did, and their finding as to the relative proportions of liability of the defendants must be disregarded when judgment is signed. We agree with the reasons of Myers J on this aspect of the case and do not wish to add anything to them. It should be noted that Mr Asprey on behalf of the (plaintiff) argued that he was entitled to succeed against (Caledonian Collieries Ltd) on the footing that it was a joint tortfeasor with Crofton Collieries. We are unable to agree with this submission and are of the opinion that this case is one of independent acts of negligence on the part of each of the defendants, such as was dealt with in The Koursk" while Myers J said ((supra) at 511-512): 'The appellant Caledonian Collieries Ltd claims that s2(1)(a) has completely altered this law. It has first enabled all tortfeasors to be sued in one action, whether the plaintiff claims against them jointly, severally, or in the alternative and then, by providing that judgment may be given against them according to their respective liabilities without amendment, had altered the liability of joint tortfeasors and several tortfeasors so that each is liable for only apart of the damage. So run the submissions. Strong indications the section was intended to alter only the law of procedure are to be found in the opening words of the section 'Notwithstanding... any Act which regulates the procedure and practice of the court' and the circumstance that the provision in question was taken from OXVI, r4 of the English Rules of the Supreme Court, which could only affect procedure. But the expression relied on by the appellant is quite inappropriate to effect a change in the substantive law. The concluding part of the section means that if a plaintiff has joined a number of alleged tortfeasors as defendants in one action, judgment may be given against each found to be liable according to what is found to be his actual liability and irrespective of how he is sued. The word 'may' is permissive in that it enables the court to do what it would otherwise have no power to do, namely to enter judgment according to what is held to be the true liability of the defendants, no matter how they are sued and without any amendment which might otherwise be necessary, to make the pleadings accord with the verdict and judgment in this respect. In Spicer v Carmody this Court held that s2(1)(a) was directed only to procedure, and nothing has been said in argument to shake the authority of that decision. I have no doubt that a plaintiff is still entitled to a joint judgment for the full amount of the damage suffered against all defendants held to be liable as joint tortfeasors and to separate judgments for the full amount against every several tortfeasor held to be liable whose wrong produces the same damage. In all cases where joint tortfeasors or several tortfeasors causing the same damage are held to be liable, the plaintiff is entitled to a joint judgment or separate judgments, as the case may be, for the full amount of his damage against all of them. Their rights as between themselves must be determined by verdicts against each other." The provisions of s5(1)(a) were, clearly enough, directed to overcome the rule of the common law that if one, or some only, of joint tortfeasors were, sued to judgment, no further action could be maintained against the others, notwithstanding that that judgment remained unsatisfied (see Castellan v Electric UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LTD v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Powell JA) Power Transmission Pty Ltd (1967) 69 SR 159; Wah Tat Bank Ltd v Chan Cheng Kum [1975] AC 507; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984-1985) 155 CLR 448, Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574). 5. Both the Council and the SRA being liable to Mr Kelly for the full amount of such damages as he may be held entitled to, how is the question of Mr Kelly's contributory negligence to be dealt with. It is to be recalled that the rule of the common law was that, where found, contributory negligence on the part of a plaintiff operated as a complete defence to the plaintiff's action. That rule was abolished by the Law Reform (Miscellaneous Provisions) Act 1965 s10 of which, so far as is relevant, provides as follows: "10(1) Where any person suffers damage as the result partly of his own fault and party of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage: (2) Where damages are recoverable by any person by virtue of the foregoing sub-section subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault. (3) S5 of the Law Reform (Miscellaneous Provisions) Act 1946 shall apply in any case where two or more persons are liable or would, if they had all been sued, be liable by virtue of subs(1) in respect of the damage suffered by any person." S5 of the Law Reform (Miscellaneous Provisions) Act 1946 to part of the provisions of which I have earlier referred, further provides: "5(1) Where damage is suffered by any person as a result of a tort (whether a crime or not): (c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought. (2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's liability for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity. The provisions of s10(1) of the Law Reform (Miscellaneous Provision Act 1965 amid the interaction of those provisions with the provisions of s5(1)(c)(ii) of the Law Reform (Miscellaneous Provisions) Act 1946 were considered by this Court in Barisich v Devenport ({1978] 2 NSWLR 111), a case in which a labourer, who had been injured while working, on an excavation site, sought to 12 UNREPORTED JUDGMENTS recover from the excavating contractor, and from an organisation which had hired plant and its operator to the excavating contractor, damages for negligence. The excavating contractor on the one hand and the organisation from which it had hired the plant and the operator on the other cross-claimed against each other. The trial judge found for the plaintiff against the organisation hiring the plant and its operator, but in favour of the excavating contractor against the plaintiff, and he accordingly dismissed the cross-claim. He assessed damages in the sum of $50,000.00, and, having found the plaintiff guilty of contributory negligence, reduced the damages as so assessed by 40% entering judgment in favour of the plaintiff against the organisation which hired the plant and its operator for the sum of $30,000.00. On appeal and cross-appeal, the Court - (1) found for the plaintiff against all three defendants; (2) affirmed the assessment of damages at $50,000.00; and (3) reduced the factor for contributory negligence from 40% to 30%. Thus the amount which the plaintiff recovered against the organisation which hired the plant and its operator jointly, and against the excavating contractor severally, was $35,000.00. On the third party claims for contribution, the Court assessed the liability of the organisation which the hired the plant and its operator, as against the excavation contractor, at 10%; and of the excavation contractor as against the organisation which hired the plant and its operator at 90%. It entered Judgment for the former against the later for $31,000.00 and for the latter against the former for $3,500.00, a total of $35,000.00. Although the reasons by which the various members of the Court (Moffitt P, Hope and Samuels JJA) reached their ultimate conclusion are not identical - Hope JA agreed in part with the reasons of Moffitt P and in part, with the reasons of Samuels JA - in the end the conclusion which their Honours reached as to the manner in which the Court should proceed in a case such as that was - and as this is - was the same. That conclusion is summarised by the headnote in the following way: "(a) In a case where s10(1) of the 1965 Act applies, the comparison of fault which the sub-section requires can be made only by comparing the plaintiff's fault, on the one hand, with the combined fault of the defendants, viewed as a unit, on the other; (b) The principle to be applied in such cases is this: where two or more independent concurrent tortfeasors are sued, the extent to which the plaintiff's damages should be reduced on account of his own negligence should be that which is just and equitable having regard to his departure from the standard of the reasonable man; (c) Application of this principle will preclude at this stage (i) any appraisal of the extent of the individual or combined culpability of the defendants, and (ii) any comparison of the culpability of the plaintiff and the defendants individually, or of that of the defendants inter se; (d) It is only after the shares to be borne by the plaintiff, on the one, hand, and by the defendants, on the other, have been established, that it becomes appropriate to apportion the, defendants share between them. That this statement reflects the ultimate conclusion of the members of the Court is, I suggest, indicated by the following passage in the Judgment of Hope JA ((supra) at 131-132): UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LTB v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Powell JA) "T agree with the conclusion of Moffitt P, and of Samuels JA, that s10 does not affect the general requirement of the common law that, in an action against a number of tortfeasors to recovery damages for loss sustained by the plaintiff, the judgments should be solidary, that is, they should be in the same amount. The application of other statutory provisions may alter this requirement, but s10, by itself, does not. S10(1) deals with the situation where a plaintiff has suffered damage as a result partly of his own fault and partly of the fault of any other person or persons. It then requires that the damages recoverable by the person making the claim shall be reduced to such extent as the court thinks just and equitable, having regard to his share in the responsibility of the damage. This language requires the court to identify the whole of that responsibility, and to determine the claimant's share in the whole. This exercise is different from that required by s5 of the Law Reform (Miscellaneous Provisions) Act 1946, which relates to contribution between tortfeasors. This latter section is not directed to the claimant's share in responsibility for the damage, but to the relative shares in the responsibility for that damage of the tortfeasors who are liable in respect of the damage. The distinction is emphasised by the provisions of s5(2) of the Act, giving the court power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity. If appropriate, claims are made for contribution then, logically, the determination of those claims must follow the determination of the share of the plaintiff in the responsibility for the damage, for it is not until then that the liability is ascertained in respect of which contribution is sought. I appreciate that in some cases, and particularly where one or more of the defendants brings a cross-claim in respect of his own damage, this compartmentalisation of the processes may seem a little artificial, and consistency which is one of the purposes of the legislation, will require the court to consider the effect of all its conclusions in cases involving cross-actions and some other multiple proceedings. But it is nonetheless what the various statutory provisions require. Although the making of the assessment may often be difficult, it is, in my opinion, to the relevant acts and omissions of all persons responsible for the damage, as a whole, that the court must have regard, and the assessment which it must make is of the share in that total responsibility which is constituted by the relevant acts and omissions, of the plaintiff. The language of the section does not suggest to me that it requires a quantification of the shares of responsibility of each of the responsible persons other than the plaintiff (which persons, for ease of expression, I shall call the defendants), the adding together of the shares so quantified to arrive at the defendants' total share, and then, by deduction, the quantification of the plaintiffs share. Such a process would involve making an assessment in respect of each of the defendants which the section only authorises to be done in respect of the plaintiff. Whether there be one defendant, or a number of defendants, whose fault, or aggregated fault, has to be taken into account along with the fault of the plaintiff, it may be necessary to make an assessment in relation to different kinds of fault, and to aggregate different kinds of fault. Thus, in the present case, it is necessary to form a view as to the degree of departure from the standard of care of the reasonable man, and the 'causative potency of the plaintiff's failure to have 14 UNREPORTED JUDGMENTS regard to his own safety, and to determine what share that culpability comprises in an aggregate which includes all the degrees of departure from the relevant standard of care and the causative potencies of Keys' failure to see the plaintiff in time and Ford's failure, through O' Sullivan, to lay out the work in a way which included reasonable precautions to avoid the risk of injury to men carrying steel in the vicinity of the excavator operated by Keys. The faults of the plaintiff extent, and of the defendants varied in nature and but this circumstance does not avoid the necessity to assess the plaintiff's fault in relation to their totality. Approaching the present question in the way indicated by the Court's decision in Barisich v Devenport, it seems to me that, although, as I have indicated, it is my view that each of the Council and the SRA is to be, regarded as having contributed toward the plaintiff's injury, by far the greater departure from the standard of the reasonable man in the present case has been that of Mr Kelly. As the Master put it "We did not obey the traffic regulations. He did not keep a proper look-out. He did not take proper care for his own safety. If he had done so, he would not have suffered damage". That being so, I agree with the Master's conclusion that Mr Kelly's damages, when assessed, should be reduced by 75% by reason of his contributory negligence. 6. How is the question of contribution inter partes the Council and the SRA to be dealt with. This question arises because in the light of my conclusion that the Council contributed, at least in part, to the injury sustained by Mr Kelly, the Cross-Claim for contribution which the SRA had raised against the Council ought not to have been dismissed by the Master. The criterion which s5(2) of the Law Reform (Miscellaneous Provisions) Act 1946 provides for assessing the amount of contribution recoverable from a tortfeasors is that it should be proportionate to the extent of his responsibility for the damage to the plaintiff. This, so Glass JA pointed out in Fairfield Municipal Council v McGrath ([1984] 2 NSWLR 247, 252), "requires a consideration... of what is fair... having regard to their respective parts in causing injury to the plaintiff'. If the tortfeasor from whom contribution is sought be held, as between himself and the party seeking contribution, entirely responsible for the damage sustained by the plaintiff, there should be a complete indemnity to the party seeking contribution. By contrast if it be held that the responsibility sustained by the plaintiff is wholly that of the party seeking contribution, the Cross-Claim should be dismissed (Fairfield Municipal Council v McGrath (supra)) Since I can see no significant difference in the parts played by the Council, and the SRA in causing the injury sustained by Mr Kelly, I am of the opinion that each of the Council and the SRA should be entitled to recovery from the other contribution to the extent of one-half of the damages for which each will be held liable to pay to Mr Kelly. 7. The position inter partes the GIO and MMI This question arises because of the Master's dismissal of the proceedings which have been brought by the GIO against MMI, the basis for the Master's dismissing those proceedings being that, as Mr Kelly's claim against the Council had failed, no question of contribution arose between the GIO and MMI. As Rolfe AJA has noted in his Judgment, the GIO was, at the relevant time, the Council's worker's compensation insurer, while MMI was the Council's motor vehicles third party insurer. UWHELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LTB v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Powell JA) Although the form of statutory policy provided for by s155 of the Workers Compensation Act 1987 which was specified in Form 7 to the Workers Compensation (General) Regulation 1987 originally provided: "\.. If... the employer becomes liable to pay compensation under the Act to... any person who is... a worker of the employer... or becomes liable to pay any other amount in respect of the employer's liability independently of the Act... for any injury to any such person (not including liability for damages in respect of a motor accident as defined in the Motor Accidents Act 1988...) THEN, and in every such case, the insurer will indemnify the employer against all such sums for which the employer shall be so liable...." that form of statutory policy was amended with effect as from 1 October 1991 by deleting therefrom the words "liability for damages in respect of a motor accident as defined in the Motor Accidents Act 1988 or' so that, as I from 1 October 1991, the indemnity provided by an insurer under the policy issued by it in that form extended also to claims pursuant to the Motor Accidents Act 1988. The form of third party policy provided for in Schedule 1 to the Motor Accidents Act 1988 relevantly provides: "The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle... against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle in the use or operation of the vehicle... (whether or not on a public street)." It follows that, if, as appears to have been conceded by Mr P Menzies QC, who appeared for MMI on the hearing before the Master, it were held that, the fact that the Council did not provide a seat belt in the loader caused or contributed to the injury sustained by Mr Kelly, then that injury was to be described or treated as n "injury to a person caused by the fault of the owner.. in the use or operation of the vehicle... ", then each of the policies issued by the GIO and MMI indemnified the Council against liability in respect of that injury - that is, the situation was one of double insurance (see, for example, Albion Insurance Co Ltd v Government Insurance, Office of New South Wales (1969) 121 CLR 342; Commercial and General Insurance Company Ltd v Government Insurance Office of New South Wales (1973) 129 CLR 374). In such a situation, in the absence of any limitation upon the extent of the liability of either insurer, each is entitled to recover as against the other one half of the amount paid by it to, or on behalf of its insured by way of indemnity. Although, in the Written Submissions which were filed on its behalf, MMI submitted that, in the event of Mr Kelly's appeal against the Council being upheld, and the appeal by the GIO against MMI being upheld, the question of contribution inter partes the GIO and MMI should be the subject of a retrial, however, in the course of his oral submissions (T 48-49) Mr J D Hislop QC, who appeared on the hearing for MMI, said: "We submit the position so far as my client is concerned is this. The Master made no error in respect of the unreasonableness question. That finding is determinate of the issues joined between the plaintiff and the Council. If the Court upholds that view then there is no verdict in relation to which the principles of dual insurance can apply. Likewise, if the Court was to take the view on the causation issue that the Master was correct in saying that he would not have found that the plaintiff had established that either, then that too would lead to the upholding of the verdict in favour of the Council against the plaintiff again there would be no application or reason for application of the principles of double insurance. It would only be in the event that this Court was to take a different 16 UNREPORTED JUDGMENTS view to that which we have submitted should be accepted and seek to enter a verdict for the plaintiff against the Council in relation to the seat belt question. If that happened then there would be a question which would arise for determination as to whether there should be an application of the principles of double dual insurance. If the Court sought to enter a verdict on that basis, then there was a concession made by counsel appearing on behalf of my client in the court below at 329H-J and it would seem to me that if this Court was minded to enter a verdict against the Council then that concession made at that hearing would be binding upon me, so I don't seek to put any submissions to this Court in relation to that aspect of the matter if the Court contrary to the submissions which I have put, determined that there should be a verdict for the Council (sic). On the other hand, if the Court was to determine the matter should be returned for a rehearing, then I would not wish to be fettered by something that occurred in the first hearing, I believe that that essentially covers the submissions that I would wish to put to the Court. In the circumstances, it seems to me that the GIO's appeal should be upheld and that there should be made a declaration that the GIO is entitled to recover contribution against MMI. 8. Orders For these reasons I would propose that the following Orders be made: A. In matter No CA 40553/97 1. ORDER that, insofar as it relates to the First Respondent, the appeal by the Appellant should be allowed. 2. ORDER that the Judgment in favour of the First Respondent be set aside. 3. ORDER that, in lieu thereof, Judgment be entered in favour of the Appellant against the First Respondent for damages to be assessed, such damages, when assessed, to be reduced by 75% by reason of the Appellant's contributory negligence. 4. ORDER that the proceedings be remitted to the Common Law Division for the purpose of assessing such damages. 5. ORDER that the First Respondent pay such of the Appellant's costs of the hearing at first instance as relate to the issue of the liability of the First Respondent together with the Appellant's costs of the appeal. 6. ORDER that the costs of the hearing as to damages be reserved to the Judge or Master conducting the hearing. 7. ORDER that, if qualified, the First Respondent have a certificate under the Suitors Fund Act 1951. 8. ORDER that the cross-appeal by the Second and Third Respondents be dismissed. 9. ORDER that the Second and Third Respondents pay the Appellant's, costs of the Cross-Appeal. 10. ORDER that the appeal by the Second and Third Respondents against the First Respondent be allowed. 11. ORDER each of the Judgment in favour of the Second and Third Respondents on the Cross-Claim brought by the First Respondent and tie Judgment in favour, of the First Respondent on the Cross-Claim brought by the Second and Third Respondents be set aside. 12. DECLARE that the Second and Third Respondents are liable to pay to the First Respondent, by way of contribution, one half of damages for which the First respondent is found liable to the Appellant. UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LIZ v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Stein JA) 13. DECLARE that the First Respondent is liable to pay to the Second and Third Respondents, by way of contribution, one half of the damages for which the Second and Third Respondents are found liable to the Appellant. 14. IN EACH CASE DIRECT the entry of Judgment for the amount such contribution when the amount of such damages has been determined. 15. MAKE NO ORDER as to the costs of the appeal brought by the Second and Third Respondents against the First Respondent. 16. MAKE NO ORDER as to the costs of either Cross-Claim. B. In matter No CA 40683197 1. ORDER that the appeal be allowed. 2. ORDER that the Judgment in favour of the Respondent be set aside. 3. DECLARE that the Respondent is liable to pay to the Appellant, by way of contribution, one half of the sum or sums paid or payable by the Appellant to, or on behalf of, the Narrandera Shire Council by way of indemnity, pursuant to the policy of insurance referred to in para2 of the Statement of Claim, against such sums for which the said Council shall be held liable to pay in proceedings No R400081 in the Common Law Division of the Court. 4. RESERVE to the Appellant liberty to apply in the Common Law Division of the Court for the purpose of having the amount of such contribution determined and for Judgment in the amount of such contribution when determined. 5. ORDER that the Respondent pay the Appellant's costs of the hearing at first instance up to and including 14 August 1997 and the Appellant's costs of the appeal. 6. RESERVE further costs to the Judge or Master dealing with application in the Common Law Division pursuant to O4. Stein JA I have had the benefit of reading the draft judgment of Rolfe AJA. In terms, of his findings and conclusions on the issues concerning the liability of the Narrandera Shire Council, I agree without reservation. Similarly, I agree with his conclusions as to the contributory negligence of the appellant (Mr Kelly) as between him and the council. I also agree with his Honour's conclusions and proposed orders in the proceedings between the GIO Workers Compensation (NSW) Ltd and the Mercantile Mutual Insurance (Australia) Ltd. The aspect of the case which has caused me the most concern is the question of the liability of the State Rail Authority (SRA). The Master found the SRA to be in breach of its duty of care to the appellant [AB485]. I have now examined the relevant evidence on a number of occasions. My initial conclusion was that the Master was entitled to find that the train should have reduced its speed as it approached the level crossing while the cars were approaching it. Further, that when the driver of the train saw the appellant's loader approach, he should have further applied the brakes in case the loader should continue onto the crossing. On a further consideration of the evidence, I am unable to conclude that the train was negligent. I agree with Rolfe AJA that the driver of the train was entitled to assume that when the loader driven by the appellant had come to a halt it would remain in a stationary position until the train had passed. Further, there can be no reasonable assumption that Mr Kelly would not have continued to observe the stop sign at the crossing, he having stopped in obedience to the sign. I note that the Mr Bright, the train driver's observer, impressed the Master as an honest and reliable witness whose evidence was to be accepted and that it accorded generally with the statement of Mr Bamford, the driver. Mr Bright said, and the Master found, that Mr Bright kept watching the crossing as the train 18 UNREPORTED JUDGMENTS approached it. Accordingly, I do not see any room to draw any inference that Mr Bright and/or Mr Bamford were not keeping a proper or adequate lookout. It seems to me that when the evidence is carefully scrutinised and weighed, the conclusion must be that it does not establish a breach of duty by the SRA. Accordingly, I also agree with Rolfe AJA with regard to the liability of the SRA. It follows that I agree with the orders proposed by his Honour. Rolfe AJA Introduction Mr Desmond John Kelly, the plaintiff and appellant, for whom Mr R J Ellicott of Queen's Counsel and Mr P R Hennessy of Counsel appeared, was born on 21 February 1954. He left school when he was about fifteen years of age and, thereafter, engaged in labouring type work in the Narrandera district. He worked for some thirteen years with the Grain Handling Authority and for about three or four years, he and his wife ran a small shop. He lived with his wife, at all material times, at 18 May Street, Narrandera, which is on the southern side of the main railway line, which runs in a basically east/west direction through that town. On 18 June 1990 he commenced employment with the first defendant and first respondent, the Narrandera Shire Council, ("the Council"), for which Mr J N Gleeson of Queen's Counsel and Mr M G Gilbert of Counsel appeared, as a general labourer and part time plant operator. Mr P Roberts of Counsel appeared for the Council and its workers compensation insurer at first instance. Mr Kelly was an experienced front end loader driver and operator and had held a licence to drive such equipment for some twenty years. He worked from 7 am until 4.15 pm, commencing and finishing his work each day at the Council's depot in Barellan Road, Narrandera, which is on the northern side of the railway line. He travelled by motor vehicle between his home and the depot, generally speaking, by a route which took him over the railway line at the Whitton Street level crossing. This crossing was controlled by stop signs on each side requiring traffic to stop before proceeding across the line, and there were white lines painted on the road, beyond which vehicles were not supposed to proceed before stopping. It was at this level crossing that Mr Kelly was involved in an accident, at about 7.15 am on 25 October 1994, as a consequence of which he received severe physical injuries which rendered him a paraplegic. On that morning he travelled to the Council depot via the Whitton Street level crossing, signed on and, after receiving his instructions for that day's work, took delivery of a front end loader registered number MWU349 which he was to use in his employment. It was registered for driving on public streets but, before it could be taken to its work place, it had to be fuelled. There had been facilities at the Council's depot for that to occur but, because a storage tank had leaked and another, for some reason, could not be used, vehicles and machinery had to be taken to a Shell depot, which was on the southern side of the railway line and, therefore, driven from the Council depot across the line. Mr Kelly had driven to the Shell depot between one and three times a week in the course of his employment, sometimes in the morning and sometimes, if passing it on the way back to the Council depot at the end of the day, in the afternoon. He was, accordingly, thoroughly familiar with the Whitton Street level crossing and driving either a motor vehicle or a front end loader across it. There was an overpass over the railway line to the west of the level crossing, but the evidence was that if, as was the case for all purposes material to this case, it was more UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LTB v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) convenient to use the Whitton Street level crossing that was done. There had only been one previous accident at the crossing and that was many years earlier. Narrandera railway station was about one kilometre to the west of the Whitton Street level crossing. The front end loader was equipped with a bucket type scoop at the front for lifting, carrying and depositing soil, road base and other material. There was a cabin over the driving area, which not only protected the operator from the elements, but was reinforced substantially so that if the machine overturned the operator would be protected from being crushed. The operator sat on a suspension seat, the back of which only came to about his mid-back. It had arm rests on both sides, and holes in which bolt type anchors could be placed to enable a lap seat belt, ie, a seat belt which strapped the operator around the waist, to be fitted. None was fitted and there was evidence that operators were not keen on using such belts because, in an emergency, they preferred to have the ability of vacating the machine without being hindered by a belt. However, Mr Kelly gave evidence that if such belt had been fitted he would have used it. This evidence was not challenged, and these reasons proceed on the basis that if a lap seat belt had been fitted Mr Kelly would have been wearing it when the accident occurred. The suspension seat did not allow for a lap-sash type belt to be fitted, nor was it submitted by Mr Kelly that there should have been one. Mr Hennessy conceded at the trial that he was conducting the case on the basis of the failure to fit a lap belt. AB329. If such a belt had been fitted and used it would have restrained the operator around the waist but not at higher body levels. To assist in evacuating the front end loader in an emergency the rear part of the cabin was of a light perspex material, which was constructed to give way or pop out when little pressure was applied to it, thus providing the operator with a reasonably easy means of exit. The front end loader had a manual gear change and a maximum speed of about twenty Kilometres per hour. It weighed approximately eight and a half tonnes and was somewhat cumbersome. Mr Kelly left the Council depot for the Shell depot, drove along Barellan Road, turned onto the Newell Highway which ran basically, parallel to the main railway line, and proceeded in a westerly direction along it before turning half left to approach the Whitton Street crossing. This meant he travelled in a basically south westerly direction, and, as he approached the crossing, the east was to his left. On reaching the designated point at the level crossing Mr Kelly stopped. The front end loader was facing towards railway line and, according to the photographs, up a slight incline. He said he observed cars pulling up behind him and a car come over the crossing from the southern side, ie, from the opposite direction in which he was travelling. He looked to his right and left. His evidence was that on looking to the left the sun was shining in his eyes so that he could not see whether a train was approaching from the east, but having seen the vehicle cross from the south side: - "T then put my foot on the accelerator, thinking it was safe enough as the other car went. I didn't hear any noise or anything. When I started to move, I collided with the train. After that I don't remember anything until I woke up with the ambulance blokes over the top of me": AB36. Mr Kelly said that he had never been instructed to use the overpass rather than the level crossing, and that he had never been given a timetable to indicate when trains were due at the intersection. He did not have an off-sider to assist him, and 20 UNREPORTED JUDGMENTS he said that the cabin of the front end loader was fully enclosed and all he could hear was the loud noise of its motor. He approached the crossing at a very slow speed, which he estimated between 5 to 10 kilometres per hour, and stopped. When he moved from the stopped position he was "just crawling" in first gear and the train, which was in fact travelling towards the crossing from the east, hit the left hand side of the bucket and front portion of the front end loader. In cross-examination Mr Kelly said that he had lived in Narrandera for twenty three years and, as at 25 October 1994, he was residing in May Street. He said that travelling to and returning from the Council depot he would take the route over the Whitton Street level crossing, which indicated as clearly as could be that when he had a choice of route he used the level crossing rather than the overpass, and that but for the accident he would have returned over the crossing to drive to the place where he was to work that day after he had fuelled the front end loader. He confirmed that he stopped near the crossing with the bucket of the front end loader level with the stop sign, and that he decided to proceed because the vehicle travelling in the opposite direction had crossed the railway crossing: AB48 line 35; although he agreed that in a statement he made to the police on 30 December 1994 he said nothing about seeing a vehicle coming across the line in the opposite direction, nor about looking to his left and right. The statement also omitted any suggestion that the sun prevented his seeing the approaching train. He said in that statement, at AB419: - "T crossed over the highway and drove to a railway level crossing which was only about 50 metres away. I stopped at the stop sign before the railway tracks and I was aware that there were cars behind me. I looked around at them and then turned to the front. I put my foot on the accelerator and moved forward to cross the railway lines. I reckon I would only have travelled about five feet when I was hit by a train which came from my left. I did not see the train or hear it until it was just about to hit me." Later in the statement he said: - "At the time of the accident the weather was fine, with the sun rising out to my left the same direction as the train was coming. The road was dry and the crossing had a stop sign on each side of the railway tracks. I have driven over the intersection many times before." Although he made reference to the sun being to his left, he did not suggest that it prevented his seeing along the railway track in that direction. He was cross-examined closely about these omissions, notwithstanding other details in the statement, and he disagreed that he was mistaken in stating that a car came towards him over the railway line. He said he could see about fifty metres along the railway line to his, let but added that he could not tell how far, and he could not remember whether he shielded his eyes to get a better view. The evidence that he could see "about" fifty metres was substantially destructive of his case that the sun prevented his seeing the approaching train at all. He continued: - "Q. Without knowing there was a train coming or not you set off, is that right? A. After looking both ways. Q. Yes, but looking didn't help you to determine whether the train was coming, did it? A. Well, the car that went past, I was taking that it was safe enough to go then, I couldn't see": AB51. UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LBD v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) He agreed he did not even think about whether a traffic was coming, and repeated that he could not see anything "for the sun". In cross-examination it became quite clear that Mr Kelly was completely familiar with the area, essentially for the reasons to which I have referred. At ABS4 he agreed that he did not know at what time a train would "Come and that there was no regular schedule, it depending on whether a train was required and that at any given time there might be a train on the line. The evidence was that the rail passenger service had been suspended and the line was used only for goods trains when they were required. At ABS6 he said that as he approached the level crossing he knew nothing about whether a train was coming, so that it was all the more important to check whether or not that was happening as he had nothing else upon which to rely but his eyes and ears. He said that he always stopped and checked. This, in my opinion, was a most significant piece of evidence. It showed, as clearly as could be, that Mr Kelly realised that he was obliged to stop at the stop sign and satisfy himself that no train was approaching so that it safe to proceed. That was not only because the stop sign obliged him to, but also as a matter of basic common sense for his own safety. At AB60 Mr Kelly said that if the driver had been sounding the train's whistle he would not have been able to hear it, and that if he had heard that sound as the train approached he would not have proceeded. This, of course, made it all the more important that he should be sure, by visual inspection, that a train was not approaching. He agreed he had to give way to whatever was coming on the railway line into the intersection, which was controlled by the stop sign, and that had he tried "and run the stop sign" that would have been wrong. He said he knew trains were difficult to stop. He repeated that he thought it was safe because the vehicle had come in the other direction. The train, which collided with the bucket and/or the from portion of the front end loader, was owned by the second defendant, State Rail Authority of New South Wales, ("SRA"), and was being driven by the third defendant, Mr Leslie Bamford, who was employed by SRA. I shall refer to it and him compendiously as SRA, save in so far as it is necessary to draw a distinction. Mr Bamford was assisted by an observer, Mr Bright. Mr J Poialos of Queen's Counsel and Mr P J Brereton of Counsel appeared on behalf of SRA. A statement of Mr of Bamford was tendered, but he was unable to give oral evidence for medical reasons apparently arising from the accident. The train comprised two locomotives and thirteen empty grain trucks. It was heading to Yanco, which is west of Narrandera, but the intention was that it should stop at Narrandera. It was, at all material times, travelling below the designated speed limit for that area and between 65 and 70 kilometres per hour. At a distance variously estimated at 1,500 and 1,000 or so yards, (ie, about 2,4,00 or 1,600 metres) or, perhaps, 1,500 and 1,000 metres which I think is the more likely distance and which I shall adopt from the level crossing, certain motor vehicles were seen driving over it from north to south, ie, in the same direction as Mr Kelly was proceeding, without stopping as required by the sign, and Mr Bamford sounded the train's whistle. At 65 kilometres per hour it was travelling through about 18 metres per second and at 70, kilometre's per hour it was travelling through about 19.4 metres per second. The only reduction in speed was to keep within that speed limit. Therefore, if the train was travelling at 65 kilometres per hour it would have taken 1 minute 23 seconds to. travel 1,500 metres, and 55 22 UNREPORTED JUDGMENTS seconds to travel 1,000 metres. If it was travelling at 70 kilometres per hour it would have taken | minute 17 seconds to travel 1,500 metres, and 52 seconds to travel 1,000 metres. Whilst these figures are mathematically accurate they do not take allowance for estimates of distance, nor for the variations in speed as the train's emergency brakes were applied. In these circumstances they provide, in my opinion, nothing more than a somewhat rough guide for making ultimate findings of fact. The front end loader was seen by Mr Bright to stop short of the railway line and then to start to move. This caused him to call out an excited warning to Mr Bamford, who continued to sound the whistle and applied the emergency brakes. However, in the time and space available the train, which weighed about 252 tomes, could not be stopped and the collision occurred. The evidence was that the emergency brakes were applied when the front of the train was 124 metres to the east of the crossing and the front of the train stopped 100 metres to the west of it. Accordingly, the last 124 metres was travelled at a decreasing speed, which would extend the times to which I have just referred. However, the evidence was that it was only the bucket or front portion that was struck. Such was the force of the collision that the front end loader I was moved some distance to the east but, more significantly, spun around almost 360 degrees in a clockwise direction, thus throwing Mr Kelly about, initially in the cabin, and then through the rear perspex cover, which gave way, conformably with the way in which it was designed, under the force of being hit by his head or upper body. He was thrown some four metres from the rear of the front end loader and landed on the ground. He suffered abrasions, cuts and some bruising, but of far more serious consequence he suffered a fracture of the LI vertebra with retrograde displacement of bone into the spinal canal, fractures of the spinous process of T8 to T12 and the L2 vertebra, and fractures of the pedicles of the T12 and transverse processes of T12 and LI bilaterally. He was taken almost immediately to Royal North Shore Hospital where he came under the, care of Dr John Yeo and Professor T K F Taylor, the latter of whom operated on him. Dr Yeo has expressed the opinion, as to which there is no issue, that he has sustained paraplegia. Mr Kelly's case was that he sustained the fractures when he landed on the ground after being thrown from the front end loader, that had a lap seat belt been available he would have been wearing it, and that had he been wearing it he would not have suffered the fractures, which rendered him a paraplegic, because it would have restrained him in the cabin, in which event he would not have suffered spinal injuries leading to paraplegia. Accordingly, it was, submitted that the Council's failure to fit a lap seat belt meant that it failed to provide him with a safe system of work. That allegation has to be measured against the evidence of Dr Yeo, AB 140.1, that had he been wearing a lap seat belt he could well have suffered most severe internal injuries in this accident, which could have been fatal, and the evidence of Dr Henderson, who was also called on behalf of Mr Kelly, that internal injuries are a hazard of, lap seat belts, which "can and have been known to be on many occasions fatal": AB196. However, Dr Yeo's evidence must be read in context and Professor Henderson's evidence in this regard was 'heavily qualified in relation to this accident. He considered that in the circumstances Mr Kelly would only have suffered some relatively minor bruising from a lap seat belt. UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LBS v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) Mr Kelly alleged also that there were a number of other ways in which the Council failed to provide a safe system of work, and that, independently, SRA was guilty of negligence in the control of the train and in failing to install and institute a system to operate hinge gates at the level crossing. The Hearing At First Instance The hearing of Mr Kelly's claim, which was limited to liability, took place before Master Malpass from 19 to 23 May and on 26 May 1997 at Wagga Wagga, and the Master delivered his reasons for judgment on 14 August 1997. The 10 Master also heard the action between the workers compensation insurer and the motor vehicle third party insurer of the Council. At the hearing before the Master, Mr Roberts of Counsel appeared for the workers compensation insurer, and Mr P Menzies of Queen's Counsel appeared for the motor vehicle third party insurer. view of the Master's findings in favour of the Council it was 15 unnecessary for him to determine this dispute. At the conclusion of the evidence Mr Hennessy furnished to a written summary of Mr Kelly's allegations. It stated:- "As between the Plaintiff and the First Defendant The Plaintiff alleges that the First Defendant failed to take reasonable care for 20 his safety in that:- 1. It failed to provide the Plaintiff with a seat belt and/or 2. It required the Plaintiff to drive the front end loader on a public road ie the Whitton Street Crossing via an approach on which there was no notice of the crossing 25 - in a ROPS Cabin in which the Plaintiff's ability to hear a train horn was eliminated or reduced; - at a time when the sun was rising in the cast and liable to obstruct the Plaintiff's view to the east at the crossing; - with no dogman or guide or assistant to direct him; 30 - with no seat belt; - with no train time table; - with no warning of the risk of injury in the circumstances that is to say: (i) the risk associated with familiarity (ii) the risk associated with sound elimination or reduction (iii) the risk associated with crossing without a clear view - with no instruction as to what to do in the event of the sun obstructing his view to the east at the crossing and/or 3. It failed to have repaired the fuel tank located at the Council Depot 40 OF direct the Plaintiff to use the railway overpass - thus exposing the Plaintiff to unnecessary risk of injury. As Between the Plaintiff and the Second and Third Defendants The Plaintiff alleges the Second and/or Third Defendants failed to take reasonable care for his safety in that: 45 1. The Third Defendant - travelled at a speed that was excessive in the circumstances - failed to respond or respond adequately to the presence of vehicles at or near the crossing by braking. 2. The Second Defendant 50 - allowed trains to travel at a speed that was excessive in the circumstances 24 UNREPORTED JUDGMENTS - failed to provide means of excluding the public from entry onto the railway crossing by erecting boom gates or hinged gates." As between the defendants there was a dispute as to their liability and, accordingly, their respective obligations to contribute to any judgment to which Mr Kelly may be found entitled. The Master was satisfied that there was no negligence on the part of the Council, but that SRA was negligent, and that Mr Kelly was guilty of contributory negligence, which he assessed at 75 per cent. The Appeals Mr Kelly has appealed against those decisions. SRA has cross-appealed against the finding that it was negligent, and consistently with the position it took before the Master, it has submitted that the Council was guilty of negligence. Mr Kelly has asserted that the Master erred in failing to determine adequately, or at all, his allegation of negligence concerning the "system" case and the failure to repair the fuel tank case at the Council depot; in his determination of the seat belt case, in that he held there was no duty to provide a seat belt and declined to determine whether the seat belt would have prevented, injury to Mr Kelly; in his declining to determine whether Mr Kelly's spinal fractures occurred within the cabin or after ejection from it; in his declining to determine whether the absence of a seat belt was a material cause of Mr Kelly's injuries; and in his refusing to accept the evidence of Dr Henderson and Mr Simpson. Mr Kelly has asserted that the Master was in error:- ".. in finding that if the first respondent had been negligent the appellant's damage was not caused by the first respondent's breach because: (i) such a finding was an application of an erroneous test as to causation and was contrary to the evidence as properly assessed and considered; (ii) it was entirely erroneous in relation to the appellant's 'system' and the failure to repair the fuel tank allegations of negligence; and (iii) generally, the Master erred in refusing to accept the appellant's evidence, the evidence of Mr Sibraa and Senior Constable Lapworth and the Master failed to adequately or at all state his reasons as to the rejection of the witness evidence." Mr Kelly also appeal against the Master's determination in relation to SRA and Mr Bamford asserting that he failed to adequately, or at all, determine his allegations of negligence that SRA failed to provide means of excluding the public from entry onto the railway crossing by erecting boom gates "and in particular the Master's conclusion that in light of his findings that the second and third respondents had been negligent upon the 'excessive speed' allegation of negligence that it was not necessary to consider and determine the 'exclusion to the public' allegation of negligence as against the second respondent". On the appeal the allegation as to boom gates was expressly withdrawn, although the allegation as to hinge gates was pursued. In relation to the "excessive speed" allegation it was contended that the Master's assessment of contributory negligence was "so beyond the range of the sound exercise of discretionary judgment as to be erroneous". Mr Kelly raised other grounds of appeal which, essentially, referred to the same, or very closely associated matters. It was also asserted that the Master erred in failing to make an assessment of Mr Kelly's contributory negligence; in failing to properly, or at all, state his reasons as to the acceptance or otherwise of various witnesses; in determining Mr UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LBS v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) Kelly's claims and allegations of negligence; in apportioning Mr Kelly's contributory negligence, if any, in relation to those claims; and in rejecting the evidence of Mr Kelly, Mr Sibraa, Senior Constable Lapworth, Mr Simpson and Dr Henderson in circumstances where the rejection of the evidence:- "., constituted the palpable misuse of the Master's advantage as a trial judge, constituted findings inconsistent with facts incontrovertibly established by the evidence and constituted findings which were glaringly improbable." The Master's Reasons Mr Ellicott made a substantial attack on the Master's reasons as failing to disclose sufficiently, or at all, the process by which he arrived at a number of conclusions. He submitted that this failure was such as to deprive Mr Kelly of the opportunity of understanding why many findings had been made and, hence, precluded him from making proper submissions. He submitted that in these circumstances the judgment failed as a judgment and denied Mr Kelly natural justice. After setting forth many of the matters to which I have referred, in which the Master included that Mr Kelly had held a licence to drive a front end loader for about twenty years, that on some occasions the refuelling was done at the Council depot, and that since the accident there have been changes to the re-fuelling procedures, he noted that the level crossing was located within the town limits, and that the permissible speed in Whitton Street was 60 kilometres per hour and on the railway track was 100 kilometres per hour. He referred to the train being a wheat train and the grain silos being located "just to the east of the crossing on the southern side of the line". This was a basically irrelevant observation because there was no suggestion the train was to stop at the silos. He found the crossing was about one kilometre from and to the east of Narrandera Station. The train had a weight of about 252 tonnes, comprising two locomotives and thirteen bulk wheat carriages, which were unladen. He said, AB468:- "It was large and easily visible (see photographs). The locomotive was red with two headlights which were on at the time. It was difficult to stop. It was travelling about 68 kph at impact. It was travelling from Junee to Yanco. It was to stop at Narrandera for the purpose of changing staff (a metal staff)." The Master referred to the front end loader and stated that there was no legal requirement for it to be fitted with a seat belt. He found that the right side front of the train struck the left side of the front end loader, and that the train came to a stop about 100 metres past the level crossing after the brakes had been applied 124 metres before the crossing. At AB470 he commenced to consider Mr Kelly's version of the accident, and found that Mr Kelly did not see the train until immediately prior to the impact. He recorded Mr Kelly's evidence that this was because he could not see anything for the sun and proceeded across the level crossing because he assumed it was safe to do so on the basis of having seen the vehicle cross from the other side. He found that he neither heard the train nor its whistle, and referred to the statement Mr Kelly had given to the police on 30 December 1994. The Master noted that the statement contained no reference to his looking to the left or right prior to proceeding across the crossing, nor to the presence of the car coming from the other side of the crossing, nor to his vision being impaired by the sun. The Master repeated Mr Kelly's words:- "T did not see the train or hear it until it was just about to hit me." He continued:- 26 UNREPORTED JUDGMENTS "There are aspects of the plaintiff's evidence which are in conflict with other evidence. There are differences between his oral evidence and the version given to the police. There are aspects of his evidence which I do not regard as being reliable. Accordingly, I do not accept some of his evidence." Subsequently the Master said he did not accept Mr Kelly's evidence that he had looked to the left and right; or that he could not see because of the sun; or that a vehicle had crossed from the southern side of the level crossing. The rejection of this evidence, all of which in my respectful opinion was justified on the whole of the evidence, was, on one view, substantially destructive of Mr Kelly's case against SRA, or, if it did not demolish it, it demonstrated substantial contributory negligence on the part of Mr Kelly. This was particularly so when added to Mr Kelly's evidence that he stopped the front end loader at the crossing, as he always did, to check whether a train was approaching, and was seen to have stopped by those controlling the train, apparently conformably with the sign obliging him to do so. He considered next the evidence of Mr Sibraa, who was employed by the Council and saw the collision from a distance of about fifty metres. Mr Sibraa was driving along the Newell Highway, which ran basically parallel to the railway line in that area, heard the train whistle and looked across. He said the cabin of the front end loader was about two metres from the actual railway line and the end of the bucket was nearly on it, and the train was "probably about five metres away, roughly". Mr Sibraa said the front end loader was moving very slowly and, in cross-examination, that the sun was not a problem when he was driving east along the Newell Highway although, subsequently, he said it was so low it caused some difficulty. The Master referred to certain of Mr Sibraa's evidence, which included his being in no doubt that the brake lights of the front end loader were on "all along", about which he, Mr Sibraa, was positive. The Master analysed that evidence, and various discrepancies in relation to the sun, and noted Mr Sibraa's agreement that if one looked towards the hill to the east one would expect to see a train coming at least a kilometre away. Of more significance was Mr Sibraa's agreement that there were no cars crossing the railway line going in the opposite direction to the front end loader and, in re-examination, he said he could not assist as to whether any vehicles travelled across the line in that direction. The Master concluded that Mr Sibraa was a witness sympathetic to Mr Kelly's case, that there was some confusion reflected in his evidence, and that he felt that certain of his evidence should be viewed with caution. Unless Mr Kelly's evidence was accepted that he could not see to the east because of the position of the sun, but that he none-the-less commenced to cross the level crossing because a car had crossed the track in the opposite direction, (thereby impliedly suggesting that no train was approaching), there was no explanation for his proceeding without assuring himself that no train was approaching. To put it shortly, in the absence of an acceptance of that evidence, notwithstanding that he had stopped, as he said he always did to check, he proceeded to drive onto the level crossing without knowing whether a train was coming. It is difficult to conceive of more negligent conduct. Mr Sibraa said in cross-examination:- "Q. When you approached the intersection of Barellan Street and saw Mr Kelly proceeding from the highway to the railway crossing, were there any cars behind him? A. No. UWHELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LBB v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) Q. There were no cars crossing the railway line going in the opposite direction, were there? A. No." He thus contradicted Mr Kelly in two significant respects, viz that there were no cars behind him at which he said in his statement to the police of 30 December 1994, he looked and, more importantly, no car crossed the level crossing from the south thus giving him the assurance that he said caused him to move onto it. In re-examination Mr Sibraa's evidence was:- "Q. Before Mr Kelly went past that' (the stop sign) "and closer to the railway line, are you able to help us as to whether or not any vehicles travelled across the line going north? A. No. Q. Can you not assist us? A. No." The denials by Mr Sibraa of the relevant northbound vehicle could not have been clearer. The Master considered the evidence of Senior Constable Lapworth, who attended the scene of the accident at about 7.20am. He said that the sun restricted the view. The Master concluded the police officer was not an impressive witness and that aspects of his evidence were unreliable. He referred to one example thus:- "The evidence given as to the effect of the sun was based on his recollection and not on documentation prepared by him following the accident. This evidence was not consistent with what had been recorded in the P4 Form. His evidence on these matters was not convincing. It lacked plausibility." In the P4 form the police officer had noted the weather as "overcast" and the view as "open". In cross-examination, AB153, the police officer said that he did not ask Mr Kelly whether the sun was in his eyes and, at AB154, he agreed that he had noted the view was open, and that he had not put it was "obscured", notwithstanding that his evidence was that the view was "obscured". He sought to explain this by saying that his definition of "obscured and unobscured is a solid object". He agreed the restriction of view caused by the sun was a significant fact and that if his evidence be correct "someone at that railway crossing couldn't see more than a few metres, about five metres to the east". He said he had made no record of that, nor of any problem with the sun. At AB136 the police officer was cross-examined about the nature of the day and he said it was sunny and, when it was put to him that he had noted that the weather was "overcast", he said there were clouds in the sky, and he agreed the number "3" on the P4 form represented "overcast". He continued:- "Q. That is the conditions that prevail at the time you conducted your investigation, is that right? A. That's correct, there were clouds in the sky. Q. If one wanted to check the numbers, you gave the heading in the little box which says 'weather', number one is fine, number two is raining, number three is overcast? A. That's right Q. And you didn't select 'fine', you selected 'overcast'? A. That's right. Q. If one takes the P4 at face value, we know that it was an overcast day, that it was daylight, that there was an unobstructed view, as you have answered my friend Mr Roberts? 28 UNREPORTED JUDGMENTS A. That's correct." The police officer was shown a number of photographs, which had been taken by detectives from the scientific squad, of which the bottom one, at AB381, showed cloud. This is consistent with the absence of any reference to sun and the note that the day was "overcast". When one has regard to the evidence given by the police officer it is easy to see why the Master formed the view that it was neither convincing nor plausible. However, that finding has to be placed in context. It was common ground, as the Master noted subsequently, AB483, "that the sun may have had some effect on visibility". He said the question was the extent of the impairment of the vision, and he continued:- "When regard is had to all the evidence placed before me, I am not satisfied that the sun would have prevented the plaintiff from seeing the approaching train." His rejection of the evidence of the police officer really went to the question whether, as he asserted, a person at the railway crossing could not see more than a few metres to the east. In my respectful opinion the Master has made clear how he reached his conclusion that the sun did not impair, to any significant extent, Mr Kelly's view, and that it was not in a position, which would have prevented his seeing the train approaching if he had looked. These were findings essentially for him on his assessment of the witnesses and, in my opinion, they are not such that the Court should interfere with them: Abalos v Australian Postal Commission (1990) 175 CLR 641, and Devries v Australian National Railways Commission (1993) 177 CLR 472. The Master turned to the evidence of Mr Bright, who was the observer and assistant driver and positioned on the right hand side of the train, ie the side from which the front end loader was approaching. He said that when the train was about one thousand to one thousand five hundred yards from the level crossing Mr Bright saw cars going across it from right to left. The train whistle was being blown continuously up to the crossing and Mr Bright saw the front end loader coming from the right. It came into view as the last car was going across the crossing, ie from right to left or in the same direction as the front end loader was proceeding. The front end loader was travelling slowly and stopped at the crossing at which time the train was close to it. Thus while the impression may have been created that there was a continuous stream of moving cars crossing the level crossing, this was obviously broken by the front end loader stopping. Mr Bright then noticed that the front end loader started again and called out to Mr Bamford to "hit the brakes". Mr Bright said the train was required to observe a maximum speed of sixty five to seventy kilometres per hour, which it was, and that the brakes were applied "off and on" as the train descended the hill to keep within that speed limit, but the speed was not reduced because of the presence of the cars seen at the crossing. Mr Bright's evidence was that notwithstanding that vehicles were seen to be travelling over the crossing in disobedience of signals "it was normal to keep going at the same speed" and to continue blowing the whistle. The Master did not refer to the evidence of Mr Bamford, but I find it convenient to insert his version of the accident at this point, AB339:- "About 1000 metres from the level I started blowing the whistle as I saw at least three vehicles go across the level crossing without stopping. Don then told me to keep hanging on to the whistle as there was another one coming as we got close to the crossing. Don then said that he was going to stop and then he said he stopped, then almost in the same breath he said he was coming again, he told UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LB9 v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) me get hold of them stop stop. At this point I still had hold of the whistle and with the other hand I put the brake valve in the emergency position... Out of my window I could see the bucket of the front end loader appear on my side of the locomotive the brakes were fully applied at this, time as we came into contact with it." Mr Bamford was on the left side of the cabin and Mr Bright, (Don), was on the right hand side. It was in the light of the totality of this evidence that the Master Roland SRA guilty of negligence and Mr Kelly guilty of contributory negligence. I shall return to the case against SRA after I have considered the position in relation to the Council. The Master then turned to a review of the evidence of the use of a seat belt, and noted that there was evidence, which supported the view that a lap belt would have prevented Mr Kelly's ejection from the vehicle and his suffering of spinal injuries, and evidence to the contrary. He also referred to the fact that there was a question as to whether the spinal fractures took place in the cabin or after the ejection of Mr Kelly from it and that the views of the experts were expressed in detailed and lengthy reports, which were supplemented by oral evidence and tested by cross-examination. He said, AB476-477:- "The taking of the expert evidence has occupied some days of hearing time. These issues excited less than full argument. For present purposes, it is not necessary to become embroiled in the detail involved in this evidence. It seems to me that the liability issues in this case can be determined without resolving these seat-belt issues. However, for the assistance of the parties, I will make certain observations. The use of a fitted lap-belt would not have prevented the plaintiff from suffering injury. The question of whether or not it would have prevented him from sustaining his spinal injuries is a complex one on which I am left in some doubt. I should add that, during the taking of the evidence, many questions were agitated. The conduct of the trial was made difficult because of problems encountered in ascertaining the real issues. When the stage for the taking of submissions had been reached, a number of the questions agitated during the evidence had ceased to be live issues." The Master set out the document stating the issues. Whatever the refinement of the issues, a very live one was whether the Council should have fitted a lap seat belt, and an equally important one was what would have been the consequences of its having done so. There is no doubt the Master appreciated this. The Master was of the view that the driving of the front end loader from the Council depot to the Shell depot was part of a function Mr Kelly had performed on a number of occasions, he having had considerable experience in driving such a machine. He found, as was the undoubted fact, that Mr Kelly was familiar with the level crossing and its "signage" and that, prior to the accident, he stopped at the level crossing because of his awareness of the stop sign. Whilst one criticism of the judgment was the failure to make a finding that the necessity to go to the Shell depot constituted an unsafe system of work, I consider that this portion of the judgment was sufficient to deal with that in a manner I find acceptable. In my opinion, the Master was entitled to come to the conclusion that requiring Mr Kelly to drive over the level crossing and, therefore impliedly, not requiring him to drive via the overpass, did not constitute a failure to provide a safe system of work. As I have said this was Mr Kelly's preferred method of travel to and from work when similar difficulties with the sun would have been experienced. Mr 30 UNREPORTED JUDGMENTS Kelly knew that he had to stop and check and this is precisely what he said he did on the relevant occasion. I am of the opinion that the Master's rejection of an unsafe system of work by dint of the requirement to cross the railway line to obtain fuel and to cross the railway line at the level crossing was correct. At AB480 he returned to "the seat-belt issue", having found that there was no legal requirement for one to be fitted. He found the main benefit of the lap only seat belt was to prevent ejection from crashing vehicles, although a disadvantage of such a belt was that it may cause injury, such as in the case of frontal and near frontal collisions. He continued that "lap only belts are less efficient overall because they allow free movement of the upper torso which may then come into contact with the interior of the vehicle" and concluded that the evidence on those matters had been left "in a less than satisfactory state". The Master then directed himself to the duty owed by the Council to Mr Kelly as his employer and, after referring to Mihaljevic v Longyear (Australia) Pty Ltd (1985) 3 NSWLR 1 and Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, he said, AB482:- "When the relevant principles are applied to the facts of this case, I am not satisfied that there has been a breach of duty on the part of the first defendant. If I had formed a different view on this question, I would not have been satisfied that there was the necessary causal link between the damage claimed by the plaintiff and the alleged breach of duty." This passage, which was essentially the stated basis on which the Master rejected the seat belt claim, was attacked heavily by Mr Ellicott as stating conclusions without reasons. Firstly, he submitted that if the Master had found that the failure to provide a seat belt was not a breach of the Council's duty, as he appears to have done, he failed to review the evidence on the point and, perhaps more importantly, he failed to give any reasons for that conclusion. The mere fact that in the circumstances of this accident a seat belt would not have been of any great assistance in preventing some type of injury, does not necessarily mean that the failure to provide one was not a failure to provide a safe vehicle in which to work. The question was whether the failure to provide the seat belt constituted a negligent act or omission on the Council's part. The onus was on Mr Kelly to establish, firstly, that had one been fitted his injuries would have been averted. Further the onus was on him to prove that the failure to fit the seat belt was causative of the injuries he sustained. Those issues required, so it was submitted, a number of findings. They were:- (a) Whether, in all the circumstances, the Council was negligent in not fitting a lap seat belt, which must be considered with the fact that had one been fitted Mr Kelly would have been wearing it. (b) Whether, if a lap seat belt had been worn:- (i) it would have prevented the ejection of Mr Kelly from the cabin; (ii) it would, none-the-less, have caused him to suffer equally serious spinal injuries whilst still in the cabin, or serious, and potentially fatal, internal injuries. (c) Whether, notwithstanding that he was not wearing a lap seat belt, the spinal injuries were suffered whilst he was still in the cabin and before he was ejected and hit the ground. In my respectful opinion before the conclusions to which the Master came were stated each of these issues had to be addressed. UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LBD v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) The Master dealt with various other matters and, at AB483, he said that it had become common ground "that the sun may have had some effect on visibility", the question being the extent of any such impairment. He concluded that a review of all the evidence did not satisfy him that the sun would have prevented Mr Kelly's seeing the approaching train. He further said that he did not accept, his evidence that there was a car, which came from the other side of the crossing, and that he was not satisfied that there were cars behind the front end loader at the time Mr Kelly proceeded across the level crossing. He was also of the view that as Mr Kelly was aware the front end loader was a noisy vehicle, he should have known that whilst in the cabin his ability to hear external noise was significantly impaired. In my opinion it was open to the Master to come to each of these conclusions, although the consequences, having regard to the way in which the accident occurred, may differ from that which the Master attributed to them. The facts as found were:- (a) Mr Kelly was an experienced front end loader driver. (b) Mr Kelly was fully familiar with this particular area. (c) Mr Kelly was aware that he was required to stop the front end loader at the railway crossing. (d) The obvious reason for doing this was to ensure that it was safe to proceed across the railway line. (e) Mr Kelly's evidence was that he was unable, because of the sun, to see the train travelling from east to west. The Master did not accept this evidence. In my opinion it was clearly open to the Master to reject it. It was for him to assess the credibility of Mr Kelly and, in doing so, he was entitled to have regard to his failure to refer to it in his statement of 30 December 1994 and the evidence of the police officer. (f) Even if, contrary to the view I have just expressed, Mr Kelly was blinded by the sun that was not a reason for his proceeding onto the level crossing without knowing whether a train was approaching. Put simply the reason for stopping was to ensure that a train was not approaching. The whole reason for stopping became otiose if, having stopped, steps were not taken to see whether a train was approaching. (g) The sole excuse Mr Kelly could offer for proceeding was that a vehicle passed in the opposite direction. The evidence of Mr Sibraa tended to negate this occurrence and, notwithstanding the valiant attempts to resurrect the position in re-examination, Mr Sibraa declined to say a vehicle came in that direction. (h) On the Master's findings the front end loader was stopped, which was not in dispute, in a position of safety. Mr Kelly could see the train approaching, which was a matter in dispute but as to which I am satisfied the Master could make the finding, and no vehicle passed in the opposite direction, which deceived him as to the absence of a train. In my opinion all these findings were open to the Master. In these circumstances I am satisfied that on the findings of fact made by the Master, Mr Kelly was grossly negligent for his own safety. To the matters to which I have referred might be added that he was within the cabin, which precluded his hearing many outside noises. Accordingly, his ability to see was absolutely essential. 32 UNREPORTED JUDGMENTS None-the-less the Master found negligence on the part of SRA on the basis that the train was being driven at a speed that was too fast in the circumstances. He referred to the decision of the Full Court in Sibley v Kais (1967) 118 CLR 424. That was a case in which two motor vehicles were involved in a collision at an intersection. Both were moving, and had been moving at all material times prior to the collision, and one had disobeyed the traffic rule of failing to give way to the vehicle on the right. The trial Judge found the accident was solely due to the respondent's negligence but, on appeal, it was held that the applicant's responsibility for the occurrence should be assessed at twenty five per cent. Special leave to appeal to the High Court was sought and the decision of the Full Court of the Supreme Court of Western Australia was upheld. At p427 Barwick CJ, McTiernan, Kitto, Taylor and Owen JJ said:- "*The common law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case. Therefore, it is, in our opinion, rightly said that the 'right hand rule is not the be all and end all in relation to questions of civil responsibility'. The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to 'reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected." (My emphasis.) The Master quoted this passage and continued:- "T shall mention some of the circumstances of this case. The level crossing is located within the town limits of Narrandera. Both Messrs Bamford and Bright have an excellent view of the level crossing as it was approached by the train. The train was to stop at Narrandera. The maximum speed for this particular train was in the order of 65-70 kph. It was a speed that was maintained as the train approached the level crossing. It was the practice to maintain this speed despite the fact that it was regarded as normal for vehicles not to obey 'signage' at the crossing. As the train was approaching the crossing, it had been observed to be a bit busy that morning. Three vehicles had been seen to cross the crossing. They crossed without stopping at the Stop sign. The blowing of the train whistle had not led to obedience to the signs. The train continued in its approach at about its maximum speed. The first car had been seen when the train was about one kilometre from the crossing. The gap between the cars involved a few seconds. The front-end loader was seen coming towards the crossing as the last of the three cars was seen going across it. Conversation had between the driver and his assistant suggest that there was an apprehension of potential danger which looked as though it had passed when the loader was seen to stop. No attempt was made to reduce the maintained speed until it was observed that the front end loader was moving forward from its stopped position towards the railway line. The UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LBS v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) emergency brakes were then applied. By then, it was too late to avoid the collision. Because of the speed that had been maintained, the train was unable to stop in time." (My emphasis.) The essential question is whether SRA was negligent qua Mr Kelly. On the Master's findings the only vehicle relevantly at the level crossing was the front end loader, which he found had been seen by those in charge of the train to have stopped conformably with the sign. There was absolutely no reason why those in charge of the train should have foreseen, in the circumstances which existed, that it would not remain stationary until the train had passed. All other traffic had cleared the level crossing. To suggest, in these circumstances, that those in charge of the train should have started to stop the train, apparently on the hypothesis that the front end loader driver, having stopped conformably with the sign, would then drive his front end loader into the path of the train seems to me, with respect to the Master, quite fanciful. Also the Master did not determine the extent to which the train should have been slowed or whether it should have been brought to a speed, which would have allowed it to halt prior to the level crossing in the event of the front end loader moving at any point before the front engine entered the intersection. Unless the obligation of SRA, in the circumstances, was to stop the train short of the crossing to ensure that it would not collide with the front end loader if, contrary to all reasonable expectations, it moved forward, the reason for slowing the train has not been explained in the circumstances which obtained. Even if it were slowed, but not stopped, if the front end loader moved onto the line there would still have been, in all probability, a collision. However, the Master repeated that the train approached the crossing "at a speed that was too fast in the circumstances". He said it was not reasonable to act on the assumption "that the 'signage' would be observed", notwithstanding that the driver had to the observation of Mr Bright, done so. He continued:- "The train should have reduced its speed, on this occasion, in its approach to the level crossing." These sentences raise, in my respectful opinion, various questions. Firstly, one has to determine "the particular circumstances" which obtained at the level crossing. They were that the train was approaching at less than the permitted speed, and that the front end loader driven by Mr Kelly had come to a halt. This was observed by those in charge of the train. At that point I can see no basis upon which it could be suggested that they were not entitled to assume, as the Master found he should have, that the driver of the front end loader would see the train and remain in a stationary position until it had passed. Secondly, the Master found it was not reasonable to act on the assumption that Mr Kelly would observe the stop sign. Those in charge of the train did not have to act on any such assumption. He had stopped in obedience to the sign. There was no reason, if any assumptions were to be drawn, why he would move off before the train passed. It is to be remembered that at AB474 the Master found that the train was "then close to the crossing" ie, at the time Mr Kelly stopped at the crossing. This was consistent with the evidence of Mr Sibraa. He also found, AB475, that Mr Bright kept watching the crossing as the train approached it and Mr Bright impressed him as an honest and reliable witness, whose evidence he accepted and which evidence accorded or was "largely similar" to that in Mr Bamford's statement. If I may say so with respect one could understand the Master's finding if those in charge of the train had seen vehicles disobeying the stop sign and simply proceeded blowing the whistle and collided with one of those vehicles or with a vehicle following them, which showed no indication of stopping. That 34 UNREPORTED JUDGMENTS occurrence may not have exculpated the driver of the motor vehicle from a fair measure of contributory negligence, but it would have provided circumstances very much akin to those in Sibley v Kais. However, it seems to me, with respect, that one is moving beyond the realm of negligence to the realm of absolute liability by saying that when the vehicle, whether it be a train or a motor vehicle, has the right of way and sees another vehicle according it that right of way conformably with a legal sign, the other vehicle is then bound to not accept the situation as it appears, but to make an assumption that the vehicle which has complied with the law will cease, for no apparent or good reason, to do so. The Master, if I may say so with respect, obviously appreciated these points. He found, AB486, that Mr Kelly was bound to comply with the Traffic Regulations, and that he did not suggest that he had not breached them. Those factors would not, of themselves, excuse SRA of negligence. The question to be determined is whether it was negligent. He found that whilst Mr Kelly stopped "at some stage prior to impact" he proceeded onto the crossing when it was unsafe to do so, and that the fact of stopping was indicative of an awareness "of both the 'signage' and the potential danger involved in proceeding across the level crossing". The Master added:- "Tt is conceded that matters (such as the effect of the sun and the crossing of the other vehicle) do not excuse his breach. I have already made findings on these matters. I have not accepted the plaintiff's evidence on any of them. In any event, he should not have proceeded across the crossing if he was unable to see and/or if his ability to hear external noise was significantly impaired. Commonsense would suggest that, if he was faced with such a difficulty, he could have taken other steps (such as, inter alia, shading his eyes, opening a cabin door and/or alighting from the vehicle) and he would have then been in a better position to assess the situation. Whilst the latter matters were not put to the plaintiff in cross-examination, it was accepted that they represented an obvious response in such a situation. He proceeded across the crossing when he should not have done so and the loader was hit by the train. If he did look in the direction of the train, he should have seen it. I am not satisfied that he did look (at least until it was too late to avoid the impact). It may be that there was an application of the brakes before impact. If the brakes were applied, the purpose of such an exercise was not explored in evidence. Clearly, the plaintiff has been guilty of contributory negligence. He did not obey the traffic regulations. He did not keep a proper lookout. He did not take proper care for his own safety. If he had done so, he would not have suffered damage." In my respectful opinion all of these findings are correct, but they lead to the inevitable conclusion that Mr Kelly, for whom one must feel great sympathy because of the serious injuries he sustained, was the sole architect of his own misfortune so far as SRA is concerned. I shall deal with some further submissions later but, in my opinion, the Master was in error in concluding that SRA was guilty of negligence. I would add here that the decision in Sibley v Kais is not entirely apposite, because a train is a very different thing from a motor vehicle. It cannot be stopped in a short distance, even when travelling at the permitted speed, and it cannot be manoeuvred from its tracks. A Consideration Of The Submissions Against The Council To seek to give some structure to these reasons I shall deal firstly with the position of Mr Kelly. At the date of the accident he was aged forty years. He had been employed by the Council for some four years. His employment involved UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LBS v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) driving the front end loader on public streets. He was experienced in driving such vehicles and had held a licence to do so for approximately twenty years. Their driving on public streets involved all the exigencies, which a driver of a vehicle on a public street would reasonably expect to encounter, including proceeding through controlled and uncontrolled intersections, of which the Whitton Street level crossing was but an example of the former. Mr Kelly not only drove across this intersection on his way to and from work, but also between once and three times a week on the front end loader. He was fully aware of the need to stop at it and to check, something he said he did always. In all these circumstances I cannot see that the Council was under any obligation, in providing a safe system of work, to give any instructions to Mr Kelly as to how he should proceed through intersections or level crossings, nor to instruct him to avoid a railway level crossing and to travel the far longer route to use the overpass. The Council, in my opinion, was entitled to assume that in driving on public roads, through intersections and over railway crossings Mr Kelly would ensure that he did so in a safe manner, ie, that he would use the tool with which it provided him in a safe and competent manner commensurate with his experience, age and character. It was submitted that Mr Kelly should not have been required to drive over the Whitton Street intersection when the position of the sun was such that he could not see whether a train was approaching. This submission contains an assumption, which the Master found was not established, namely that the sun had this effect. As I have noted, the Master found that Mr Kelly did not look, and that had he done so he would have seen the approaching train. He found that there was no vehicle approaching from the south which, according to the evidence of Mr Kelly, caused him to think it was safe to proceed. The Master rejected this evidence and his primary findings that the sun did not impede Mr Kelly's view, such that he would have seen the train had he looked, and that he did not look, have not been shown to be wrong. It was submitted that Mr Kelly was not provided with a safe system of work because he was required to cross the level crossing without a dogman or assistant, who would warn of the approach of a train. No evidence was called that a dogman or off-sider should have been provided, and it seems to me unrealistic to suggest that a driver should, in these circumstances, be provided with an additional observer. There was no evidence that the configuration of the front end loader was such that had Mr Kelly looked he would not have been able to see. In other words there was no evidence to suggest that there was any blind spot from the driving cabin which might demand the presence of an observer. Nor was there any evidence that the front end loader provided for an observer. Nextly, it was submitted that because the cabin was closed in and the motor was running in a noisy fashion, Mr Kelly could not have heard the train whistle. This may be so, but it did not acquit him of the obligation to look properly. His case was that he did, but for reasons the Master rejected, that he could not see the train. Once it is accepted, as I think it must be, that Mr Kelly would have seen the train had he looked, this allegation ceases, in my opinion, to have any relevance. Mr Ellicott submitted that by failing to repair the petrol tank at the Barellan Street Depot, and thus requiring Mr Kelly to drive over the railway line to the Shell Depot, there was a failure to provide a safe system of work. I disagree. Mr Kelly was required to drive over level crossings and through intersections. This was but one instance of performing that task. In doing so he had to exercise the type of care to which I have referred. I see no validity in this complaint. 36 UNREPORTED JUDGMENTS It was also submitted that Mr Kelly was not provided with a train time table. There is no force in this submission because it was not in issue that trains did not use the line on a regular basis. The passenger service had been stopped some years earlier and the trains which ran were, essentially, goods trains for the cartage of wheat and other products. Hence they ran on a needs' basis and, for this reason, a time table was non-existent. No doubt for this, amongst other reasons, Mr Kelly considered it was prudent to stop and check before crossing the level crossing, as he said he always did. The primary issue concerning the failure to provide a safe system of work was the non-provision of a lap seat belt on the suspension seat. Mr Kelly's case, on this aspect, was that a lap seat belt should have been fitted in compliance with the Council's obligation to take all reasonable steps to provide him with safe working conditions, and that had it been fitted he would have worn it and hence not have been thrown from the front end loader and suffered the injuries he did. The principal difficulty this submission confronted was the evidence of Dr Yeo, and certain of the evidence of Dr Henderson, that had a lap seat belt been fitted Mr Kelly would, as a matter of probability, have suffered very serious internal injuries, which could have been fatal, by the force of the seat belt restraining him. Their evidence, as I have indicated, was at AB140 and AB196 respectively. I think it appropriate to set out certain of it. At AB140-AB141 Dr Yeo said:- "Q. Doctor, what about other injuries, internal injuries, first as a lap seat belt? A. Oh, well, that of course is very quite common. I mean you can rupture your liver, spleen, kidney and your duodenum. All of those injuries are well documented as part of the hazard of wearing a lap belt. There are hazards to lap belts. Q. Certainly you would not be able to say it is improbable that Mr Kelly would have suffered those types of injuries in this accident? A. Of course not he could well have suffered those injuries. Q. Some of them could have been fatal? A. Yes." (My emphasis.) At AB196 Dr Henderson said:- "Q. Dealing with that last matter, doctor, lap belts, one of the downsides of lap belts were the internal injuries that were often accompanied by their use? A. In frontal crashes, yes. Q. Well, one of the downsides of lap belts was that they could cause injury themselves? A. Yes. Q. Injuries such as rupture of the liver, spleen, kidney and duodenum? A. Yes, all seat belts can do that. Q. They are hazards of lap belts? A. Not specific to lap belts, but they are hazards to lap belts. Q. And such injuries can and have been known to be on many occasions fatal? A. Yes." A fair reading of this evidence is that the answers were all predicated on the initial answer that these matters happened "in frontal crashes". He said in cross-examination. AB211, that he believed any internal injuries, in the forces of this particular crash, would not have been sufficient "to cause more than discomfort or bruising". There was, accordingly, prima facie a conflict between Dr Yeo and Dr Henderson, each of whom is highly qualified, as to the potential dangers of wearing a lap seat belt in the circumstances of this accident. UWHELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LBZ v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) Others, with the appropriate expertise, were satisfied that Mr Kelly would have suffered some injuries from a lap seat belt. Thus, the situation arose that the system propounded by Mr Kelly may have, in the circumstances of this accident, caused him serious injury, or, if not serious injury, some injury. Depending on the finding as to the extent of the injuries, so will depend the answer to the question whether the system for which Mr Kelly contended was not itself a safe system. It is one thing to say that in an accident such as this if Mr Kelly had been wearing a lap seat belt he would have suffered bruising and discomfort rather than paraplegia. It is quite another to say that had he been wearing such a belt he would have suffered very serious, and potentially fatal, injuries rather than the paraplegia. Another evidentiary question was whether, even if he had been wearing a lap seat belt, he would, none-the-less, have been thrown out of the cabin. If that evidence were to be accepted a third possibility would have been presented, viz that even with the lap seat belt he would, by virtue of being thrown from the cabin, have been rendered a paraplegic. I have set forth the questions I consider arose on these various issues. Much criticism was directed at the Master's reasoning on these matters, with, in my opinion, justification. The Master referred to the conflicting evidence on the effectiveness of a lap seat belt at AB476-AB477. He said that it was not necessary to become "embroiled in the detail involved in this evidence", and continued:- "Tt seems to me that the liability issues in this case can be resolved without resolving these seat belt issues. However, for the assistance of the parties I will make certain observations. The use of a fitted lap-belt would not have prevented the plaintiff from suffering injury. The question of whether or not it would have prevented him from sustaining spinal injuries is a complex one on which I am left in some doubt." It is necessary to consider, firstly, what the Master meant by "these seat belt issues". I rather think he was referring to the matters I have mentioned. That follows from his reference to the conflicting evidence about the effectiveness of such a seat belt and what he perceived as the lack of necessity to become "embroiled" in those issues. It is true that the use of a fitted lap belt would not have prevented Mr Kelly suffering some injury. It was not in issue that even with a lap seat belt he would have been thrown around and, in all probability would have suffered some bruising and lacerations and, on the evidence of Dr Henderson, some internal bruising and discomfort. But, if that is all that had happened with a lap seat belt fitted, I do not think the Council would have failed to provide a safe system of work, which must be relative to what occurred. The real questions were those I have suggested and, as I have said, they had to be answered. In answering them the parties were entitled to the Master's reasons for the conclusions to which he came. The first question was whether the Council was negligent by not providing a lap seat belt. If the Council had done so and, none-the-less, Mr Kelly would have suffered the very serious injuries, the answer to that question may well be no, which would be the same answer to the question whether the failure to provide the lap seat belt was causative of the injuries Mr Kelly sustained. Mr Ellicott submitted, correctly in my opinion, that these questions could not be answered unless the Master addressed the specific issues and determined, on the evidence, what would have happened if such a seat belt had been fitted. The final sentence in the last quoted passage acknowledged the difficulties, but did not 38 UNREPORTED JUDGMENTS answer them. I think the Master was saying that he was in some doubt as to whether the lap seat belt would have prevented spinal injuries. However, he does not explain what "some doubt" meant, and, if he was in "some doubt", how he resolved it. The Master was also criticised for prefacing his finding by the words that he was making the observations "for the assistance of the parties". But that does not mean that the "observations" were not part of his judgment, nor that they should not be taken into account when considering his reasoning process. The Master was saying that irrespective of all the questions raised, and to which he referred, the fact was that even if a lap belt had been fitted and worn it would not have prevented injury and, therefore, such a seat belt did not provide a safe system. The difficulty is how, in the light of what I have written, he reached that decision, ie, to determine his reasoning process. He returned to the seat belt issue at AB480-AB482, and referred to the problems caused by seat belts as disclosed by the evidence. He said that the evidence on various of these matters had been left "in a less than satisfactory state". The Master, however, failed to identify the "various matters" or in what way the evidence had been left in that state. Nor did he say, in terms, what the effect of leaving the evidence in such a state had. He recognised very clearly the duty of the employer and cited relevant authority, including the summary of the principles in Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410. The passages to which he referred made clear that the employee must satisfy the Court that if the precaution for which the employee contends had been taken, the injury would probably have been averted or, in other words, that the safety measures would have been effective. In the instant case a finding may have been open that the provision of a lap seat belt would have substituted one unsafe system of work for another, or put more accurately, the danger to which Mr Kelly was exposed would not have been removed by the introduction of the system for which he argued, or would have been replaced by another danger of equivalent severity. In those circumstances the Master could have found that there was no breach of duty. He added that if he had been of the contrary view, which must have meant that if he had been of the view that a seat belt should have been fitted, he was not satisfied that there was the necessary causal connection between the damage claimed and the alleged breach of duty, ie, to failure to fit the lap seat belt. Implicit in this statement was an acceptance of the evidence that the failure to fit a lap seat belt was not the cause of the injuries Mr Kelly sustained, because even if one had been fitted, (and worn), Mr Kelly would still have suffered the injuries which he did, or very serious ones. In Duyvelshaff consideration was given to regulations under the Inspection of Scaffolding Acts of Queensland, one of which required that all ladders should be used in such a manner that the base should be not less than one quarter of its length out from the foot of the building or structure. Another regulation imposed certain duties on the owner of scaffolding and the owner of the building, if it was not practicable to comply with the earlier requirement, to prevent the fall of the workman and, if a person was employed to work in a dangerous position where it was impracticable to erect any scaffolding or gear, the workman should be furnished with a properly fitted safety belt. The employee decided not to use a ladder, which was provided to him in carrying out certain work, but a plank, which the employer did not know was to be used and the use of which the employer did not authorise. The employee fell from the plank, because it was UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LB9 v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) insecure, and sustained injuries. He sued for common law damages for negligence alleging a duty in the employer to provide a working platform conforming with the regulations, and a duty to provide a safety belt with the ladder. The trial Judge found that it would have been normal and reasonably safe for an experienced tradesman to do the work from a ladder standing in the shaft without a safety belt, that the employer had thus provided for a safe system of work, and that the employee sustained injuries because he used another method, which the employer did not require him to use. Menzies J, at p411, noted that the evidence that to work from a ladder would be reasonably safe "was overwhelming". His Honour concluded that one should not hypothesise as to whether the employee would have fallen from the ladder for the question was whether the employer was negligent in not providing a working platform "and the finding that it was not is strongly supported by the evidence that the use of a ladder would have been reasonably safe". Walsh J, with whom McTiernan ACJ agreed, said, at p415, that it had been established that the onus of proof on the question of the causal relationship between a breach of a statutory provision and an injury lay on the plaintiff. His Honour continued:- "The matter of causation may be considered in the present case from two aspects. It may be asked whether the provision of a safety belt, as well as a ladder, would have caused the appellant to decide to use the ladder, rather than to sit on one of the planks. This question is discussed in the reasons for judgment prepared by Mason J. I agree with respect with his Honour's observations on it. I need add only that upon a perusal of the evidence given by the appellant it seems to me that it is almost certain that the appellant would not have used the ladder. The second question is whether if a safety belt had been available, the appellant would have used it in some way to secure himself when he decided to sit astride the plank to do the job. There is nothing in the evidence to show how he could have done this or to suggest that he would have tried to do it. It is clear, in my opinion, that a finding that the appellant would probably have used a belt, if it had been available, in order to secure himself when sitting on the plank would not be warranted by the evidence." The second question his Honour posed, if it had been answered in the affirmative, would have given rise to the further issue as to whether, if the worker had adopted that method of working he would, none-the-less, have been injured. Gibbs J, at p416-p417, said:- "However, if it be assumed that for some reason or other the respondent was required by statute to provide the appellant with a safety belt, and failed to do so, the appellant, as plaintiff, bore the burden of proving that the provision of a safety belt would, more probably than not, have averted the injury. Statements in the earlier authorities such as Vyner v Waldenberg Bros Ltd [1946] KB 50 at p55 and Roberts v Dorman Long & Co Ltd [1953] | MR 942 at p946, that once a workman has proved a breach of statutory duty, and that he has suffered injury which could have resulted from the breach, the onus of proof shifts to the employer of showing that the breach was not the cause of the injury, are not good law. The general principle is clear, that the plaintiff must prove, on the balance of probabilities, that the breach of duty caused or materially contributed to his injury: Bonnington Castings Ltd v Wardlaw [1956] AC 613 at p620; McWilliams v Sir William Arrol & Co [1962] 1 WLR 295; Wigley v British Vinegars Ltd (supra). This means that 'it is for the plaintiff to prove on a balance of probabilities both that the safety measures would have been effective and that the 40 UNREPORTED JUDGMENTS injured person would have made use of them had they been available': Wigley v British Vinegars Ltd (supra), at p325." (My emphasis.) Shortly thereafter his Honour said:- "Nevertheless the burden of proving the causal connection between the breach and the damage remains on the plaintiff." Mason J said, at p419:- "On the issue of causation it was for the plaintiff to satisfy the Court that his injuries were caused by the defendant's omission to provide a safe place or system of work or to perform his statutory duty. To do so he must show that the safety measures would have been effective and that he would have made use of them if they had been available." The Master referred to the passage from the judgment of Mahoney JA in Mihaljevic v Longyear (Australia) Pty Ltd (1985) 3 NSWLR | at p17 to p18, which incorporated the decision in Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25, and the adoption of the principles in that case and in Duyvelshaff by Gibbs CJ in Turner v South Australia (1982) 56 ALJR 833. Gibbs CJ said in Turner:- "When the employer does unreasonably fail to take a precaution against a danger, the plaintiff cannot succeed unless he satisfies the Court that if the precaution had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective and that he would have made use of them if available." In Hamilton v Nuroof Dixon CJ and Kitto J said, at p24:- "But so far as the primary cause affecting the liability of the defendant goes, it seems clear enough that the accident arose out of the method adopted.. and if to adopt that system implied a failure on the part of the employer to exercise reasonable care for the safety of the workman, the defendant's liability must ensue." Subsequently, on the same page, their Honours said:- "Tf no alternative method was at hand of performing the task and at the same time ensuring greater safety, the dangers might be considered an unavoidable incident of the work to be done." Fullagar J, at p33, said:- "It follows that, if there was any other reasonably practicable 'system of working', which could be expected to occur to a reasonable person but involving less danger to the worker, that system ought to have been adopted... In the present case, however, there seems to me to have been an alternative method of handling the buckets, which would have involved very considerably less risk, and which might very readily have suggested itself to those responsible." Duyvelshaff was cited by McHugh J in March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506 at p530, as authority for the proposition that:- "Tf the damage would have occurred notwithstanding the negligent act or omission, the act or omission is not a cause of the damage and there is no legal liability for it." In Commonwealth of Australia v McLean (1997) 41 NSWLR 389 this Court considered causation and, relevantly for present purposes, Handley and Beazley JJA, at p409 of their joint judgment, after referring to Duyvelshaff and Wilsher v Essex Area Health Authority [1988] AC 1074, cited from the judgment of Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408 UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LAD v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) where her Honour recognised that a relevant question was whether the performance of the duty would have averted the harm and, at p422:- "Thus questions of the sufficiency of the precaution to avert harm are inevitably subsumed in the finding that there was a duty: a precaution is not classified as 'reasonable' unless it can be said that its performance would, in the ordinary course of events, avert the risk that called it into existence." The passage to which the Master referred made clear that the employee must satisfy the Court that if the precaution for which he or she contends had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective. It was, therefore, necessary for the Master to resolve the various conflicts of evidence to come to this conclusion. I am sure he did so in his own mind, but he has not disclosed the reasoning process, which led him to that conclusion. It is this asserted failure, which Mr Ellicott has submitted makes it impossible to determine how the Master made his findings and therefore, to attack those findings. The matter can be viewed in another way. Mr Kelly was injured because, on one view, he was thrown from the vehicle. If that occurred in consequence of a negligent act or omission on the part of the Council he is entitled to be compensated. The existence of negligence in those circumstances does not depend on the application of the res ipsa loquitur approach. Therefore, it had to be shown that the Council did something, which it reasonably should not have done, or failed to do something, which it reasonably should have done, which allowed this to happen. Unless that was established there was no negligence and the damages suffered were not compensible. The alleged omission was the failure to fit the lap seat belt. On one view of the evidence the lap seat belt would also have caused injury. It was submitted for Mr Kelly, correctly in my view, that if both solutions would have caused injury one could not set off the damages, which would have been payable in consequence of the injuries he suffered because of the seat belt, against those which he suffered by being thrown from the vehicle. The reason, I think, that this must be correct is that if he was entitled to recover damages by being thrown from the vehicle without a seat belt being fitted, that is because it was negligent not to fit a seat belt. The purpose of the employee establishing another system is to show that the employer could have taken steps which would have removed the risk of injury. Therefore, no damage would have been suffered. But once the risk of injury is shown from the alternative system the employee has not demonstrated the institution of a system, which would have averted the injury or been effective within the terms of the authorities to which T have referred. A Review Of The Master's Decision On The Seat Belt Issue In my respectful opinion the Master failed to justify the conclusions to which he came on the seat belt issue or issues by furnishing his reasons for so concluding. It is fundamental to that administration of justice that the reasoning process must be disclosed. What will amount to a sufficient revelation will depend on each case: Petit v Dunkley [1971] 1 NSWLR 376, Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales [1983] 3 NSWLR 378; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Yates Property Corporation Pty Ltd (in liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156, Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242, Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 and Liberty Investments Pty Ltd v Sakatik Pty Ltd (Court 42 UNREPORTED JUDGMENTS of Appeal - 30 August 1996 - unreported). However allowing for the pressure under which the members of the Court labour to produce reasons, and for a slightly benevolent approach to be taken towards the adequacy and construction of reasons, I do not consider that the Master has, on the seat belt issue or issues, achieved a satisfactory exposition of his reasoning process. As the evidence of Mr Kelly that he would have worn a lap seat belt was not challenged, and as the credit of the experts was not in issue, I consider that this Court is in as good a position as the Master to decide this aspect of the case. Whilst a degree of evidence was called about the existence of forces and pressures within the cabin I think that it amounted to what one readily enough understands from one's own experience. If one is in a vehicle which accelerates rapidly one's body will be thrown backwards. If one is in a vehicle which decelerates or stops quickly, one's body is thrown forwards eg in a full frontal collision. If one is in a vehicle which swerves in a clockwise direction one's body is thrown to the left. There may be a combination of these consequences, so that if one is in a vehicle which is swung violently clockwise and accelerated one will be thrown to the left and backwards. On the facts of this case that seems to me what probably happened, with the consequence that Mr Kelly was ejected through the rear section. A lingering question is whether, at the first moment of the impact Mr Kelly's body was thrown forward, such as to cause a flexion of the back resulting in paraplegia. A Consideration Of The Evidence Against that background I shall now consider the evidence Mr Kelly relied, firstly, upon the report of Mr C G Simpson of 12 March 1996, Exhibit J: AB357, in which he said that while the front end loader was spinning around, Mr Kelly was thrown around in the cabin "and ultimately out through the rear window". When he wrote his report he had not had the opportunity of looking at the front end loader, but he stated that since at least 1986 such vehicles had been fitted with seat belts "as standard equipment", and that prior to then seat belts were optional equipment "although seat belt anchorage points were fitted to the operator's seat...". He described the method of fitting the seat belt and how it operated and, AB360, gave the opinion:- "\, had the Plaintiff been wearing such a belt when the loader was struck by the train, the Plaintiff would most certainly have been restrained to the operator's seat, and hence not flung around the cabin or out through the rear window of the machine." The evidence was that the cost of fitting a lap seat belt was in the order of $80.00. When Mr Simpson's report was tendered objection was taken to various portions, AB123-124, including an objection to his expertise to give evidence on the seat belt having the capacity to restrain the operator "in these circumstances". At AB124 the Master said:- "You have outlined the objected material, we can then proceed to take this evidence and deal with the objections at a later stage." The transcript then records:- "Exhibit J report of Mr Simpson excluding objections tendered, admitted without objection." I can only assume that this means that the passage in Mr Simpson's report as to the restraining capacity of the seat belt was rejected, at least at that stage. UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LAB v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) In his evidence in chief, which was said to be given in relation to a "discrete matter", Mr Simpson was asked, without objection, about what might have occurred within the cabin at the time of the accident, in the course of which he said, AB126 line H, that 'the person restrained to the seat using a lap belt there would be a significant force from the right", and, " There would be force from the front causing the body to flex forward'. He was asked further questions about the forces and:- "Q. Is there any where in that booth, that is to say the ejection from the cab that involved a forward flexion movement? A. Not only forward flexion would occur if the person was wearing a belt and it struck the ground later and with a significant retardation similar to that of a front end collision in this instance that would be minimal if any." I shall assume the question and answer are recorded correctly. No-one suggested the contrary. The evidence is difficult to understand but, doing the best I can with the answer, I think Mr Simpson was saying that forward flexion would only occur if the various matters to which he referred in the answer occurred, but that in this collision forward flexion, "would be minimal if any". That accords with the effect of forces, namely that "significant retardation" would project one forwards. Mr Kelly was projected backwards. He said that if a person was not wearing a seat belt there would be no forward flexion "from an engineer's point of view". He was asked to assume that Mr Kelly was restrained by a seat belt and whether, on that assumption, any flexion forces of significance would have operated, to which he replied "No". This answer is entirely consistent with that which I have just quoted and analysed. He described the method of ejection through the rear window thus:- "It's an upwards and rearward force applied by the seat on the person. With the upper part of the torso unrestrained it becomes an extension force on the body, in other words the back bends backwards rather than forwards." In cross-examination he agreed that the force exerted in the accident was immense. Mr Simpson said, AB130, that if a lap seat belt was being worn the sideways and rotational forces would not be increased, and, at AB131, that as the rotation of the front end loader continued and Mr Kelly's body was starting to lift "the seat belt comes into play", rather than at the initial impact. Once again this is consistent with the absence of forward movement causing flexion. He was asked about the effect of deceleration and said:- "Q. Depending on which way the driver was facing, if he was still in his seat, there may be a substantial forward flexion? A. Yes. Q. And if restrained by a lap seat belt, lap only seat belt, such could be similar to what one sees with centre rear seat passenger injury? A. Yes, or aircraft accidents, things of that nature. Q. Including - if this is not within your area of expertise say so - very substantial and sometimes fatal internal injuries? A. Yes." In my opinion, the fact that Mr Kelly was ejected backwards shows that deceleration played no part in this incident. It was acceleration which projected him backwards and thus the probabilities destroyed the cross-examiner's hypothesis, even if the questions were intended to be relevant to this particular accident. At that point Mr Simpson was stood down and Dr Yeo was called. His reports were admitted as Exhibit K. 44 UNREPORTED JUDGMENTS In his report of 15 February 1996 Dr Yeo dealt specifically with the seat belt issue: AB370, saying:- "Mr Kelly would have avoided the serious spinal injury suffered in this accident if he had been restrained by a lap-sash seat belt. Even if he was wearing only the lap belt, he would not have been projected from the cabin of the vehicle, suffering the L1 fracture dislocation on impact with the ground. With head-on impacts passengers or drivers wearing only lap belts are prone to flexion injuries of the thoraco-lumbar spine, sometimes with spinal cord injuries. Mr Kelly's accident involved a rotation injury to the front end of the loader and this violent impact projected him through the back window. He would, therefore, most probably not have suffered any serious injury to the thoraco-lumbar spine, even wearing a lap belt restraining him to his seat at the time of impact." (My emphasis.) In his evidence in chief Dr Yeo stated his extensive experience in investigating motor vehicle accidents and elaborated on his view that had Mr Kelly been wearing a lap sash seat belt he would have avoided serious spinal injuries. He said:- "Mr Kelly's history and the medical evidence available to me with the x-rays that we ultimately were able to identify and examine clearly convinced me that Mr Kelly had suffered a serious flexion and rotation injury to the lower thoracic spine, not just one level but a number of levels. This was not just a single level injury This injury could only occur in a direct impact to the back with forces of flexion and rotation. There is no other way that the pathology would have been achieved in any other way. So one then had to listen carefully to the history and observe the records to decide that Mr Kelly in my opinion did not suffer this injury within the cabin of the vehicle. He suffered some head injury mainly in the form of scalp injury. There was not a cerebral brain damage here, and it seems perfectly clear to me if one applies the simple formula of force being equal to mass times velocity squared that forces that work here of an engine and carriages on an almost stationary vehicle in which Mr Kelly was also almost stationary sitting unrestrained, it was inevitable with that rotation force that was applied to this vehicle that he would be, as it were, immediately precipitated in the reverse direction. There is no way that he could not be thrown from the cabin if he was not restrained. If there was a way or exit from the cab obviously the walls of the cab didn't give way. He hit his head on the side window, the left window, as his body was hurled through the back window which is built, of course, to give way for safety, and in doing so was precipitated a distance which he fell heavily on to his side or back and I have no way of determining the exact direction of fall, except that the x-rays again clearly indicate that the ultimate force of his body was one half of his body was severely flexed and rotated on the other half and there can be no doubt about that medically. There is no doubt in my mind of how it actually happened if one accepts the record as being accurate." (My emphasis.) Dr Yeo said that in his opinion Mr Kelly would probably have been in a very horizontal position, travelling at great speed and landing heavily on the ground, that he could not quantify the formula of the force applied to one half of the body, but that from his experience of having studied "hundreds of cases of injuries" the force to the other half was "sufficient to produce this injury simply because he left the cabin at great speed and ultimately crashed on the ground". UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LAS v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) He disagreed that had Mr Kelly been restrained he may experience a flexion movement, and he said this was '"'an unusual accident" because there were so many fractures. However, he drew a distinction, as I understand it, between the fracture at L1 which he said was the worst; and at other positions of the spinal cord, which he said could only have occurred with Mr Kelly landing heavily on the ground. In cross-examination Dr Yeo agreed that there would always be some flexion to the injury, but he dismissed the possibility that paraplegia occurred in the cabin and confirmed that the cord damage at L1-2 must have occurred when Mr Kelly hit the ground. He also dismissed the possibility that if Mr Kelly had been wearing a lap seat belt he may well have suffered injury causing paraplegia. However, he added:- "T would suggest to the Court that it would be reasonable to suggest that there would be some injury, it might even be a fracture. What I am indicating in my evidence, I trust, is that it is the levels of injury crossing both the thoracic and lumbar spines that make one believe that the probabilities are that he was injured and became paraplegic because of the impact outside the vehicle." The burden of Dr Yeo's evidence on this point is quite clear. He dismissed in terms the suggestion in the question; but he thought it reasonable "to suggest" there may have been a fracture, but, having accepted the reasonableness of that, he denied in emphatic terms that that is what happened in this case because of the extent of the injuries. In further cross-examination: AB140, Dr Yeo was asked to assume the wearing of a seat belt and the restraint of the pelvis and, on those assumptions, whether it would be possible that with the forces involved, such action would have led to paraplegia. He said it was possible, but not probable, and he agreed that in motor vehicle accidents the lap seat belt worn by the middle rear passenger is most likely to give rise to paraplegia, with head-on collisions giving rise to flexion, and:- "Q. But with side-on collisions, it is certainly not unheard of? A. I cannot recall a case of a patient wearing a lap belt sitting in the centre of the back seat where flexion was not an element in the production of spinal cord injury and paraplegia." When this passage of evidence is read in the context of what Dr Yeo was being asked it is clear that he was saying that whilst front on collisions give rise to flexion, side on collisions do not. This is confirmed by the next piece of evidence. Q. Well, you know sufficient enough about the mechanics of this action that led to an eight and a half tonne vehicle thrown metres, do you deny the possibility that there would have been flexion as well as rotation had he been restrained by a lap seat belt? A. I would use the word the probabilities are that he would not have suffered a flexion injury." Dr Yeo was then cross-examined about internal injuries and I have referred to this evidence. He was cross-examined by Mr Poulos, with whom he agreed that the thoracic spine is a very stable part of the spine compared to the lumbar spine, so that if the fractures to the thoracic vertebrae would be more likely than not to have been caused by a direct blow, rather than by some flexion force of an indirect nature. He also expressed the view that the absence of facial injuries and the existence of a cut on the back of the head supported his opinion that the spine went into extension, "so a facial injury is going to, point to extension injury, not a flexion 46 UNREPORTED JUDGMENTS injury". That, of course, is consistent with the fact that no lap seat belt was being worn. It leaves open the question as to what would have happened if one had been worn. Dr Yeo was next cross-examined by Mr Menzies, and, at AB 144, he said he disagreed with Dr Henderson's report, which he respected, in one area, namely that Dr Henderson may suggest that the injury could have occurred as Mr Kelly was going through the back window. Dr Yeo continued:- "My interpretation of Mr Kelly's injuries, again from what I have given to the Court, is that he wouldn't have purely developed that type of injury from a flexion injury as such without a direct impact fracture, and there was no way that that window, built to give way in safety situations was going to cause this type of injury, no way. I would challenge any engineer or whoever to tell me that that window which is purely meant to be punched out easily in the case of a turn over or an accident that it would cause the six level fractures that this man has got. So I have assumed without flexion and having in mind the forces that you describe that the ultimate result was that this man left that cabin almost horizontal because of the forces involved that were now transmitted to him and that he therefore went out horizontal out the back window. Q. If one accepts my description of the physics to you would that not leave open as a real probability that there were forces occurring on his spine before he left the seat of a sufficient intensity to cause the injuries that he suffered? A. No." Any difference of opinion between Dr Yeo and Professor Henderson was relatively insignificant because, on Dr Yeo's interpretation, each concluded that the injury occurred after Mr Kelly was ejected from the seat and that if he had been wearing a lap seat belt he would not have been. It is now convenient to return to the evidence of Mr Simpson, which re-commenced at AB 169. He said that he had had the opportunity of inspecting the front end loader and, it was noted, that Mr Roberts withdrew his objection, but that Mr Menzies maintained his on the basis that Mr Simpson was not qualified. The Master asked whether that could be resolved quickly by additional evidence. Mr Simpson was taken to the passage in which he had given the opinion that had Mr Kelly been wearing a seat belt he would have been restrained, and he was asked a number of questions as to his experience in relation to that and other matters, and, at AB176, the Master said, after objection was taken to a question, which followed a question that in the opinion of Mr Simpson the Council ought to have installed seat belts:- "Mr Hennessy, I think you can rest content on what is in the report." It is not clear whether Mr Menzies ever withdrew his objection. However, there was no ground of appeal based upon an allegation that the Master improperly admitted the evidence, if that is what he did. Mr Simpson was not further cross-examined by Mr Menzies, and I can only assume that in the end, having regard to the additional evidence he gave about his qualifications, there was no objection to the passage in his report about the effect of a restraining seat belt. The next witness called on behalf of Mr Kelly was Dr Henderson, who is a medical practitioner practising as a safety consultant and has had most extensive experience in relation to the fitting, operation and functioning of seat belts. Dr Henderson's report became Exhibit O and was admitted without objection. He dealt with a number of matters and, at AB389, he expressed the following opinion:- "Similarly, I consider that the injuries he sustained to his spine occurred UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LAD v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) during or as a result of ejection. Spinal injuries can occur as a result of direct impact to the region, through forces transmitted as a result of impact against other parts of the body, or through inertial forces when parts of the body are restrained and other parts can move freely. J do not consider that the forces on his spine during impact or while he was still within the cabin were sufficient to cause his reported injuries. (I discuss the reports of other experts in the following sections of this report.) Impact with some part of a vehicle during impact could have caused the spinal injuries, but the most probable cause of injuries was impact against the ground after being thrown up to five or six metres. The loads on his spine resulting from such an impact would easily have been sufficient to cause the reported injuries. Taking into account the combination of fractures and the rupture of the posterior longitudinal ligament, the pattern of injury is typical of severe flexion (forwards bending) of the spine in the region where the thoracic spine becomes the lumbar spine. In regard to the comparatively minor grazes and haematoma in his left thigh, I consider that these could have occurred at any time during the sequence of events in the collision." (My emphasis.) The reference to forward flexion was obviously a reference to the position in which Mr Kelly was when he hit the ground. Dr Henderson went on to comment on whether wearing a seat belt would have prevented the injuries to Mr Kelly, which he said would depend among other factors on the kind of seat belt and how it was fitted. He directed his attention to a lap only seat belt mounted on the base of the seat which, in turn, was mounted on a suspension system. He expressed the view that lap seat belts were, less efficient overall because they allowed free movement of the upper torso. Dr Henderson identified the main question as being at what stage in the crash sequence the injury occurred, and he concluded that any seat belt would not have prevented all head injury. He said that he considered that "it is highly unlikely that he sustained these injuries" (the spinal injuries) "while still in the seat", for various reasons. His first was that the pattern of fractures suggested two possible mechanisms, being injury from a severe flexion injury through loading from other parts of the spinal column, or injury from direct impact. He considered that if the flexion injury occurred as a result of loading other parts of the spine remote from the fracture, this could not have occurred within the cabin, because its interior shape remained essentially intact, and because there was insufficient space in it to allow the kind of lateral flexion, which could conceivably have resulted in such fractures. This immediately distinguished the position of a centre rear seat passenger in a motor vehicle, who, with bucket type front seats, would not have the benefit of any frontal obstruction to stop full flexion. He was also of the view that direct impact against the spine while Mr Kelly was still within the confines of the seat "was also exceedingly unlikely to cause this pattern of fractures", and he concluded that the fractures to Mr Kelly's spine occurred during ejection from the vehicle or when he landed on the ground. This coincided with Dr Yeo's opinion. He then posed the questions whether a seat belt would have prevented this ejection, and whether a seat belt could have resulted in the same or similar injury to the spine. He said:- "T have no doubt that a properly worn and properly adjusted seat belt, whether of lap-only or lap/sash configuration, would have prevented the plaintiff's ejection." 48 UNREPORTED JUDGMENTS He gave his reasons for coming to this conclusion, and then turned to "seat-belt induced injury". He conceded that lap seat belts could induce flexion injuries to the thoracic and lumbar regions of the spine, and noted that he had investigated many such crashes. He continued that those injuries occurred in violent frontal or near-frontal crashes, not side impacts, and that there was nothing in the crash to suggest that anything remotely similar to that type of mechanism occurred and that there were no significant frontal forces. He said that Mr Kelly sustained no injuries to the face or other frontal regions, and concluded:- "\, that a seat belt would not - indeed, could not - have inflicted spinal injuries on the plaintiff of the nature which he sustained in this accident." Dr Henderson considered certain other reports and, in relation to that of Mr Simpson, he agreed that a seat belt would have prevented ejection. In relation to Dr Yeo he said:- "Dr Yeo's opinion is that the plaintiff sustained his injury on impact with the ground. Dr Yeo offers no in-depth analysis of his conclusion, but I agree with him that this is the most likely scenario. From his report, it appears that Dr Yeo may have misunderstood some of the accounts of how far the plaintiff was thrown on ejection. Dr Yeo also briefly refers to the general mechanism of lap-belt injuries, which I have discussed above." Dr Henderson considered the report of Dr Bodel, who concluded that a seat belt "probably would have made very little difference in this case". He continued:- "He correctly states that fractures or fracture/dislocations near the thoraco-lumbar junction usually involve acute flexion of the spine, with or without rotation. He is also correct in stating that if the flexion is very severe the posterior elements are usually disrupted. He writes: "This leads to the unstable situation which has occurred in this instance and the associated likelihood of paraplegia'." He considered other portions of Dr Bodel's report and that portion in which Dr Bodel said:- "Tf this patient had been wearing a lap seat belt as is the type that I understand is usually present when fitted to this type of machine, the patient may well suffer the same acute forceful flexion and rotation at the thoraco-lumbar junction." Dr Henderson said he disagreed with Dr Bodel because, in his, Dr Henderson's, opinion there were no forces on the front end loader or the occupant:- "., that could possibly have caused severe flexion of the spine of the kind he describes, and that would be necessary to cause a flexion fracture (with or without rotation) of the spinal column." Dr Henderson said that it followed that he disagreed with Bodel in so far as he said that it was "quite likely that the patient would have suffered serious spinal trauma whether he was wearing a seat belt or not because of the forces involved", and Dr Henderson noted that Dr Bodel, in his summary, reduced the words "quite likely" to "possible". Dr Henderson nextly considered the report of Mr G R D Moir of Geoff Moir & Associates Pty Ltd. Put shortly, but think sufficiently for the moment, Dr Henderson disagreed with the views expressed by Mr Moir. Dr Henderson concluded that Mr Kelly sustained head contact with the glass window of the cabin in the initial stages of the crash, which resulted in minor concussion, which would not have been prevented by wearing a seat belt. He was of the view that the forces on Mr Kelly during the collision, before he began to UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LAB v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) be ejected, were not of a nature as to cause several fractures in the spinal column, which were caused by forces imposed either during ejection from the vehicle or at impact with the ground. In his opinion a lap seat belt would have prevented that ejection "and thus the spinal fractures and permanent disabilities". In his evidence in chief, AB194, Dr Henderson was asked to "elaborate on the main benefit from the lap only seat belt in preventing ejection from crashing vehicles". In the course of giving a lengthy answer he said there was controversy about the protection provided by a lap belt in cars and, in relation to this accident:- "Looking at the entire picture, and putting the findings down to one line, the major benefit of lap belts is in preventing ejection because they do not prevent the occupant's upper part of the body being swung around the car. It therefore exposes the head to injury and head and chest injuries are the commonest causes of death and incapacity." He continued:- "Q. And then as to injury that is liable to follow in the use of the mere lap seat belt, the paraplegia and the flexion injury that occurred here, is that liable to occur in the event of the person in fact being restrained within the lap belt and having enormous flexion? A. Yes indeed. Q. In theory? A. It is. I made a special study of this injury. Q. Can you tell us whether in your view such a movement was liable to be experienced by this man had he in fact been constrained by a lap belt in this machine? A. No, his movements would have been quite different." He was asked to explain that, which he did at some length and consistently with his written report. Dr Henderson was asked about the possibility of internal injuries and he said, AB196:- "Tn a classic lap belt injury which results in this kind of fracture, it is invariably associated with very deep bruising of the abdominal wall, almost certainly some rupturing and always some bruising of the internal organs, sometimes bruising to the muscles in the region of the spine." He then gave evidence to Mr Roberts about the nature of the internal injuries, which I have quoted. In cross-examination Mr Roberts asked Dr Henderson whether, if Mr Kelly had been restrained by a lap seat belt around the pelvis, it was likely that the force on his thoracic spine could have been such as to cause a fracture of it, but not the fracture, which occurred in this case, to which Dr Henderson said that the risk of a spinal fracture was "vanishingly small": AB201. Dr Henderson also rejected the concept that one could reconstruct "in effect" how Mr Kelly landed from eye witness evidence, and he said that a witness "would not have seen the flexion that caused the injury". Dr Henderson gave fairly compelling evidence about the inability to determine precisely how a person could have fallen in the particular circumstances of this case. An example of this is at AB206 lines K to O. Dr Henderson expressed the view that had Mr Kelly been wearing a seat belt he would have suffered minor concussion and he may have suffered some minor bruising on his upper torso and his arm and he expressed the belief that any injuries would have been minor and certainly not incapacitating. He was asked whether that took into account possible internal injuries, which he said it did, and 50 UNREPORTED JUDGMENTS he continued that he did not believe any internal injuries, in the circumstances of this crash, would have been sufficient to cause more than discomfort or bruising. The Council called Mr G R D Moir, a consulting engineer, whose report became Exhibit 4: AB424. Mr Moir said he had undertaken an investigation of the accident and the likely usefulness of a seat belt. He reviewed a number of reports and documents and made a series of assumptions. In Pt3 of the report he dealt with the "impact dynamics" and, in para4, with the seat belt function and design. In para4.2 he said the lap type seat belt was the only class of restraining device feasible in the cabin of this front end loader and that it was:- "., much less effective as a safety restraint than a lap sash seat belt and afforded a much lower standard of protection for the wearer, and was not designed as an ELR device." He said the principal purpose of the seat belt was to prevent forward ejection under a front-on impact and that it "could not prevent sideways 'second impact'". In para4.8 he said that no lap type seat belt system could provide safe restraint in the subject cabin under a heavy side impulse from a locomotive for various reasons to which he referred, in which he included that severe bending of the torso about the seat framing structure could not be prevented, and that ejection from the seat could not be prevented during heavy rearward acceleration of the driver's body "especially if associated with rotational acceleration of the loader" (my emphasis). He considered the kinetics of the unrestrained driver, with which he dealt in detail and, in Pt6, with the seat belt function and its likely action in the impact. In this regard he noted that the seat was of a floating suspension type, such that its movement could not be prevented in an impact "and the effectiveness of restraint was ineffective in very severe side-on and rear impacts". He said that belt restraint would have caused the driver's head and face to strike the steering wheel ".. or worse, the steering wheel hub, in a severe front-on impact with the probability of serious head injury..". However, there were no such injuries and their absence was indicative of little forward movement. He continued, in para6.3, that in the subject impact the response of Mr Kelly's body would have been as noted in paraS.4(a) to para5.4(k) with certain exceptions, which he specified. I think this should have been a reference to paraS.3(a) to para5.3(k). In para6.4 he said:- "Tt was my opinion that use of a lap strap seat belt would not have prevented the severe impact(s) to the plaintiffs head; it would not have reduced any of the forces or bending moments acting on the driver's back; it would have led to a (sic) increase in the bending moment shear and deflection and an increase in the potential injury severity; the seat belt would not have prevented ramping or ejection under the mechanics and dynamics of this impact." He was of the opinion that there was a problem in providing a belt that actually worked within this type of cabin without creating an even greater potential danger to the driver, and, in his opinion, there was no seat belt "currently available for plant cabs", which would have prevented Mr Kelly's injuries in this accident, because of the nature and intensity of the impact. He also expressed the view that Mr Kelly's serious injuries were not sustained as a result of his ejection from the cab: para7.3 AB433 and, in para7.5 he said:- "Tam in no doubt whatsoever that a seat belt offered no useful protection in this impact. Had a seat belt been used it would, in my opinion, have increased the seriousness of the deceleration and force effects suffered by the driver." (Mr Moir's emphasis.) UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LBD v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) In paral0.3, AB437, he said:- "No lap-type seat belt would have given protection to the driver in this impact. The seat belt was powerless to prevent ejection from the seat or from the cab. It would not have reduced the severity of the inevitable initial head impact, and would have resulted in even greater decelerations, forces, moments and deflections on the plaintiffs back than suffered without the seat belt." In his evidence in chief Mr Moir said that he was present when Dr Yeo gave evidence and he was asked:- "Q. Having heard the evidence that you have heard when considering some other matters I take it it is your position that you do not seek to further advance or argue or suggest that the injuries sustained by Mr Kelly were as a result of anything other than a forced flexion injury? A. That's correct." He said, AB256, that the seat belt would have been no help in preventing rear ward ejection. He considered that the lap seat belt would not, having regard to the particular design of the seat, help much in preventing backward extension and removal from the cabin. He repeated, AB257, that such a seat belt would have been of no use whatsoever in restraining Mr Kelly within the seat and preventing a backward removal and:- "Q. And you indeed take the view, don't you, that this man sustained his paraplegia upon the train impacting with the left side of the cab, don't you, didn't you before this case commenced? A. I took the view that there were very high forces acting on that man during the initial stages of the impact. Q. Did you not take the view that this man's injury was sustained consequent upon the initial impact on the left side by the train? A. Yes. Q. Having heard the evidence over the last couple of days you have come to learn that that suggestion is really nonsense, isn't it? A. L accept the view that his particular injury was caused by flexion." This can only mean that Mr Moir no longer maintained the view that the initial impact caused the injuries, and that he accepted that there was flexion when Mr Kelly struck the ground. Mr Moir expressed his disagreement with the views of Dr Henderson. His theory was that the force was such as to bend portion of the seat such a distance as to enable Mr Kelly to be freed from the lap belt, which he explained by saying:- "., because what you are looking at there is the plastic deformation, there was also elastic deformation and tilting of the whole seat and seat base about its suspension": AB263. He said he believed it would have bent back further than appeared from the photograph he was being shown, but returned "to just the bent position shown here", which he agreed all depended upon the amount of force it experienced. He was cross-examined as to when the damage occurred and he said that it could have been done "early in the piece, could have been done later on or it could have been done, and I doubt this, just before ejection took place". At AB267 Mr Moir said that in his opinion Mr Kelly was ejected from the cabin at the moment or at about the instant that the loader came finally to rest. After being cross-examined and conceding, I think reasonably enough, that there was great difficulty in explaining precisely what would have happened in the cabin if a lap type seat belt had been fitted, Mr Moir said that he believed it 52 UNREPORTED JUDGMENTS was possible that there had been a throwing around in the cabin, such as to cause paraplegia by virtue of a forward flexion: AB271 and:- "Q. Assuming what you say is right, what I am interested in is what injury that he apparently sustained to his - in the contact that reversed, then reversed him out the back, can you point to any injury, and by that I mean you would have expected, wouldn't you, as a layman something apparent, a bruise, for example? A. Yes, but from the literature studies ve undertaken, it is possible for, for instance, the chance fracture to occur without any visible signs at all." This caused some difficulty in his evidence because part of his theory was that whilst being thrown around in an unrestrained manner there was contact with something that caused Mr Kelly's movement to be backwards. The report of Dr Bodel, who is an orthopaedic surgeon and who was not required for cross-examination, was tendered. He had read various medical reports and been provided with photocopies of photographs of the damaged front end loader. He stated there were significant forces involved and, at p2, he said:- "You have indicated that the claim against your client insurer hinges on the fact that the patient was not wearing a seat belt and that in fact his employer was negligent for not having one fitted to the machine that he was operating. You will appreciate that it is difficult to be absolutely certain as to whether a seat belt would have made any difference or not but there is in my view good theoretical evidence that it probably would have made very little difference in this case because of the following reasons." The difficulties under which Dr Bodel was operating are made clear in the fifth, sixth and seventh paragraphs of his report: AB460. After stating them he continued:- "Tf this patient had been wearing a lap seat belt as is the type that I understand is usually present when fitted to this type of machine, the patient may well suffer the same acute forceful flexion and rotation at the thoraco-lumbar junction. This type of fracture dislocation frequently is seen in motor vehicle accidents of significant force in a passenger sitting in the middle of the rear seat of a motor vehicle when they are wearing a simple lap seat belt. This type of injury is much less common at other positions in a motor vehicle where the shoulders are at least partly restrained by the sash part of the seat belt. The injury can occur however if the patient's body moves forward and the retractable seat belt does not lock. The injury however is much more likely in the middle of the rear seat because the person sitting in that position can flex further forward into the gap that is usually present between the two seats in the front of the vehicle further than in the case when sitting either side of that position as the person usually hits the back of the seat in front of them. It would appear therefore from the degree of damage done to this very solid machine, that the patient would have sustained a very severe force with an acute flexion and rotation injury at the thoraco-lumbar junction if he had been wearing a lap seat belt. It is therefore quite likely that the patient would have suffered serious spinal trauma whether he was wearing a seat belt or not because of the force involved." In the penultimate paragraph of his report Dr Bodel said:- "In summary therefore it is possible that this patient may have suffered the same or similar type of injury had he been wearing a seat belt or not because it is likely that the forces applied to the thoraco-lumbar junction would have been similar because of the severe overall force which caused this accident. Jn an UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LBS v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) accident of lesser force it is likely that the patient would have survived better with his seat belt than without." (My emphasis.) As there was no cross-examination of Dr Bodel his concept of an accident "of lesser force" was not explored. Suffice to say he conceded that in an accident of this type and the presence of a seat belt could well have assisted Mr Kelly. The Submissions On Behalf Of Mr Kelly And The Council It was submitted by Mr Ellicott that there could be no issue but that a seat belt should have been fitted, the real question being one of causation, namely whether, if it had been fitted, it would have prevented Mr Kelly's spinal injuries, which resulted paraplegia. He submitted the causation issue had two aspects:- "(a) Whether Mr Kelly's spinal injuries resulting in paraplegia were the result of the impact of the collision or the result of a flexion type injury, which resulted from forces and movement caused by that impact; and (b) Whether the same injuries would have resulted if a seat belt had been worn, which involved consideration of whether the injuries occurred within the cabin or upon landing after ejection from it". Mr Ellicott stressed that Mr Moir had expressed the opinion, prior to hearing the evidence of experts called for Mr Kelly, that spinal injuries were caused by the initial impact, but that he withdrew from that position and "accepted the view" that the spinal injuries were caused by a "flexion type injury": AB257, to which I have referred. It was submitted that the consequence of this was that all the experts agreed that the spinal injuries were caused by a flexion type injury, such that it could not have occurred upon collision, but when Mr Kelly struck the ground. The next submission was that there was no issue that Mr Kelly had been ejected from the cabin and both Dr Henderson and Mr Simpson gave evidence that a seat belt would have restrained him. I add that Dr Yeo also gave this evidence. The submission turned to that part of the Master's reasons, at AB4761, where he dealt with the evidence and noted Mr Moir's view that a lap belt "would have been powerless to prevent ejection from the cabin of the vehicle". The submission continued that on the evidence "there was no issue that a seat belt would have restrained the appellant from being ejected from the cabin". I do not, with respect, agree with this assessment of the evidence. Mr Moir maintained his position. He did so, notwithstanding the concession in relation to the flexion type injury. However, that evidence had to be weighed against not only the evidence of Dr Henderson, Dr Yeo and Mr Simpson, but also the medical evidence of Dr Yeo as to the way in which fractures of the type suffered by Mr Kelly would, in all probability, have been sustained, and the limited concession made by Dr Bodel. In the result the Master was faced with determining critical issues by, on the one hand, the evidence of Dr Henderson, Dr Yeo and Mr Simpson, with some support from Dr Bodel, and, on the other, the evidence of Mr Moir and Dr Bodel. The Council submitted that in so far as the Master referred to "these seat-belt issues" he was having regard to the matters set forth at AB476N to 477D, namely:- "(a) Whether a seat belt would have prevented Mr Kelly's suffering his head injury; (b) Whether a seat belt would have prevented Mr Kelly's ejection from the front end loader and the suffering of his final injuries; 54 UNREPORTED JUDGMENTS (c) Whether a seat belt would have been powerless to prevent ejection from the cabin of the vehicle; and (d) Whether the spinal fractures Mr Kelly suffered took place in the cabin or after ejection from it." The submission was that the Master approached the matter on the basis that there was a "seat belt issue", with which he dealt at AB480M to 481B. The passage quoted, however, hardly indicates that the Master was only considering one issue. He said there were "other matters relevant to it", which were referred to in the expert evidence, which evidence threw up "a variety of considerations". After referring to various thoughts about seat belts he said:- "The case was conducted on the basis that a lap-belt was the seat-belt that should have been fitted to this vehicle." He, therefore, directed his attention to the primary question and suggested that the main benefit of such a belt was to prevent ejection from crashing vehicles. He noted that one of the disadvantages of such a belt is that it "may cause injury", which could be fatal, and that "lap only belts" are less efficient because they permit the movement of the upper torso, which may then come into contact with the interior of the vehicle, and concluded this passage:- "The evidence on various of these matters has been left in a less than satisfactory state." As I have noted the Master did not say in what respects he regarded the evidence had been left in that way. I do not consider it was. The submission continued that the Master was, in this passage, dealing with the "substantive allegation" that no seat belt was provided. There were, of course, two questions, namely whether the failure to provide a seat belt was a failure on the part of the Council to provide a safe system of work; and whether, if it was, the absence of a seat belt, in the light of the uncontradicted evidence that it would have been worn if it had been available, was causative of the injuries Mr Kelly sustained. A Consideration Of The Master's Findings On the first issue the Master found that there was no breach, which must have meant that he found that the failure to provide a seat belt did not constitute the failure to provide a safe system of work. The evidence in favour of the fitting of a seat belt was powerful. Firstly, the construction within the cabin enabled that to be done. Secondly, since 1986, some eight years prior to this accident, seat belts had been standard equipment in this type of cabin. Thirdly, by 1994 seat belts were recognised as safety equipment for vehicles being driven on roadways and were required by law to be fitted in certain vehicles, although not in front end loaders. However, the fact that the law did not oblige the fitting of a seat belt did not exculpate the Council from providing a further safety device. Fourthly, none of the experts suggested that the fitting of a lap seat belt would not have restrained and assisted the driver of the vehicle in certain circumstances. Fifthly, there is a continuing obligation on the part of an employer to provide a safe system of work. The aggregation of these considerations makes it plain to me that the provision of a safe system of work, so far as the driver of this front end loader was concerned, demanded that a seat belt be fitted and, perhaps, that instructions be given that at least whilst the front end loader was being driven on public streets, it be worn. In my respectful opinion the issue of the fitting of a seat belt albeit of a lap type, should have been determined favourably to Mr Kelly. UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LBS v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) The next question was whether, if such a seat belt had been fitted, it would probably have averted the injury or been effective. This gave rise to the issue of causation. Whilst the determination of the question whether a seat belt should have been fitted was an important one, in the context of this case the determination of the issue of causation was critical. The submissions for the Council proceeded on the basis that once the Master decided that it was not a breach of duty to fail to provide a seat belt, it was not necessary for him to consider whether a seat belt would have prevented injury to Mr Kelly, whether Mr Kelly's spinal fractures occurred within the cabin or after ejection from it, and whether the absence of the seat belt was a material cause of his injuries. In paral7 of the written submissions the Council made its position clear submitting:- "\.. the significant seat belt issue was not causation but whether or not there was a failure on the part of the respondent to exercise reasonable care for the safety of the appellant by failing to provide a scat belt." It was submitted that in those circumstances the causation issue was "irrelevant". SRA submitted, it being in its interest to ensure that the Council was liable, that the Master should not have dismissed the claim against the Council and:- "Tn short, the risks to a driver of a front end loader, obliged to drive on public streets, without a seat belt are obvious. The difficulty of affixing a seat belt to the loader was minimal. There is no doubt that Kelly received his injuries as a result of being ejected from the cabin. Finally, the overwhelming weight of the evidence (particularly of Henderson and Mr Simpson) established on the probabilities that a lap seat belt would have prevented the ejection. Moir's evidence to the contrary was inherently incredible." Mr Poulos elaborated on this submission orally. In his further supplementary written submissions Mr Poulos conceded that the more difficult question was whether the seat belt would have been effective, although as none was fitted the question of what injuries, if any, Mr Kelly would have suffered had he been afforded the opportunity of wearing one, was, necessarily, a matter of conjecture. Reference was made in these submissions to the decisions in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 and Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. I think, with respect, that the more relevant question was that raised in relation to Duyvelshaff, namely whether a seat belt would have been effective in a relevant sense in providing Mr Kelly with a chance of either avoiding or reducing injury when the collision occurred. These submissions recognised the conflict between Dr Henderson, Dr Yeo and Mr Simpson, on the one hand, and Mr Moir, on the other, and led to a submission that the weight of evidence supported the view that ejection would not have occurred had a seat belt been fitted and worn. Whilst accepting the various evidentiary differences the submission was that the Master failed to resolve them but, notwithstanding, that was not essential to a finding of liability:- «*.. because even on the evidence from the Council's witnesses, there was at least a possibility that a seat belt would have avoided or reduced the injury to Kelly. On the principles analysed above that was sufficient for Kelly to establish causation. The various possibilities and probabilities will become important when damages are assessed." 56 UNREPORTED JUDGMENTS With respect I am not satisfied that this necessarily states the legal propositions accurately. Firstly, Duyvelshaff stands as authority for the proposition that it is for a plaintiff to establish that had a precaution been taken the injury would probably have been averted, ie that the safety measure would have been effective and that he would have made use of it if it had been available. The last point is not in issue. I should note that Mr Gleeson, on behalf of the Council, submitted that the Master had the opportunity of seeing the witnesses and assessing their credibility. There cannot be the slightest doubt that if the present point, namely the issue of causation, turned upon questions of credibility this Court would only be entitled to interfere in the exceptional circumstances referred to in Abalos and Devries. However, I do not consider that a resolution of the expert evidence depends upon any issue of credit. Rather it will be resolved by a consideration of the evidence of experts, whose views differ, but in circumstances where there is no suggestion that the views are not held bona fide or that the differences are other than legitimate differences which can occur between professionals. Conclusions Thus Far For the reasons I have given I am satisfied that the failure to provide a lap seat belt constituted a negligent omission on the part of the Council. The more difficult question is what would have been the consequence if a lap seat belt had been fitted and been worn. The evidence of Dr Yeo, Dr Henderson and Mr Simpson, supported to the extent it was by Dr Bodel, was compelling on at least one part of this issue. In my opinion, it necessarily led to the conclusion that had a lap seat belt been fitted Mr Kelly would have been restrained in the cabin, notwithstanding the force of this impact; that he would have sustained some minor head injuries and, perhaps, some bruising from the seat belt; that he would not have been ejected from the cabin; and that, in consequence, he would not have suffered the spinal injuries leading to his paraplegia. It follows from what I have just said that I am satisfied by the evidence, particularly of Dr Yeo, that the paraplegia was caused when Mr Kelly's body hit the ground, that providing the necessary force to cause the pattern of the fractures, which Dr Yeo described. I pause at this point to answer certain of the questions I posed earlier, namely:- (a) Whether, in all the circumstances, the Council was negligent in not fitting a lap seat belt. For the reasons I have given I answer this question "Yes". (b) Whether, if a lap seat belt had been worn:- (i) it would have prevented the ejection of Mr Kelly from the cabin; (ii) if it had it would, none-the-less, have caused him to suffer equally serious spinal injuries while still in the cabin, or serious, and potentially fatal, internal injuries. I am satisfied by the evidence of Professor Henderson, Dr Yeo and Mr Simpson that the lap seat belt would have prevented the ejection of Mr Kelly from the cabin. I am also satisfied by the evidence of Dr Yeo and Professor Henderson that if a lap seat belt had been worn Mr Kelly would not have suffered any spinal injuries of significance, because this was not a front on collision, or the type of collision which would have thrown him forward such as to cause flexion whilst he was in the cabin. Essentially for the same reasons, and with a possible exception to which I shall now turn, I am satisfied by the evidence of Professor Henderson that Mr Kelly would not have suffered serious internal injuries, because, he would not have been thrown forward. UWHELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LBd v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) The exception is the evidence of Dr Yeo at AB140. Dr Yeo's first answer, relevant to this point, was that in his view, as a matter of probability, Mr Kelly would not have suffered a flexion injury. Against the background of that answer it seems to me that his next answer relating to internal injuries can only be relevant in relation to a lap seat belt where the body is thrown forward but restrained by it. Accordingly, his answer at the commencement of AB141 was predicated upon that happening, which Dr Yeo did not accept was the case. It is, in my opinion, not possible to read Dr Yeo's evidence that Mr Kelly would not have suffered a flexion injury, and also to postulate that he would, in some way, which could only reasonably be connected with a forward movement giving rise to a flexion type injury, have been injured internally. (c) Whether, notwithstanding that he was not wearing a lap seat belt, the spinal injuries were suffered whilst he was still in the cabin and before he was ejected and hit the ground. In my opinion the evidence of Dr Yeo as to the pattern of fractures is overwhelmingly in favour of the view that they occurred when he hit the ground. That must be so once one eliminates, as I consider the evidence does, the possibility that he suffered any spinal fractures as a result of any flexion movement whilst in the cabin. In the result I am satisfied that the Council was negligent in failing to fit a lap seat belt; that had a lap seat belt been fitted Mr Kelly would have been wearing it; that had such a seat belt been fitted it would have restrained him in the cabin notwithstanding the force of the impact; and that he been restrained in the cabin he would not have suffered any spinal fractures rendering him a paraplegic. I am further satisfied that he would not have suffered any serious internal injuries. Accordingly, Mr Kelly has satisfied me that the Council was negligent, that its negligence was causative of the injuries which he received, and that had a lap seat belt been provided, as he asserted it should have been, he would not have suffered either the injuries he did or any other serious injuries. For these reasons I am of the view that the Master's conclusions that the Council was not liable for the failure to fit a lap seat belt, and that the failure was not causative of Mr Kelly's injuries, were in error. In my view this Court is in as good a position as the Master to determine those issues and, for the reasons I have given, I consider that there should be judgment in Mr Kelly's favour against the Council. The Liability Of SRA Ihave stated a number of reasons why, in my opinion, SRA was not negligent in the way in which the train was driven in the particular circumstances of this case. I shall deal, in a little more detail, will the question of speed. Mr Poulos furnished a series of calculations based upon the distances to be travelled and the time within which such distances would have to be travelled for the purpose of either avoiding or creating the accident. I have referred to the difficulties I have in trying to work out, with any mathematical precision, in what circumstances the accident may have been avoided short of the train's being brought to a halt before it entered the level crossing, a proposition for which I do not understand anyone contended. In my respectful opinion it is artificial to try to reconstruct times and distances when there are so many unknowns in the estimates given. I agree with the general submission of Mr Poulos that one is far better off looking at the evidence of those who were present. 58 UNREPORTED JUDGMENTS Ihave expressed my disagreement with the theory that there was a continuous stream of traffic across this level crossing of which those in charge of the train should have assumed the front end loader to be part. On the evidence I reject the suggestion that the train was being driven on the basis that it was sufficient to sound the whistle without heeding what was going on at the level crossing. If the whistle had not been sounded that would have been relied on as a ground of negligence. Rather, those in charge of the train were acutely aware of what was going on at the level crossing and, on any view of the evidence, the motor cars had passed over it when the train was still about a minute away from the level crossing. That, in the context of moving motor vehicles, provided adequate opportunity for them to clear the level crossing, which they did. Mr Bamford makes clear in his statement that he saw the three motor vehicles at the crossing when the train was 1,000 metres to its east and it was not until "we got closer to the crossing", AB339, that Mr Bright told him that "there was another one coming". That was obviously a reference to the front end loader having started to move after stopping. The evidence was that it moved very slowly. It is a matter of pure conjecture as to how close the train was when Mr Bright made the observation, but allowing for minimal reaction time, it was only a little more than 124 metres from the level crossing. It was travelling below the prescribed speed and within the speed limit at which it was allowed to travel. Those in charge of it were keeping a proper lookout. The Master made no finding as to the speed at which the train should have been travelling, but assuming it should have been travelling at half of the allowable 70 kilometres per hour or at 35 kilometres per hour, it was travelling through some 9.7 metres per second. Assuming it was 150 metres from the level crossing it would have taken approximately fifteen seconds to reach the level crossing at that speed. Within that time the front end loader would have had to have moved some 15 metres from a standing position, up a slight incline and at a very slow speed. These figures merely demonstrate the difficulty of trying to apply formulae when the evidence of Mr Sibraa, for example, was quite clear that as the front end loader moved forward the train was reasonably close. It may be that Mr Sibraa was mistaken when he said how close the train was, but there can be no doubt that he observed the train in reasonable proximity to the front end loader as it started to move. Mr Poulos sought to furnish to the Master, by way of further submissions his calculations. Although, with respect to the calculations and because of the circumstances of this accident. I do not derive great advantage from them, I consider the Master should have received them, for anything of potential use in resolving as difficult a problem as this should be considered. When I review the totality of the evidence I am totally satisfied that SRA was in no way negligent in the manner in which the Master found and, in my opinion, that finding should be reversed. The other matter upon which Mr Kelly relied so far as SRA was concerned was the failure to provide hinge gates. There was an abundance of evidence on which the Master could have found, and I think at AB487 did find, that the provision of hinge gates was not, in all the circumstances, practicable. Nor did the history of this level crossing demand that any such steps should be taken. In my opinion the appeal by SRA should be allowed. UWHELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LB9 v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) Tf others take the view that I am wrong in this conclusion and that SRA is liable to Mr Kelly, I consider the Master's assessment of contributory negligence as between Mr Kelly and SRA should not be disturbed. I do not accept the submissions made by Mr Ellicott that Mr Kelly's conduct can be described as mere inadvertence. In my opinion it was, as I have earlier described it, on the findings of the Master, which I accept, gross neglect for his own safety. Thus, when one comes to have regard to the amount by which the damages recoverable should be reduced "to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage" it seems to me that the Master's determination was correct. In any event, it is accepted that unless the award of contribution can be shown to be grossly disproportionate it should not be interfered with on appeal. Contributory Negligence As Between Mr Kelly And The Council Prima facie it may be thought that the assessment of contributory negligence as between Mr Kelly and SRA should be applied as between Mr Kelly and the Council. This was my initial view. However, on reflection, I do not think that is the correct approach, because the default on the part of each party has to be weighed having regard to their respective acts and omissions. There is no doubt that had Mr Kelly had due regard to his own safety he would not have been injured. Equally, in my view, there is no doubt that had the front end loader been fitted with a lap seat belt then, notwithstanding the failure of Mr Kelly to have regard to his own safety, that would not have led to his being seriously injured. That consequence flowed from the absence of the lap seat belt. When the matter is viewed in that light it seems to me that the preponderant cause for the injury to Mr Kelly was the failure to fit the lap seat belt and, whilst Mr Kelly's own failure to take care for his safety contributed to the accident, I am of the view that the appropriate, reduction for contributory negligence on his part should be only twenty per cent. In the result I consider the Council should pay eighty per cent of the damages to which Mr Kelly is otherwise entitled. The Proceedings Between GIO Workers Compensation (NSW) Ltd and Mercantile Mutual Insurance (Australia) Ltd GIO Workers Compensation (NSW) Ltd, ("GIO"), was, at all material times, the workers compensation insurer of the Council, and Mercantile Mutual Insurance (Australia) Ltd, ("MMI"), was its motor vehicle insurer in respect of liability under the Motor Accidents Act 1988. GIO sued MMI on the basis that MMI's policy of insurance extended to indemnify the Council in respect of Mr Kelly's accident. In view of the findings of the Master GIO was not liable, because the Council was not responsible. In these circumstances the Master dismissed GIO's Statement of Claim and ordered it to pay MMI's costs of the proceedings. GIO complained about this order for costs and, on the hearing of this appeal, submitted that if Mr Kelly's appeal against the Council is allowed the Master was necessarily in error in dismissing GIO's Statement of Claim against MMI. In my view that result must follow. GIO further complained that if Mr Kelly's appeal against the Council was allowed it will be necessary to order a new trial as between GIO and MMI, which, in my opinion, would never have been necessary, but for the concession at trial to which I shall now refer. 60 UNREPORTED JUDGMENTS On behalf of MMI Mr J D Hislop of Queen's Counsel submitted that the appeal, in so far as the Master had found favourably to the Council, should be dismissed. At p49 of the transcript he said:- "Tf the Court sought to enter a verdict on that basis, then there was a concession made by counsel appearing on behalf of my client in the Court below at 329H to 329J. and it would seem to me that if this Court was minded to enter a verdict against the Council then that concession made at that hearing should be binding upon me, so I don't seek to put any submissions to this Court in relation to that aspect of the matter if the Court, contrary to the submissions which I've put, determined that there should be a verdict for the Council. On the other hand, if the Court was to determine that the matter should be returned for a re-hearing, then I would not wish to be fettered by something that occurred in the first hearing." The concession to which Mr Hislop referred was in the following terms:- "MENZIES: If you were to find that the system which involved having the system of refuelling on the other side of the line involved a breach of duty and found against the employer for that reason, that would not be a fault involving the use or operation of the motor vehicle. MASTER: You had accepted the fact that the seat belt question was one that you were going to be liable for. MENZIES: Yes." The matter identified by the Master was the basis on which I consider the Council is liable to Mr Kelly and, accordingly, MMI is liable to indemnify the Council. Proposed Orders The orders I propose are:- 1. In the appeal by Mr Kelly against judgment in favour of the Council:- (a) That the judgment for the Council be set aside. (b) That in lieu thereof there be judgment on the issue of liability in favour of Mr Kelly. (c) That the matter be remitted to the Common Law Division to assess the quantum of damages as between Mr Kelly and the Council. (d) That the amount of damages so assessed be reduced by twenty per cent to reflect Mr Kelly's contributory negligence. (e) That the Council pay Mr Kelly's costs of the hearing at first instance and of the appeal. (f) That the Council have a certificate pursuant to the Suitors Fund Act, if it is otherwise entitled to one. 2. In the appeal by SRA against the judgment in favour of Mr Kelly:- (a) That the judgment for Mr Kelly be set aside. (b) That in lieu thereof there be judgment for SRA and Mr Bamford on Mr Kelly's claim. (c) That Mr Kelly pay SRA's and Mr Bamford's costs of the hearing at first instance and of the appeal. (d) That Mr Kelly have a certificate pursuant to the Suitors Fund Act, if he is otherwise entitled to one. 3. In the appeal by GIO against MMI:- (a) That the judgment for MMI against GIO be set aside. UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LBD v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA) (b) That it be declared, having regard to the concession made on the hearing, that MMI is liable to indemnify the Council in respect of the damages the Council is required to pay to Mr Kelly. (c) That MMI pays GIO's costs of the hearing at first instance and of the appeal and that it have a certificate pursuant to the Suitors Fund Act, if it is otherwise entitled to one. That may leave outstanding a further question, namely whether Mr Kelly is entitled to be indemnified by the Council in respect of the costs which he is obliged to pay to SRA and Mr Bamford. It seems to me that there is no reason why the Council should be obliged to make that payment and, in any event, Mr Kelly's costs of the appeal as between himself, on the one hand, and SRA and Mr Bamford, on the other, are subject to an order under the Suitors Fund Act if Mr Kelly is otherwise entitled to the benefit of that Act. 1. In the appeal by Mr Kelly against judgment in favour of the Council:- (a) That the judgment for the Council be set aside. (b) That in lieu thereof there be judgment on the issue of liability in favour of Mr Kelly. (c) That the matter be remitted to the Common Law Division to assess the quantum of damages as between Mr Kelly and the Council. (d) That the amount of damages so assessed be reduced by twenty per cent to reflect Mr Kelly's contributory negligence. (e) That the Council pay Mr Kelly's costs of the hearing at first instance and of the appeal. (f) That the Council have a certificate pursuant to the Suitors Fund Act, if it is otherwise entitled to one. 2. In the appeal by SRA against the judgment in favour of Mr Kelly:- (a) That the judgment for Mr Kelly be set aside. (b) That in lieu thereof there be judgment for SRA and Mr Bamford on Mr Kelly's claim. (c) That Mr Kelly pay SRA's and Mr Bamford's costs of the hearing at first instance and of the appeal. (d) That Mr Kelly have a certificate pursuant to the Suitors Fund Act, if he is otherwise entitled to one. 3. In the appeal by GIO against MMI:- (a) That the judgment for MMI against GIO be set aside. (b) That it be declared, having regard to the concession made on the hearing, that MMI is liable to indemnify the Council in respect of the damages the Council is required to pay to Mr Kelly. (c) That MMI pays GIO's costs of the hearing at first instance and of the appeal and that it have a certificate pursuant to the Suitors Fund Act, if it is otherwise entitled to one. That may leave outstanding a further question, namely whether Mr Kelly is entitled to be indemnified by the Council in respect of the costs which he is obliged to pay to SRA and Mr Bamford. It seems to Rolfe AJA that there is no reason why the Council should be obliged to make that payment and, in any event, Mr Kelly's costs of the appeal as between himself, on the one hand, and SRA and Mr Bamford, on the other, are subject to an order under the Suitors Fund Act if Mr Kelly is otherwise entitled to the benefit of that Act. 62 UNREPORTED JUDGMENTS Counsel for the appellant (Kelly): R J Ellicott QC/P Hennessy Solicitors for the appellant (Kelly): Walsh & Blair Counsel for the appellant (GIO): J N Gleeson QC/M Gilbert Solicitors for the appellant (GIO): Moray & Agnew Counsel for the first respondent (Narrandera): J N Gleeson QC/M Gilbert 10 Solicitors for the first respondent (Narrandera): Moray & Agnew Solicitors for the respondent (GIO): Moray & Agnew Counsel for the second and third respondent (SRA/Bamford): J Poulos QC/P Brereton Solicitors for the second and third respondent (SRA/Bamford): Belbridge Hague Counsel for the respondent (Mercantile): J D Hislop QC 20 Solicitors for the respondent: Mercantile Sparke Helmore