New South Wales Court of Appeal CITATION : Texcrete Pty Limited v Khavin & 1 Ors [2003] NSWCA 337 HEARING DATE(S) : 25 September 2003 JUDGMENT DATE : 19 November 2003 JUDGMENT OF : Santow JA at 1; McColl JA at 86; Foster AJA at 87 DECISION : (1) Appeal and cross-appeal dismissed; (2) Appellant to pay the costs of the first and second respondents. CATCHWORDS : BREACH OF STATUTORY DUTY - s27 Factories, Shops & Industries Act 1962 - failure to fence a dangerous machine. - NEGLIGENCE - duty of care of appellant occupier, to the extent it existed, to the first respondent employee was not breached - second respondent employer not liable in negligence to the first respondent employee. - DAMAGES - discretionary. Factories, Shops & Industries Act 1962; s27 LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act, 1946; s5(1)(c) Workers Compensation Act 1987 (NSW); s151Z(2) Azar v Dairy Farmers Co-operative Ltd (1989) 15 NSWLR 651 Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 Dairy Farmers Co-op Ltd v Azar (1990) 170 CLR 293 Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313 Forest v John Mills Himself Pty Ltd (1970) 121 CLR 149 Liftronic Pty Ltd v Unver (2001) 179 ALR 321 Mitchell v North British Rubber Co Ltd (1945) SC(JC) 69 O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 CASES CITED : Ross v WGE Pty Limited (1998) 44 NSWLR 510 Shedlezki v Bronte Bakery Pty Ltd (1972) SR(NSW) 378 Sherman v Nymboida Collieries Pty Ltd (1963) 109 CLR 580 Smithwick v National Coal Board (1950) 2 KB 335 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 State of New South Wales v Lepore (2003) 77 ALJR 558 Sutter v Gundowda Pty Limited (1915) 81 CLR 418 Twynam Pastoral Company Pty Limited v Bennett [2002] NSWCA 319 Van der Sluice v Display Craft Pty Limited (2002) NSWCA 404 Whisprun v Dixon (2003) 77 AJLR 1598 TEXCRETE PTY LIMITED (Appellant) PARTIES : Boris KHAVIN (First Respondent) ABB INDUSTRIAL SYSTEMS PTY LIMITED (Second Respondent) FILE NUMBER(S) : CA 40259/03 G M Watson, SC/ Ms T L Wong (Appellant) COUNSEL : M J Slattery, SC/ P J Doherty (First Respondent) C R R Hoeben, SC/ D G Saul (Second Respondent) Henry Davis York (Appellant) SOLICITORS : Boyd House & Partners (First Respondent) Leitch Hasson Dent (Second Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 3134/01 FILE NUMBER(S) : LOWER COURT Finnane DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40259/03 DC 3134/01 SANTOW JA McCOLL JA FOSTER AJA 19 NOVEMBER 2003 TEXCRETE PTY LIMITED v Boris KHAVIN & 1 ORS Judgment 1 SANTOW JA: INTRODUCTION The appellant and cross-claimant in these proceedings is Texcrete Pty Limited. Texcrete was held liable as occupier of the relevant premises for breach of statutory duty he owed to the first respondent and plaintiff in the original proceedings, Boris Khavin. That statutory duty was held by the trial judge, M J Finnane DCJ, to arise under the then applicable s27(1) of the Factories, Shops & Industries Act 1962 ("FSI Act") essentially for failure to fence a dangerous machine. Mr Khavin was injured in course of repairing Texcrete's machine on its premises. Mr Khavin was then employed as an engineer by the second respondent, ABB Industrial Systems Pty Limited. His right hand was pulled into the rollers in the machine when he was attempting to carry out an inherently dangerous repair operation, using a hand-held tachometer. Texcrete had left the machine with its fence removed, evidently to facilitate that repair. 2 The first respondent though succeeding on the statutory count was unsuccessful in his claim against the appellant occupier for negligence. It now cross-appeals against that part of the decision. The first respondent chose not to sue his employer, the second respondent. However, Texcrete did sue the employer for contribution in relation to damages, pursuant to s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act, 1946. The trial judge, M J Finnane J, decided against the appellant's cross-claim. But he added that in case he were wrong, if contribution were required to be assessed, it should be 90% against the appellant as occupier and 10% against the second respondent as employer. 3 The issues on this appeal are as follows: (a) Was the trial judge in error in finding that s27 of the FSI Act applied to the circumstances surrounding the work being performed by the first respondent to the appellant's machinery, where the error relied upon related, essentially, to certain findings of fact; (b) In relation to the first respondent's cross-appeal (originally formulated incorrectly as a Notice of Contention) did the trial judge err in failing also to conclude that the appellant was liable in negligence to the first respondent; (c) Did the trial judge err in failing to find that the second respondent employer breached its duty of care to its employee, the first respondent, and thus erred in (i) failing to find that the appellant was entitled to a complete indemnity from the second respondent on the basis that the injury suffered was caused by the negligent actions and omissions of the second respondent rather than the appellant and/or (ii) in failing to award an apportionment of 50% or more in favour of the appellant; (d) Did the trial judge err in failing to find that s151Z(2) of the Workers Compensation Act 1987 (NSW) applied in the circumstances, to reduce the first respondent's damages; (e) Were damages for loss of future economic capacity and general damages assessed by the trial judge at so excessive a figure or on such basis as to give rise to appellable error? 4 The appellant abandoned grounds 3, 4, 5, 6, 8, 11, 16 and 17 in its grounds of appeal and also ground 18(c). The appellant belatedly sought to raise a new ground of appeal, namely that the appellant was not, at the time the accident occurred, an "occupier" within the meaning of that term in the FSI Act, and so was not subject to the duty imposed by s27 of the FSI Act. Rather, (the appellant sought to contend) it was the employer, the second respondent, which was bound by the statutory duty as "occupier" and that, being so bound, the appellant could not be also bound as occupier, citing in support Ross v WGE Pty Limited (1998) 44 NSWLR 510. 5 The first respondent objected to the appellant now raising this ground on appeal. This was on the basis that it had not been raised at trial and evidence could have been given, had it been so raised, which would or could have prevented the point from succeeding; Sutter v Gundowda Pty Limited (1915) 81 CLR 418 at 438; Connecticut Fire Insurance Co v Kavanagh [1892] AC 473. 6 That objection was upheld by this Court on appeal. Apart from the difficulties in the way of such contention succeeding if it were permitted now to be raised, what was said in Whisprun v Dixon (2003) 77 AJLR 1598 in the judgment of Gleeson CJ, McHugh and Gummow JJ at [51-52] is directly in point (footnotes omitted): "[51] Accordingly, this appeal must be allowed. It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs. [52] As Water Board v Moustakas makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is "necessary to look to the actual conduct of the proceedings". Thus in Water Board, the plaintiff's case at trial had been that his employer was negligent in failing to prevent traffic from crossing in to the lane in which he was working. On appeal, the Court of Appeal of New South Wales allowed the plaintiff to raise a case that the employer was negligent in failing to provide a barrier to prevent the plaintiff from straying into the adjoining lane. This Court held that, although this alternative case was within the particulars, it had not been the plaintiff's case at the trial and the Court of Appeal had erred in allowing it to be raised on appeal." 7 If the point had been raised at trial it would have been open to the first respondent to reconsider the joinder of the second respondent as a defendant and re-consider the whole case in negligence against that party. Furthermore, it would have been open to the first respondent to have adduced at trial further evidence as to the relative degree of control of the first respondent's work by, respectively, the appellant and the second respondent, the number and nature of the duties of any other employees of the second respondent, and other matters going to the degree of occupation or control actually exerted by the second respondent in the context of the FSI Act. In those circumstances, leave was declined to the appellant now to add this further ground of appeal. SALIENT FACTS 8 Most of the salient facts are uncontroversial. These follow. 9 On 7 April 1998 the first respondent, an engineer employed by the second respondent ("ABB") was injured at premises owned, operated and, it can be accepted, occupied by Texcrete. It was upon those premises that, in the circumstances recounted below, his right hand was severely injured when pulled into rollers in a roll-tensioning machine in the appellant's premises. The first respondent was adjusting it at the time. 10 The function of the machine was to provide appropriate tension to paper being fed through it from a roll into a dye casting machine which was used for the purposes of manufacturing stencilling or patterns to be used in impressing or decorating concrete. 11 The physical layout of the machine in relation to the paper roll and the dye casting machine can be seen at Blue, 4. In that photograph the machine is between the roll of paper and a larger machine. It is blue in colour in the photograph. 12 A close up of the machine from the point at which the Plaintiff was operating it and its relationship to the paper roll may be seen in the photograph at Blue, 1. The guard shown on the machine at Blue, 1 was held by the trial judge not to have been in place at the time of the plaintiff's injury. It was the appellant's failure to have that or any other guard in place which was the basis of the trial judge's finding of liability in favour of the first respondent against the appellant; see [19] to [21] below. 13 The "pinch point" in which the plaintiff ultimately came to injure himself can be seen in Blue, 1. It is immediately above the yellow and black painted lower portion of the metal guard when one looks through the mesh forming part of the guard immediately above the yellow and black painted portion to a point where the two rollers meet. The lower roller was that which powered the machinery. The purpose of the other roller was to create tension. 14 Another view of the larger roller and the fencing of the machine as it existed prior to the first respondent's accident can be seen at Blue, 3. Subsequently a new guard was installed and that can be seen at Blue, 2. 15 A description of the machine can be found in the judgment at Red, 30H-N and also in the first respondent's evidence at Black 15Q-S, 18E-H. 16 The purpose of the first respondent's visit to the appellant's premises was to commission the machine and synchronise it with the dye cutting machine. As part of that work, it was necessary to measure the linear speed of the tensioning roller. That can be seen at Blue, 1 and 3. It was not operating in a way which provided a satisfactorily tensioned supply of paper from the roll as depicted in the layout at Blue, 4. 17 The first respondent's description of his task in using a handheld tachometer (which was his own) to measure the linear speed of the tensioning roller is set out at Black, 21V-22H, Black, 23B-D, H-P, Black 40H-K and 41B-X. In essence, he was using the hand held tachometer (which can be seen at Blue, 5) by holding it with two hands applying pressure to the tachometer and against the moving tensioning roller depicted at Blue, 1 and 3. This was so as to measure its speed and to calibrate it. This was so that it corresponded with the speed required by the dye cutting machine so as to produce continuous and even tension on the paper being fed through it. His fingers were millimetres from the moving roller. Whilst he was operating the machinery in this way his right hand slipped and became caught in the machinery; see [25] below for what happened in more detail. 18 The first respondent sued the appellant for damages for breach of statutory duty, but, as I have said, not his employer the second respondent; liability was in issue. The first respondent claimed that the appellant was under a strict duty to fence the machinery in question under s27 of FSI Act. Accordingly, it was contended, the appellant had a legal liability to him for the injuries he suffered, arising from the appellant's breach of that statutory duty. That duty, it was said, was an absolute one; see s27(2) quoted at [28] below. 19 The appellant denied such breach. It also claimed that any damages awarded would have to be reduced because of the operation of s151Z of the Workers Compensation Act 1987 (NSW). It also sought contribution and indemnity from the second respondent. 20 The first respondent had been sent by the second respondent to service the electronic workings of a machine at the factory of the appellant. He had been at the premises the previous day. 21 The machine was to have a guard on its outside. At the time of the accident the guard had been removed. The trial judge came to the conclusion, on the evidence of the manager of the appellant (Mr Whitbread) and the first respondent, that it had been removed by the appellant. That was in the end not disputed on appeal. 22 The trial judge believed the first respondent to be an honest witness (Red, 30V). He believed the first respondent when he denied that he had taken the guard off. 23 The trial judge stated that the only reasonable inference that could be drawn in relation to the guard was that the appellant's employees or some agent retained by the employee removed the guard (and later replaced it with a yellow guard); Red 31F. 24 The trial judge also found that even if the guard was on the machine it was deficient as a guard as it allowed access to the two rollers of the machine that caused the injury (Red, 31I). The guard was found not to be sufficient to be considered "secure fencing" as required by s27 of the FSI Act. 25 To elaborate, the accident occurred when the first respondent was attempting to determine why the roller speeds on the two machines were different. The roller machine had no in-built tachometer nor access from the sides (Blue, 231, report of Mr Frost) nor any other safe means of access (Blue, 196 and 230-1). The appellant held the tachometer in both hands but with the thumb and fingers of the right hand closer to the measuring wheel. When Mr Whitbread started the machine the first respondent placed the tachometer wheel on the drums close to where one drum rolled close to the other one. His hand probably slipped and his right thumb was dragged into the rollers causing severe crushing injuries to his right thumb, index, middle and ring fingers. 26 It was solely the first respondent's decision to work in this fashion. He was of the opinion that there was no other way to do it, there being no other part of the machine that could be used to enable him to carry out the tests. 27 The first respondent thus brought his action against the appellant on two bases – negligence and breach of statutory duty (s27 of the FSI Act). He was successful on the latter basis only. The trial judge awarded a global sum of $90,000 for loss of future earning capacity. While at trial the first respondent's counsel claimed $100,000 for general damages, the trial judge assessed general damages at $150,000. Both items of damage are challenged on appeal as excessive. The first respondent's counsel, in his written argument before this court, said that "upon mature reflection, the figure suggested …was obviously downright miserable" and "the trial judge correctly viewed it as such" (Red, 37N). This assessment was in circumstances where the first respondent suffered severe injuries, though his behaviour was one of stoicism. His surgeon, Dr Conolly, recommended a wrist fusion. The first respondent has remained reluctant to undertake that operation. This is because he wants to continue working for as long as he can and having such an operation will mean time off (he is 63 years old). Without the operation the trial judge estimated that the first respondent would work for another 3 years whereas otherwise he would likely have worked to 70 years. He estimated damages on this assumption, in the form of a lump sum. RESOLUTION OF APPEAL 28 Section 27 of the FSI Act (now the Shops and Industries Act 1962 (NSW)) provides relevantly as follows: " 27 Dangerous machinery to be fenced (1) The occupier of a factory shall securely fence all dangerous parts of the machinery therein, and with respect to such fencing the following provisions shall have effect: (a) ……… (2) The duty imposed on the occupier of a factory by this section shall be an absolute duty, in no way qualified by any other provision of this Act. (3) In this section factory includes, in addition to any premises which constitute a factory as defined in section 4, any building in which sheep are shorn by machinery. (4) Any occupier of a factory who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act. (5) In any prosecution for a breach of the obligation imposed on an occupier by paragraph (d) of subsection (1) it shall be a defence if the defendant proves that: (a) the parts required to be fenced were necessarily exposed while in motion or use for examination or for lubrication or adjustment shown by such examination to be immediately necessary, and (b) the period of exposure was no longer than was absolutely necessary for such examination, lubrication or adjustment, and (c) he or she took all precautions necessary to avoid the risk of injury to any person, and (d) such other conditions as may be prescribed were complied with." 29 In s4 of the FSI Act, "occupier" means: "in relation to a factory or shop, the person, partnership, association, or corporation employing persons in the factory or shop, or occupying the factory or shop, and includes any agent, manager, foreman, or other person acting or apparently acting in the general management or control of the factory or shop and the owner or person deemed to be the occupier pursuant to subsection (2)." 30 Section 27 of the FSI Act provides the backdrop to the first issue on this appeal. It is whether the trial judge was in error in finding that s27 of the FSI Act applied to the circumstances surrounding the work being performed by the first respondent to the appellant's machinery so as to give rise to a statutory duty breached in the circumstances. 31 Essentially the appellant attacks on several bases the trial judge's conclusion that s27 of the FSI Act did apply to the work being performed by the first respondent to the appellant's machinery. The first basis of attack was that the section was by its terms not capable of applying in the circumstances. The second basis of attack is that the trial judge failed to find that the first respondent's injuries were caused solely by his own acts and omissions and should have done. The third basis of attack is that any breach by the appellant of s27 of the FSI Act did not cause or did not materially contribute to the first respondent's injuries. Finally, it is said that the trial judge erred in failing to give any weight to an admission made by the first respondent to the WorkCover Authority that he would have removed the blue guard if it had been in place in any event, in order to perform his work. In addition, the appellant contends that the trial judge erred in finding that any duty of care which the second respondent may have owed to the plaintiff was negated by the appellant's breach of s27 of the FSI Act. 32 The appellant's argument is elaborated in its written submissions as follows: "13. The work which was being performed by the first respondent involved of necessity the deliberate placement by him of his body in very close proximity to the machinery in order to test the linear speed of the rolls. (Black, 42L-S, 42X-D) 14. he had to apply pressure to the tachometer which he was holding to enable the reading end of it to be close to the roller with sufficient pressure applied to take a reading (Black, 43L-R, 50N-P). Those measurements could not be performed in any other way than by having the guard removed because of the design of the machinery, see report of Mr Richard Frost, Blue, 231F-I. The only way in which the measurements could have been taken was for the guard to have been removed. He acknowledged as much in his statement to the WorkCover inspector. The trial judge omitted this fact in coming to his conclusion that the appellant was in breach of section 27 of the Act. 15. The first respondent's injury was not causally connected with the breach. This case falls within the exceptional class where the conduct of the operator removes his actions from the protection provided by the section which is otherwise absolute in its terms: Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313 at 317, 319; Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152 at 164. 16. Whilst it is recognised that exceptional defence generally applies to persons who intentionally injure themselves it is equally applicable to cases where there is no other practicable way to operate the machinery for the purpose of testing it in the way in which the first respondent was testing it in this case. 17. The first respondent accepted that he would have had to remove the guard if it was in place in order to operate the machinery and thus he is in the same position as an employee who deliberately removes a guard contrary to a workplace instruction. Charles v Smith & sons (England) Limited [1954] 1 WLR 451 at 455. 18. In this case the first respondent's actions necessitated operating the machinery according to his skill and expertise without the guard being in place and thus the case has similarities to Shedlezki v Bronte Bakery Pty Limited (1972) 72 SR(NSW) 378." 33 There are a number of significant flaws in the argument so advanced. The first is that as a question of fact, it could not be said that the only way in which the work could be performed by the first respondent, that of testing and correcting the linear speed of the rolls, was by removing the guard and proceeding with the tachometer in the way that that was done. 34 The evidence of the first respondent (at Black, 46 and see also 57A) was that there were many different ways to measure the linear speed. Because of the cheap and bad design of the machine, those ways of readily doing so were not available save as noted below. But the essential point is that the appellant was responsible for the essential vice of the machine's relative inaccessibility for carrying out that operation in an easy or safe way, a point confirmed by the expert Mr Richard Frost at Blue, 230 where he says: "Unfortunately, the machine did not provide any easy or safe way in which such access could be gained". What he then says is important and I quote it below, particularly drawing attention to (d): "Any prospective access path to the machine to take the required measurements provided problems, as follows: (a) It can be clearly seen from figures 4 and 5 that the rear of the machine provided no such access without removing the guard seen in these Figures. The removal of this guard would have provided access to the rollers without the hazard of an in-rolling pinch point. However, the presence of a loop of strip between the machine and the profile cutting machine, which would have been somewhat unstable in its extent and its position during the commissioning process, would have made the taking of the measurement from this position difficult and dangerous. (b) Mr Khavin was not a tall man, measuring only approximately 1300mm to his armpits; accordingly, as is seen in Figure 9, which shows Mr Khavin in the position which he occupied at the time he was taking the measurement just prior to his accident, it was not practicable for him to reach into the open space between the front and the rear guards on the machine and take his measurement from the top of the upper roller. (c) Removing the guard from the front of the machine, while giving a clearer access to the rollers, would also have further exposed the in-rolling pinch point formed by the rollers in the vicinity of the position where Mr Khavin had to stand to take his measurements. (d) The machine did not provide an "end space" at the ends of the rollers, which Mr Khavin's hands could occupy without overlapping the width of the rollers while the wheel of the tachometer was applied to a roller. In my opinion, the design of the machine itself was such that it did not lend itself to a safe execution of the measurement of surface speed which would be inevitably required as part of its commissioning. Further, in my opinion, this would have been apparent to experienced designers of such machines and, to this extent, in my opinion Mr Khavin's accident was entirely foreseeable and, by better design, was entirely preventable." 35 It is apparent that if the end of the rollers had been removed from the machine in circumstances where the machine (if better designed) did provide an "end space", then that would have been the safe way of access which would have avoided the pinch point. 36 There was also on the available evidence, a revolution per minute ("rpm") read-out with a digital display on the appellant's machine (Black, 23C). As that data was digitally available, the first respondent's submission is that it was quite technically feasible for a measurement of the linear surface speed of the roller to be taken also, or mathematically inferred from such digital data. That would demonstrate that it was feasible to perform the measuring work without removing the guard. That in turn strengthens the inference that the appellant's removal of the guard, so impliedly inviting the measurement to be carried out that way, materially contributed to the accident. The first respondent by submission dated 23 September 2003 (filed by agreement after oral argument) subsequently filed submission, elaborates on the mathematical inference in these terms: "4. The point was just a mathematical inference to demonstrate the feasibility of what is already otherwise in the evidence from: (a) the first respondent, that there "… is a 1000 different ways to measure the linear speed" (Black, 46P); (b) Dr Frost, that it was technically feasible safely to measure the linear speed at the surface of the roller (Blue, 230-31). 5. The formula is merely a piece of mathematical logic, which may be applied to any measurement of circular motion taken in RPM, to derive a linear surface speed. 6. Not surprisingly, the formula bears a functional relationship to the geometrical calculation 2pR, used to derive the circumference of a circle from its radius. The first respondent informs the Court that (excluding the effects of friction) the linear surface speed of a drum (in kilometres per hour) is derivable by the formula 7.2pRT, where R is the drum radius in metres and T is the number of rotations per second of the drum." 37 No submission was put in rebuttal of this further submission of the first respondent of 23 September 2003 such as by reference to the effects of friction. It can be taken as correct. 38 Brief reference was made to the fact that a window could have been provided no larger than the size of the tachometer within the guard. Nothing was said in rebuttal of that. It supports the proposition that the design, here of the guard, was inherently deficient. 39 When Texcrete, which is the employer's client, removed the guard on its own machine, it clearly signalled to the first respondent to proceed accordingly. That the first respondent chose to do so when there might have been other ways possibly less convenient, of proceeding more safely, does not alter the fact that the failure to secure and retain fencing upon the machinery by the appellant but instead removing it as the appellant did, was a default which preceded the injury and provided the circumstances in which the first respondent was required to choose his method of performing his task. Clearly, then, the accident cannot in any sense be said to have been wholly caused by his own act. 40 The statute makes clear that the occupier's duty under the section is an absolute duty, in no way qualified by any other provision of the Act; see s27(2), Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; Forest v John Mills Himself Pty Ltd (1970) 121 CLR 149. 41 The cases which have dealt with s27 or its predecessor s33 of the 1912 Act, make clear that the scope for exception is a narrow one. In Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313 an employee had his hand drawn into a machine that rolled "slabs" of rubber. The machine pulled the skin of the employee's finger and lacerated his hand. The machine had a "stop cord" which, when pulled, caused the machine to stop. The employee reached for the cord but missed it. The jury at trial decide that the machine was not "dangerous" for the purpose of the Act. While the majority held that the jury decision was not a perverse verdict, the majority reasoning so based is not such as to provide any basis supportive of the appellant's contention. Indeed Dixon CJ at 320, in dissent, quoted Denning LJ in Smithwick v National Coal Board (1950) 2 KB 335 at 350-1: "The limit of his [the occupier's] responsibility is only reached when the machinery is safe for all except the incalculable individual against whom no reasonable foresight can provide – the individual who does not merely do what is unlikely, but also what is unforeseeable, or, at least, not to be foreseen by any ordinary man" 42 On the issue of practicability, Dixon CJ stated earlier (at 319) that by parliament making the duty an absolute one it has probably made it necessary to "…adopt the view that the impracticability of fencing, that is guarding, a machine or part of a machine, is no answer to the requirements of the section if the machine or part is in truth dangerous." 43 Dixon CJ at 320 also quoted with approval Lord Cooper in Mitchell v North British Rubber Co Ltd (1945) SC(JC) 69 at 73: "The test is objective and impersonal. Is the part such in its character, and so circumstanced in its position, exposure, method of operation and the like, that in the ordinary course of human affairs danger may reasonably be anticipated from its use unfenced, not only to the prudent, alert and skilled operative intent upon his task, but also to the careless or inattentive worker whose inadvertent or indolent conduct may expose him to risk of injury or death from the unguarded part?" 44 First, the above passages demonstrate that there is no exculpation based upon the impracticability of fencing; in that sense clearly if the part or the whole of the machine is dangerous, then the obligation to fence is absolute. 45 Second, if even careless and inattentive workers must be secured from danger, a fortiori a prudent, alert and skilled operative who commits an error of judgment encouraged by the pre-existing unfenced state of the machine by reason of the removal of the guard, and here under the exigency of having to perform his task, should be able to invoke that duty. 46 Other cases take a similar approach. In Azar v Dairy Farmers Co-operative Ltd (1989) 15 NSWLR 651 an employee had his hand crushed in what was called a "Graham Enoch Pneumatically Operated Sixty Head Milk Bottle Crater". Crates were conveyed to a position under gripper heads that then lowered bottles into the crate. On the occasion of the accident an employee endeavoured to remove some glass from a crate that was awaiting full bottles, attempting to do so before the gripper heads descended with the full bottles. He was not quick enough and had his hand crushed between the broken glass and a bottle being lowered into position by the gripper head. The defendant argued successfully before the trial judge that the gripper heads themselves did not create a nip point with the bottom of the crate and therefore were not dangerous parts of the machinery and there was no obligation to fence them. The Court of Appeal overturned this decision, saying that the machine parts were dangerous parts of the machine. The High Court upheld this decision. 47 Clarke JA at 656-7 drew upon the decision of Dixon CJ in Dunlop Rubber when he said that: "It is well settled that a part of the machinery is dangerous if in the ordinary course of human affairs danger may be reasonably anticipated from the use of the part without protection." 48 This test was endorsed by the High Court on appeal: Dairy Farmers Co-op Ltd v Azar (1990) 170 CLR 293 at 297. 49 Here, I would similarly conclude that in the ordinary course of human affairs, where a machine provides no readily convenient way of adjusting it or fixing it than to remove the guard, though there be a way at some inconvenience to do so, it can be expected that a person in the first respondent's position could well be injured in precisely the circumstances in which the first respondent was injured and should be able to invoke the statutory duty under s27. 50 Dealing with other cases advanced as representing exceptions to the absolute character of the duty, in Sherman v Nymboida Collieries Pty Ltd (1963) 109 CLR 580, the plaintiff failed under legislation which might be said to be analogous, namely legislation dealing with coal mines requiring that they be kept properly ventilated. Here, the plaintiff was the Mine Deputy with responsibility to check whether ventilation in the mine was sufficient to dispel any gas. He was found dead following an explosion of gas in the mine with a lamp and a cigarette lighter beside it. The mine owner was held not to be liable because there was no causal connection between the mine owner's acts or omissions and the plaintiff's injuries, when the plaintiff's utterly rash conduct in apparently lighting a cigarette lighter in a gas filled area was taken into account. Essentially, the separate and independent act of the employee brought about the liability, more especially as the employee was the one responsible for ensuring that the statutory duty was fulfilled, that is to say, making sure that the mine was properly ventilated. 51 Similarly in Shedlezki v Bronte Bakery Pty Ltd (1972) SR(NSW) 378 the plaintiff failed in his action, as it was his own failure to provide safe equipment which meant there was no causal connection between the defendant's acts and omissions and the plaintiff's injuries. In Shedlezki the plaintiff and the defendant were in effect the same entity, the plaintiff being the managing director and chairman of the defendant company and its master baker who was so injured. There the actions of the plaintiff could not be distinguished from that of the defendant. 52 In the present case, while it is true that the first respondent was recognised as the expert by his employer, that did not mean that the first respondent and the second respondent should be treated as in effect indivisible. In any event, the critical fact is that there was no guard off the machine when the first respondent began working on it, which was entirely the fault of the appellant and not of the employer. 53 There are of course significant points of distinction between both Shedlezki and Sherman on the one hand and the present case on the other. In Shedlezki, Asprey JA (with whom Herron CJ concurred) stated at 385: "In both Ross' case and Boyle's case, as would be the fact in nearly every instance of this type of litigation, in order to show that the plaintiff-employee was the sole cause of the breach of statutory duty and the resulting accident, it would have been necessary for the defence to have been successful for the defendant-employer to attempt to show, for instance, that the proper equipment was provided by it and adequate instructions, where requisite, were given for its use." 54 Obviously this did not occur here. The appellants left the guard on the machine. Neither proper equipment nor instructions were provided. The appellant failed in the performance of its duty. 55 Shedlezki is further distinguished in principle from the present case on page 385. Asprey JA states that "The question whether the accident sustained by the plaintiff was caused solely by his own fault must be determined by applying common sense to the facts of each particular case." 56 Common sense directed a result in that case that was unfavourable to the plaintiff. In the present case common sense would dictate that the plaintiff's actions could not be considered the sole cause of the accident, in light of the fact that the defendant had failed to provide sufficient fencing for the machine. 57 Similarly the case of Sherman, as outlined above, is markedly different from the present case by reason of the fact that the first respondent was not employed both to fix the machine and keep it guarded. The first respondent was not responsible for discharging one of the duties the statute imposed, in contrast to the deceased in Sherman, who was. Conclusion 58 I consider that there is no basis for avoiding the conclusion reached by the trial judge, namely that the appellant was in breach of its statutory duty to the first respondent by reason of its breach of s27(1) of the FSI Act in leaving the relevant equipment unfenced, with the actions of the first respondent being not such as to remove that duty. Negligence on the part of the appellant? 59 The first respondent puts the case for the appellant's negligence in these terms: "(f) even though the first respondent chose to do the task the way that he did the appellant's negligent breach of duty caused the accident because: (i) the failure to securely fence the machinery by the appellant was a default which preceded and provided the circumstances in which the first respondent was required to choose his method of performing the task; and (ii) thus, the accident cannot in any sense be said to have been wholly caused by his own act, (iii) the cases which apply section 27 of the Factories Shops & Industries Act 1962 to cases of the testing of machinery are just as much applicable to the cause of action in negligence as to the statutory count where no guard has been provided for the first respondent; (iv) this is not a case where the plaintiff has removed a guard himself from the machine he was testing, nor did he deliberately place his hand inside any relevantly dangerous machinery: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313; Barrett v Steel Products co Pty Ltd [1962] NSWR 981, Nash v High Duty Alloys Limited [1947] KB 377 and Shedlezki v Bronte Bakery Pty Limited (1972) 72 SR NSW 378. 9. Thus, it is open to this court to find the first respondent's cause of action against the appellant in negligence has been made out." 60 The trial judge concluded that there was no negligence, expressing his reasons thus: " As to negligence The defendant owed a duty of care to the plaintiff, but that duty was not the same duty it would have owed if he had been the defendant's employer. It had no part in setting up or devising the system of work involved in fixing the fault in the machine. It must follow that its duty of care to the plaintiff did not extend to the repair system set up by the plaintiff and it was under no duty to warn the plaintiff about the dangers posed to him by his adopting the system which he adopted. The plaintiff was someone who was appropriately qualified to repair the fault in the machine, was familiar with the machine and was aware that it had no inbuilt equipment to enable testing of roller speeds. He alone determined to test it by using the hand held tachometer. The danger of doing so must have been as apparent to him as it may have been to Mr Whitbread. In my opinion, Mr Whitbread was entitled to rely on the plaintiff's expertise and the defendant had no obligation to interfere with or advise upon the methods devised by the plaintiff. I find that the defendant was not in breach of any duty of care to the plaintiff and accordingly the claim against it for negligence fails." (Red, 32E-K) 61 I would adopt the trial judge's reasoning on this issue. It is true that by leaving the machine unfenced, the first respondent was in effect invited to carry out the envisaged task without taking the precautions which the first respondent concedes were available, namely carrying out the task in an alternative way which this experienced expert could have done. In those circumstances, I do not consider that any duty of care to the extent it existed, was breached by the appellant so as to give rise to any action in negligence. Negligence by the second respondent employer? 62 Here the relationship between the first respondent and the second respondent was that of employee and employer. There is no issue that the second respondent owed a duty of care to the first respondent. Nor is there any issue that the content of the duty is to exercise reasonable care for the safety of an employee or, alternatively, not to unreasonably expose an employee to a risk of injury. I agree with the second respondent's submission that the obligation of the employer is to act reasonably, but so that the employer is not an insurer of workplace safety. 63 As was said recently by Gleeson CJ in State of New South Wales v Lepore (2003) 77 ALJR 558 at [22]: "In the context of employment, for example, a duty to take reasonable care for the safety of workers cannot be discharged by delegation; but delegation does not transform it into a duty to keep workers free from all harm. A duty to see that reasonable care is taken for the safety of workers is different from a duty to preserve them from harm. Some confusion may result from describing it as a duty to "ensure" that reasonable care is taken for the safety of workers, which may give rise to the misconception that the responsibility of an employer is absolute." 64 The trial judge's conclusions are to be found at Red, 33 to 34 and were to the effect that the second respondent, whilst it owed the first respondent a duty of care, was not in breach of its duties for two reasons: "(a) because the first respondent decided how he would carry out his work and the employer would have provided him with any necessary equipment or agreed that he not go to the job at all; in other words it was the first respondent's own decision to carry out the work and therefore his employer was not liable; and (b) there was no breach in failing to provide him with a reasonably practical alternative to performing the work because the second respondent was entitled to rely upon the appellant complying with the absolute duty set out in Section 27 of the Act." 65 The appellant attacks this reasoning on the basis that the situation is one where the second respondent sent the first respondent out to the appellant's site without any real knowledge or understanding of what work was to be performed by him, leaving it up the first respondent as to how he would perform the work. It undertook no inquiry to determine whether or not the work involved exposure to potentially dangerous equipment or equipment which was potentially unguarded. 66 However, the difficulty with that reasoning is that the evidence shows that the first respondent went to the site the day before and was well aware of what the work to be performed entailed, finding the guard already removed as it was. Moreover, the second respondent had no expertise outside that of the first respondent who, as the second respondent reasonably assumed, was well able to assess the risks. Indeed had the employer wanted to check for whether or not a particular task of this kind was risky, it would have turned to the employee himself. 67 Indeed the first respondent was an electrical engineer with thirty years of experience (Black, 10H, 37D-K, 45D, 62B). At the time of the accident, he had been working for his employer for ten years (Black, 62F). This job on which he was injured was regarded as a simple routine commissioning job which he had carried out many times before (Black, 37R-X, 38D-J, 39G, 39X, 62E-M, 62S-Y). The hand-held tachometer was a normal tool used by him in his work and he had never seen such an instrument attached to a rod, as was suggested to him (Black, 43E-Q, 44B-N, 47P-V, 63B-C, 63O-Q, 64D). Significantly, Professor Frost in his report (Blue, 225-231) did not suggest any alternative piece of equipment to the tachometer. Out of a workforce of approximately 1,500, the first respondent was part of a specialised group of service engineers numbering between 40 and 50 (Black, 95E-J). 68 Against that background, I do not consider it was unreasonable for the second respondent to send the first respondent as a highly skilled and experienced specialist to carry out that routine commissioning job which he had carried out many times over a period of ten years. It was not reasonably foreseeable that there would be a particular problem with this machine in relation to access. Nor was it reasonably foreseeable that, rather than communicate this problem to the second respondent, the first respondent would of his own volition engage in an obviously hazardous system of work where there was an alternative, albeit it may have been less convenient. Nor was it reasonably foreseeable that the appellant would remove the guard on the machine before the first respondent's arrival, or that the first respondent would not report back to the second respondent that that had occurred before undertaking the work. 69 It could not be demonstrated that it would have been a reasonable response to the appellant's work order to send somebody else out to inspect the appellant's premises and the machine, rather than the first respondent who was the person in the second respondent's organisation with the most expertise in this sort of work. Nor has it been demonstrated why it would be a reasonable response on the employer's part to include a warning or the provision of different equipment such as a modified form of tachometer. 70 A similar situation was examined in Twynam Pastoral Company Pty Limited v Bennett [2002] NSWCA 319 at [74]-[82]. There the Court of Appeal took into account the great experience of the employee which far exceeded that of the employer [80-81] and also took into account the superior knowledge of the occupier concerning the hazards involved in the employee carrying out the work. In this case the appellant was in a similar position when it removed the guard on the machine before the first respondent commenced work on it. 71 The trial judge's approach to the liability of the second respondent was correct in principle, recognising as it did the great experience of the employee and the fact that the task, though presenting the difficulty it did, should have been comfortably within his competence; see O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 and more recently Van der Sluice v Display Craft Pty Limited (2002) NSWCA 404. 72 Excessive emphasis on the employer's duty as "onerous" and as "non-delegable" should not be allowed to obscure the fundamental requirement that "a trial judge should not approach the issue of negligence on the basis of some perceived principle that there was a heavy obligation on the part of the employer to protect the worker … the employer's duty is to take reasonable care for the safety of its employees and that what is reasonable is a question of fact to be judged according to the standards of the time"; Liftronic Pty Ltd v Unver (2001) 179 ALR 321 at [37-38] per McHugh J commenting on Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301. Conclusion 73 The second respondent was not liable in negligence to the first respondent. Section 151Z(2) of the Workers' Compensation Act 1987 74 It follows from the foregoing that s151Z of the Workers' Compensation Act 1987 is not applicable as the appellant is not successful in that part of its appeal as is directed against the second respondent. Damages 75 On damages, the attack is first on the global sum of $90,000 for loss of future earning capacity. 76 The findings upon which this figure is based are (a) the first respondent's age at the date of judgment was 63 ¼ years. (b) the trial judge found he would probably have worked to age 70 (Red, 37E). This finding in (b) above was clearly, open on the evidence (Black, 33F-Q); including his health and fitness (Black, 13B, 13I, 29O); and his value as an electronics engineer (Black, 33F). 77 The trial judge found that the first respondent would not be able to continue working for longer than three years (Red, 37C). This finding too was open (Black, 28M0 (Black, 32N-R) and Dr Connolly (Blue, 86X and 87J-L). 78 Although the trial judge did not do other than award a global figure, the first respondent translates these findings as follows: $870.00 net loss per week. No loss for 3 years leaves 3.75 years of loss to age 70. 3% multiplier for 3.75 years is 185.0. $870 x 185.0 is $159,840.00, deferred 3 years x 0.915) is $146,253.00 less 15% [for vicissitudes] is $124,315.00. 79 I consider that, allowing for the possibility of some residual capacity, the trial judge's assessment of $90,000.00 was not such as should be disturbed on appeal. 80 So far as general damages are concerned, the first respondent's counsel at trial claimed only $100,000 whereas the trial judge assessed general damages at $150,000. 81 The first respondent was aged 58 1/3 years at the date of injury on 7 April 1998. 82 The trial judge analysed the issues for general damages at Red, 35E-36N. He found the following matters as relevant: · Traumatic amputation of right thumb (Black, 25J) · Other fingers flat, "a bloody piece of meat" (Black, 25K) · Four operations (thumb reattached, fingers wired) (Black, 81-87) · Pain "unbelievable" (Black, 26M) · Pain "uninterruptible" (Black, 26R) · Could not use right hand for 4-6 months (Black, 26U) · Disfigurement (Black, 30T-31G) · Candidate for right wrist fusion (Black, 32N-R) The first respondent has 18 years of life remaining. 83 I confess to finding the figure of $150,000 in these circumstances, clearly very high especially as against the $100,000 originally sought. Factors ranged against that award are as follows (taken from the appellant's written submissions): "The award for general damages exceeded that submitted by the first respondent's counsel by 50%. Whilst it is true that the injury was serious and there has been an effective loss of use of part of the right hand and forearm the first respondent has been able to return to work though he was not able to do much for about four months (Black, 26V, 27J-L). He needed some help around the house (Black, 27R-Z). He complained of ongoing weakness which was really not an issue (Black, 28I-M). The first respondent returned to skiing albeit with some inability to use his right pole (Black, 29S-T) and in the couple of years since his last operation until the trial he had coped better at work (Black, 29X-30J). He is able to drive a car (Black 30P-R). His ability to hold tools and to write has been impaired and to use a computer (Black, 31H-U) and presently his wrist was still weak (Black, 32N-Q). He said he would continue at work (Black, 33G-J). He was not concerned about scarring (Black, 33V-34B). No suggestion had been made by his employer that he should retire (Black, 61W-X). On the evidence indicated the appropriate award for general damages was in the range of $80,000 to $100,000. The amount awarded was so far out of the range as to require appellate intervention." CONCLUSION 84 While the figure for general damages is clearly at the outer end of what could be justified, the appalling nature of the original damage should not be masked by the first respondent's stoicism and tenacity in achieving recovery. In all the circumstances I would not disturb the trial judge's conclusion on that matter either, given the proper constraints on appellate intervention in a matter of discretion. ORDERS 85 I consider that orders should be made as follows: (1) Appeal and cross-appeal dismissed. (2) Appellant to pay the costs of the first and second respondents. 86 McCOLL JA: I agree with Santow JA. 87 FOSTER AJA: I agree with Santow JA. ********** Last Modified: 11/24/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.