New South Wales Court of Appeal CITATION: Suresh v Jacon Industries Pty Ltd [2005] NSWCA 202 HEARING DATE(S): 23 May 2005 JUDGMENT DATE: 22 June 2005 JUDGMENT OF: Mason P at 1; Santow JA at 2; Basten JA at 3 DECISION: (1) Appeal allowed and judgment of District Court set aside; (2) In place of the judgment below, (a) enter judgment for the plaintiff against the defendant; and (b) order the defendant to pay the plaintiff's costs; (3) Remit the matter to the District Court for assessment of damages payable to the plaintiff without reduction on account of contributory negligence of the deceased; (4) Order the Respondent to pay the Appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if qualified. CATCHWORDS: Negligence - employer's duty of care to employee - hazardous task - failure to take reasonable steps to provide safe system of work - failure to provide sufficient instruction in relation to the extent and nature of the hazards involved - Contributory negligence - requirement of some level of understanding of the dangers involved. (ND) Compensation to Relatives Act 1897 (NSW) LEGISLATION CITED: Factories, Shops and Industries Act 1962 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 Ghunaim v Bart [2004] NSWCA 28 CASES CITED: Nominal Defendant v Roland-Smith [2003] NSWCA 65 Sungravure Pty Ltd v Meani (1963-64) 110 CLR 24 Kumada Suresh (Appellant) PARTIES: Jacon Industries Pty Ltd (Respondent) FILE NUMBER(S): CA 40100/04 R T McKeand QC, D W Elliott (Appellant) COUNSEL: D J Hooke (Respondent) W D Hunt & Associates (Appellant) SOLICITORS: Nevill & Edwards (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 3677/00 LOWER COURT JUDICIAL OFFICER: O'Reilly DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40100/04 DC 3677/00 MASON P SANTOW JA BASTEN JA 22 June 2005 KUMADA SURESH v JACON INDUSTRIES PTY LTD This is an appeal from a decision of the District Court which held that Jacon Industries Pty Ltd (the employer) did not breach the duty of care it owed to an employee who was killed when the metal rod he was turning on a lathe, distorted at high speed and inflicted fatal injuries on the employee. The issues for determination in the Court of Appeal include: (i) whether the employer breached its duty of care; and (ii) whether the employee was contributorily negligent. Held as to (i): Per Basten JA (Mason P and Santow JA agreeing): 1. The use of the lathe at 600rpm to machine a rod which did not fit as snugly as it might have within the bush and which extended for some 880mm, unsupported, beyond the headstock, was an essentially hazardous task and known by the employer to be so. 2. The employer failed to take reasonable steps to provide a safe system of work by failing to give the deceased sufficient instruction to allow him to appreciate the extent and nature of the hazards involved in machining bar stock with a significant degree of extrusion from the headstock and the means of avoiding them. Held as to (ii): Per Basten JA (Mason P and Santow JA agreeing): 1. Where a competent and generally careful employee has adopted a practice which involved a hazard not shown to be within his training or experience and about which it was the employer's duty to warn, there will need to be additional features to justify a finding of a significant level of contributory negligence. 2. The failure of the deceased to cut the rod to the appropriate length and to machine a new bush, could not amount to contributory negligence in the absence of a finding that a trained machinist would have some level of understanding of the dangers involved. 3. The failure of the deceased to apply the emergency stop button before walking to the rear of the lathe did not demonstrate an unacceptable lack of care for his own safety, in circumstances where the deceased, had, not unreasonably, failed to anticipate an emergency which required the machine to be stopped immediately. ORDERS (1) Appeal allowed and judgment of District Court set aside. (2) In place of the judgment below – (a) enter judgment for the plaintiff against the defendant; and (b) order the defendant to pay the plaintiff's costs. (3) Remit the matter to the District Court for assessment of damages payable to the plaintiff without reduction on account of contributory negligence of the deceased. (4) Order the Respondent to pay the Appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if qualified. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40100/04 DC 3677/00 MASON P SANTOW JA BASTEN JA 22 June 2005 KUMADA SURESH v JACON INDUSTRIES PTY LTD Judgment 1 MASON P: I agree with Basten JA. 2 SANTOW JA: I agree with Basten JA. 3 BASTEN JA: The husband of the Appellant in these proceedings, Suresh Purushotham, was employed as a machinist (first class) by the Respondent company at premises in Egerton Street, Silverwater. On Tuesday, 30 December 1997, he suffered a fatal accident whilst operating a lathe at the factory. 4 By proceedings commenced on 5 February 2002 in the District Court, the present Appellant, Mrs Kumada Suresh the widow of the deceased, sought damages against the Defendant pursuant to the Compensation to Relatives Act 1897 (NSW) on behalf of herself and her daughter. Her entitlement to compensation depended upon establishing negligence on the part of the Respondent. She was unsuccessful in the District Court and now appeals against the judgment and orders of that Court. Background 5 The injury suffered by the deceased was sudden and catastrophic. Although no one witnessed the accident directly, the immediate cause of death is not in doubt. On the day in question, the deceased was operating a machine known as a "computerised numerical control metal turning lathe", also referred to as a Mori Seiki SL-4 lathe. It was referred to colloquially as the CNC lathe, a name which will be adopted below. 6 The CNC lathe was largely enclosed in a metal casing, but the one inch metal rod (referred to variously as "the rod", "the bar" and the "stock bar") the end of which was being threaded at the time of the accident, extended approximately 886mm beyond the end of the CNC lathe, through a circular metal grip known as a cast iron spacing bush ("the bush"). The bush was located at a point described as "the outboard end of the headstock assembly". The stock bar being threaded was clamped in the spindle of the lathe which, in accordance with a speed fixed by the operator, rotated at 600 rpm. 7 The stock bar extending beyond the outboard end of the headstock passed through a fibreglass headstock guard, which was bolted at one end to the casing of the headstock and fully enclosed the outboard end of the headstock. The guard had a circular hole which allowed the stock bar being machined to pass through the guard into the headstock and thus through the machine to the operating area where the die which was used to thread the end of the rod was located. The die was held in a unit called the "tool post". 8 If machining was required towards the middle of a long rod, there was a further section of the lathe known as the "tail stock". Like the headstock, a function of the tailstock was to hold the rod steady so that, inside the spindle, it spun truly along its centreline. The tailstock was not being used in the present case, because the threading was being undertaken at the end of the rod. 9 The importance of holding the rod firmly so that it spun along its centreline was demonstrated in unequivocal fashion in the present case. Where one end of the rod was unsupported, and was spinning at high speed, any deviation from the centreline would have a tendency to cause the unsupported end to bend: once it started to bend, the tendency would be rapidly accentuated, so that the unsupported end would bend until it revolved like a propeller blade. That is precisely what happened in the present case. After the accident, the rod, extending from the headstock, was bent at almost 90° to the centreline of rotation. 10 Once the rod started to move away from the centreline, it would quickly come into contact with the fibreglass headstock guard. That happened in the present case, the guard being knocked off the headstock and thrown several metres across the factory floor. It seems likely that it was the noise caused by this event which induced the deceased to move from a position near the operating tool post at the centre of the lathe towards the end of the lathe level with the headstock. Whether a thin metal rod rotating at 600 rpm is visible to the naked eye does not appear from the evidence: however, one may infer that it was not visible, or at least was not seen by the deceased, who was killed instantly when the rotating bar hit him on the head. 11 At some point in time, the force of the spinning rod caused the lathe to move several centimetres across the concrete floor of the factory. A photograph tendered at trial showed the extent to which the footing had apparently moved, as a result of the force being exerted by the spinning rod. However, precisely when that movement occurred is not clear. The rod continued to spin for some short time after the accident. 12 The only other person working in the factory at the time was another machinist, Guan Min Chen. In a record of interview undertaken by an inspector from the Workcover Authority of New South Wales, Mr Chen described his recollection of the accident. At the time, approximately 2pm on 30 December 1997, he was working with a power hacksaw. He described the incident as follows: "When I was working on the saw, I heard a loud noise bang. The noise came from behind me. I was feeling that the noise came from the machine behind me. I saw this CNC machine trembling. I didn't see anybody there. And I began to rush that machine passing a boring machine and without delay I switch off the emergency power. Then I turn my head and I saw him lying on the ground." 13 In relation to the cause of the accident, the Appellant tendered before the trial judge copies of the various statements and reports obtained in the cause of the investigation, together with a report by Mr H.L. Burn of H. L. Burn and Associates, consulting engineers, obtained by the solicitors for the Appellant. The only witnesses called to give evidence at the trial were Mr Burn and the senior inspector from the Workcover Authority, Mr Terry Fouques. Amongst the statements included in the evidence were records of interviews with Eric Martin Rutten, the managing director at the time of the Respondent company and Michael Varga, who was at that time the machine shop supervisor. Aspects of the evidence of each of these persons was relevant to the question of liability. The liability issue identified 14 The first question to consider in addressing the issue of liability is the cause of the steel stock bar spinning out of its centreline, which in turn caused it to bend and thus achieve its fatal effect. It was common ground that there were two factors at work, which in combination had the relevant effect and may, individually, each have been sufficient to cause the effect. 15 The first factor was the length of the stock bar. In circumstances which will be referred to below, at the time of the accident the deceased was machining the ninth stock bar in a series. In fact, the job required him to machine only eight rods. By the time he came to the ninth, he had in fact successfully machined eight rods, each of a length of 1925 mm, or just under two metres. However, as was apparent from the photographs taken of the shelves on which the finished rods were placed, one was concealed behind a larger metal rod or cylinder and thus obscured. It seems likely that, if he had counted the visible rods, the deceased may have thought he had only done seven. Alternatively, he may have seen the ninth rod untouched and assumed that he was required to machine that as well to make up the requisite number. As he was described as trained, experienced and careful, it is likely that his mistake resulted from a combination of the two possible explanations. In any event, the ninth rod was 2350mm long, or almost exactly 450mm longer than the other eight bars. The result was that it extended almost twice as far beyond the headstock as the other bars. The greater unsupported length would, as a matter of probability, have resulted in deflection from the centreline, when spinning at 600 rpm, so as to cause the bar to bend. 16 The second cause of the bending was that the bush, as fitted to the headstock, did not provide a tight grip on the steel rod. According to Mr Fouques, the rod was approximately 3mm thinner than the hole in the bush and, in addition, the bush was worn, giving an overall "clearance" of 6.13mm. Mr Fouques further noted that the part of the rod which passed through the bush had been taped with masking tape to decrease the clearance. However, the softness of the masking tape would undoubtedly allowed some level of vibration for a rod spinning at 600 rpm. In his report, Mr Burn demonstrated that, spinning at that speed, it was reasonable to assume that "a shaft about 800mm long would fail if subjected to any minor form of vibration". He further concluded that "the wrapping of the loose running shaft is extremely dangerous and was the source of the initiating vibration leading to the accident". 17 Mr Burn was cross-examined in relation to these observations and gave the following evidence. "Q. Insofar as the root cause of this accident is concerned, Mr Burn, can I take it that we are all in agreement that had there been a bush machined to the diameter of the bar in use by Mr Suresh when he was turning even this extended rod the accident would not have occurred? A. I think it is more than likely it would not have occurred but I'm not satisfied it would not have occurred. Q. Had the bar been the same length as the other bars that have been turned and in use or been turned in the bush which was in use, the accident would not have occurred, would it? A. As I understand, some six bars had already been turned without the bush, and the accident hadn't happened on those six bars. Q. Indeed, from your analysis of physics, in the course of preparing your reports, Mr Burn, you concluded, didn't you, that had the bar been cut to the same length as the other bars which had been turned, the accident would not have occurred? A. Probably would not have occurred, no. Q. You also calculated, didn't you, Mr Burn, on your analysis of physics, that had the bush been machined to the correct size for the bar, even the extended bar would not have reached its critical speed in the machine, causing the deformation and the accident? A. That's probably the case, yes." 18 Whether the effect of Mr Burn's evidence was that correction of either defect in the process would have been likely to avoid the accident, is not entirely clear. He was not asked to address specifically the question whether a bush which provided a reasonably snug fit around the bar would nevertheless have permitted some minor vibration, sufficient to cause the bar to fail. It is possible that he would not have been able to give a firm answer to such a question. 19 In any event, the Respondent company, in resisting a finding of liability, relied upon three considerations. (1) The job instructions required the cutting and threading of eight rods: the ninth rod was not part of the requirements. (2) Even if the ninth rod could have been seen as part of the employer's direction, the rod was 400mm too long and should have been cut before being placed in the lathe, as occurred with the other eight rods: it was part of the deceased's job to cut the rod. (3) In order to use the CNC lathe properly, it was necessary to fit a bush of the correct size in the headstock: it was part of the deceased's work to machine a bush to the correct size and replace the inappropriate bush in the headstock of the lathe. It was also part of the Respondent company's case that the deceased was trained and experienced, was employed as a machinist, first class, and was known to be a careful worker. Accordingly, the employer was entitled to rely upon him to understand the steps required to complete what was a relatively straightforward job, without a supervisor looking over his shoulder. He needed neither detailed instructions as to the manner in which the job was to be performed, nor ongoing supervision. 20 The case for the Appellant (at least by the time of the appeal) was that, whilst the deceased was indeed an experienced, competent and careful machinist, the work was known to be hazardous and the nature of the hazard extended beyond the reasonable limits of the deceased's expertise. It was the responsibility of the employer to put in place a reasonably safe system of work to cater for known hazards. 21 As may be seen from the respective positions, a proper assessment of the case involves both general considerations and specific circumstances. It is appropriate to commence with the general considerations, as the specific circumstances must be fitted within the general context in order to appreciate the causative effect of the different factors in relation to the accident. Evidence of Respondent's officers 22 With the knowledge of the accident itself and the evidence of Mr Burn, it is possible to understand, with hindsight, the risk involved in the procedure adopted with the CNC lathe on the day in question. 23 In relation to the extrusion of the rod beyond the headstock, the statements of both the supervisor, Mr Varga, and the managing director, Mr Rutten, contain matters relied on by the Appellant. As might be expected, their statements were equivocal or ambiguous in some respects and, as neither gave oral testimony at the trial, difficulties remain in assessing their evidence. 24 The more specific evidence was given by Mr Varga. In relation to the hazard involved in the present instance, he answered a number of questions from the Workcover investigator. "Q27 How often does Jacon Industries Pty Ltd receive jobs of making tie rods of excessive length or over two metres? A27 Nothing above two metres. (Michael [Varga] pointed out that the order on Drawing no. 1 was for 1925mm. Q28 Are you aware that a material protruding from the end of the spindle past the guard of the CNC metal-turning lathe is a hazard? A28 Yes, it is a hazard. I've learned from the time I've been introduced on working on lathes that you do not have bars protruding past the end of the spindle or the guard without a bar feeder or a bar support. Q29 What equipment on site does Jacon Industries Pty Ltd have for guarding or supporting the protruding length at the end of the spindle past the guard of the CNC metal-turning lathe? A29 We don't have one for the CNC but we have one for the turret lathe. For the CNC, we normally bush the end of the spindle to suit the particular bar. Q30 What system of work was in place for the safe operation of the CNC metal-turning lathe? A30 Safety was always my concern. But I felt that Suresh was competent enough as a matured tradesman. So, for me, to watch over his shoulders I didn't think was necessary as they knew the safety aspect and the demands towards safety. … Q31 Is there anything you wish to add regarding this matter? A31 In my opinion, although he had taped around the bar to make up for the slack in the bush; which was still a bad practice but it would still be safe because it was only a minute difference between the bar and the bore of the bush. It would have been safe if it weren't for the extra length of the bar which was protruding." 25 The first inference which can be drawn from this record of interview, with some confidence, is that Mr Varga was in little doubt that an unsupported rod of any length protruding beyond the end of the spindle was a hazard. It may also be inferred that, in relation to the CNC lathe particularly, he would have treated anything beyond two metres as hazardous. Further, as the job in question was within about 4% of the limit, that evidence invites a question as to the nature of any instruction given to the deceased with respect to the particular job. 26 The instruction apparently included a "written job list" as well as "the necessary drawings of the job". The job list had been lost after the incident, but there was no suggestion that it contained any detailed instructions. The drawing was in evidence and simply identified the size of steel rod, the length to which it should be cut and the detail of the threading. As to the instructions given to the deceased regarding the particular job, Mr Varga stated: "The only instruction that I've given him, first of all, I've given him an option to do one end of the bar on the turret lathe with a [die] head with chasers; the other end, I'm not sure whether we'll have the chasers or not. So, you can do that on the CNC's if we don't have any chasers. And if he does happen to use the CNC, I specifically ask him to make sure to put a bush in the speck of the spindle and to be careful. And I always tell him to be careful. It's just something that I've been practising for the last 20 years. The reason for the bush was to support the bar to be concentric and it's important you bush it because the spindle is larger than the bar and will obviously wobble. Also, Suresh had the bars cut to length other than the one that he had the accident with prior to the 24 December. And I can tell from the finished of the both ends were done on the CNC and that he didn't use the turret lathe." 27 It was apparently common ground that the "chasers" were not available at the factory and it appears to have been accepted that, accordingly, the turret lathe was not a realistic option. In relation to the CNC lathe the instruction appears to have been limited to putting a bush in the speck of the spindle and to be careful. There is nothing specific in this direction about the need for particular care with the fitting of the bush, nor was any specific concern raised about the length of the extruding rod. Indeed the suggestion was that Mr Varga had given similar general instructions "to be careful" at all times over some 20 years. Even allowing for an exaggerative flourish, that would have covered the 12 months during which the deceased had worked at the factory. 28 Mr Rutten was also asked questions in relation to the circumstances of the accident by the Workcover Authority inspector. His evidence excluded the possibility that the turret lathe could have been used for this job. "Q32 Why was the turret lathe not used for the manufacture of the tie rods in question? A32 It is a new project and it was not a large quantity and therefore we did not have chasers for the die head on the turret lathe. If this particular job is an on-going repeatable job then we would purchase the relevant chasers for the die heads if they are available, since it is more difficult to purchase chasers for these die heads." 29 In relation to the CNC lathe, he was asked a specific question in relation to the deceased. "Q28 What training and instruction had the company provided to Purushotham Suresh in the safe operation of the CNC Metal Turning Lathe? A28 I would say that from a company's point of view we would have kept a close watch on Suresh's performance, ability and carefulness. So that [we] were confident that he can use the machine safely." He was also asked: "Q36 What equipment on site does Jacon Industries Pty Ltd have for guarding or supporting the protruding length of a material from the headstock of the CNC Metal Turning Lathe? A36 There should be a stand to support a rod of excessive length, and there are bushes to support any material that enters the headstock." 30 At one point in his report, Mr Fouques stated: "The CNC lathe was provided with the facilities to support the work piece at a distance away from the machine chuck to prevent excessive headstock protrusion of the work piece through the use of the tail stock and live centre." This comment by Mr Fouques appears to be based on a misapprehension, in so far as the tailstock was at the other end of the lathe from the headstock. It was common ground in this Court that there was no "stand" of the kind suggested by Mr Rutten to support the excessive length of the rod. 31 Mr Rutten was also asked about safety procedures. "Q39 Does Jacon Industries Pty Ltd have an occupational health and safety policy? A39 We have working on safety procedures on all aspects of our manufacturing since around January 1996. They haven't been completed and therefore not issued yet. Q40 What changes have occurred in the operation of the CNC Metal Turning Lathe after the accident of Purushotham Suresh? A40 We have to look at making some standard safety precautions in conjunction with some information to be obtained from the distributor." These answers were given on 13 January 1998. The company could hardly be criticised in relation to the lack of response to the accident, which had occurred less than two weeks earlier. However, the answer about safety policy generally is more troubling. Further, Mr Rutten was asked whether he was aware of s 31(1) of the Factories, Shops and Industries Act 1962. His answer was: "I am not sure." The question and answer continued: "Q42 Section 31 of the Factories, Shops and Industries Act 1962 states that 'in any factory, any part of a stock-bar which projects beyond the head-stock of a lathe shall be securely fenced unless it is in such a position as to be as safe to every person employed in the factory as it would be if securely fenced' are you aware of this legislative requirement? A42 No. But I would like to be aware of this." 32 In relation to the terms of s 31(1), it was common ground in this Court that the purpose of the provision was to fence the protruding part of the stock bar so that an employee would not come into contact with it, which was the purpose of the headstock guard affixed to the CNC lathe. It was not part of the statutory purpose to prevent the stock bar escaping from its proper position and thus causing harm. (Support for this conclusion may be found in Mummery v Irvings Pty Ltd (1956) 96 CLR 99, and English authority to similar effect to which the Court was referred.) Accordingly, it was accepted that compliance with s 31(1) would not have prevented the accident. Section 31(1) thus played no part in the argument before the Court, except to the extent that it was a statutory requirement with respect to the operation of the lathe with which Mr Rutten was not conversant. 33 The following inferences should, in my view, be drawn from this material. (1) the supervisor recognised that the work was attended by a specific hazard relating to the length of the bars, which was near the limit of that which would be undertaken at the factory; (2) he gave no specific instruction in relation to the hazard involved in using a rod with a significant extrusion; (3) he gave no thought, let alone instruction, in relation to the need for special care with the fitting of the bush in relation to such a job; (4) he gave no specific instruction with respect to any risk that might arise from the combination of a loose fitting bush and a lengthy extrusion. Evidence as to events 34 In order to determine the issue of liability, it is convenient to consider each stage at which the accident might have been averted. The first stage may be identified as the collection of the longer rod and placement of the rod in the lathe. 35 This stage of inquiry gives rise to three separate questions: (a) How did the deceased come to be turning the ninth rod, when only eight were required? (b) Why was the ninth rod accessible to the deceased? (c) Why did the deceased not realise that the ninth rod was unduly long? None of these questions is susceptible of a ready answer, although the immediate answer to the first question was more apparent than the others. The photographs of the racks on which the turned rods were stored shows that seven only were apparent, the eighth being concealed behind a large rod on the rack. How that came about is unclear, although the more likely inference is that it was placed by the deceased. Unfortunately, no attention appears to have been given to when it may have been placed there. The evidence of Mr Varga was that he had ordered a length of steel bar and it had been cut at the factory. He said that "it was cut prior to Christmas". He did not say by whom it was cut. He did add, however: "I could count for the length of the components because the way I ordered the material having a longer bar end left over after the required number of pieces being cut." Whether one or more of the rods had been machined at an earlier time is simply not known. It is at least possible that they were machined before Christmas, but that when the deceased came to check the work later, he found that the number was one short and that there was an extra length of material. 36 Why the extra length of material was with the cut rods is also unknown. Indeed, it was assumed by the parties that only eight rods were required, although the only evidence for that proposition appears to be the written report of the Workcover Authority inspector, that document does not provide a source for that information. It is possible that Mr Varga had ordered a longer length than necessary, in case one piece was damaged, but that is mere speculation. If that were the reason, it would then be unclear as to why nine pieces were not cut to length. No more can be made of this issue. 37 The next question is why the deceased did not notice (if that were the case) that the last rod was longer than the others. The trial judge noted that Mr Burn had been asked a number of questions concerning the difference between the length of the ninth rod and the other rods. In particular, his Honour referred to the following exchange: "Q. A differential of 15 inches between rods apparently lying on the same shelf is something which would be blindingly obvious to the naked eye of a skilled fitter and machinist, isn't it? A. If there were other rods on the shelf at the time, yes." He was then asked a number of questions in an attempt to establish such a comparison would have been available. The trial judge then noted: "His [Mr Burn's] attention having been drawn later to photograph 16 in colour, he agreed that there were other rods of different diameters and length (to permit comparison)." 38 With respect, this conclusion does not accurately reflect Mr Burn's position: in fact the evidence went nowhere. Mr Burn did not accept that the ninth rod was taken from a shelf on which there were other rods, forming part of the same job. Nor was it a fact within his knowledge. All that was before the Court was the evidence as to the layout of the factory, to be derived from the photographs. An inference may have been open that rods waiting to be machined were somewhere on the racks used to hold the machined rods. However, no-one knows if that is correct, because there was no evidence of any rods waiting to be machined at the time of the accident: the last rod was in the lathe. Since, as counsel for the Respondent company pressed upon the Court, this rod was not part of the job lot, it is possible that it was not near the other rods which were to be (and had been) machined. Mr Burn resisted, in cross-examination, drawing any inference as to the comparison which might have been made by eye, because it required assumptions about which he knew nothing. Although the trial judge appears to have been critical of him in this (and other) respects, his caution in this instance appears to have been entirely justifiable. The assumption in the original question was that the rods had been "lying on the same shelf": that assumption was not self-evident, and was not proved, nor in the circumstances was it capable of proof. 39 It is, indeed, pure speculation that the deceased did not realise that the last rod was longer than the others. On the Respondent's approach (as revealed by the cross-examination of Mr Burn) the opposite conclusion is the more likely. Thinking he needed to machine an additional rod to complete the job, he may well have realised that the last rod was longer and intended to cut it to size before machining the second end. If the fact that it was longer would indeed have been "blindingly obvious" to him, that is the likely inference. Further, the fact, assumed by the employer, that the deceased was a skilled first class machinist, whom they intended to promote to leading hand, supports the inference because he would have known that it would be necessary to cut the rod at some stage. However, because his employer accepted that he was not only competent, but careful, it also seems likely that he did not appreciate the risks inherent in machining a rod of that length in the CNC lathe. 40 This conclusion may be reached without reference to the evidence of Mr Burn, of whom the trial judge was critical, and about whose evidence further comment will be required. For present purposes it is sufficient to say that I would draw the following inferences, on the balance of probabilities: (a) The deceased, upon not realising that he had completed the work, because the eighth rod was obscured on the rack, located and placed a ninth rod in the lathe. (b) He would have noticed that the rod was longer than the others and would need to be cut. (c) He may not have realised that fact until he placed the ninth rod in the lathe, in which case he needed to consider whether he should cut it before machining one end, or when he removed it from the lathe in order to turn it around to machine the second end; he chose the latter course. (d) In choosing that course, he was not aware of the extent of the hazard involved in machining a rod extruding by 880mm from the headstock of the lathe, and did not recognize the likely cause of any noise or movement that led him to move to the rear of the lathe. 41 The second stage was the use of an existing bush and fitting masking tape around the rod to hold it firm in the bush. 42 The point in issue with respect to the bush was whether the deceased should have prepared a new bush which fitted more snugly than the one in fact used. Mr Fouques, on examining the scene of the accident, noted that there was "a build up of masking tape wrapped around the bar stock at the point where the bar stock passed through the cast iron spacing bush, the thickness of the tape build up was approximately 3mm." That report, prepared on the day of the accident, made no further observations in relation to the bush. The inspector returned on the following day in order "to release the bar stock from the lathe to ascertain the spindle speed of the machine at the time of the accident". No observation was recorded in relation to the state of the bush. The report in relation to those two visits was signed and dated 2 January 1998. A further report was prepared and signed on 14 January 1998, which included some additional information in relation to the length of the bar and the condition of the bush. At paragraph 9 Mr Fouques stated: "The cast iron spacing bush fitted to the bore at the outboard end of the headstock assembly used to keep the workpiece running true to the centreline of the lathe had worn to an extent that there was a clearance of approximately 3.065mm between the workpiece and the bush, giving an overall clearance of 6.13mm." There was no evidence as to what particular clearance would have been acceptable. 43 Mr Fouques made no comment on the finding that there was masking tape around the rod stock to reduce the clearance. Furthermore, there is no indication as to whether the wearing which was noted on the bush may have been caused by the accident itself or pre-dated the accident. It would appear from the photograph of the bush which was contained in the evidence that the bending of the bar stock caused significant damage to the bush. 44 Mr Rutten said nothing about the bush or the masking tape in his statement, nor was the supervisor, Mr Varga, asked any questions with respect to those matters. However, Mr Varga did volunteer a comment in his statement when asked generally whether there was anything he wished to add: "In my opinion, although he had taped around the bar to make up for the slack in the bush; which was still a bad practice but it would still be safe because it was only a minute difference between the bar and the bore of the bush. It would have been safe if it weren't for the extra length of the bar which was protruding." The form of this statement reads as if it were defensive, albeit in respect of a criticism that had not been expressed. For present purposes, it has significance at two levels. First, Mr Varga was noting a fact, without surprise that it occurred. For this purpose, little turns on the use of the word "practice", but an inference might be drawn that he had seen such conduct in other circumstances. That term was used very shortly after Mr Varga had said: "For the CNC, we normally bush the end of the spindle to suit the particular bar". Secondly, the nature of his comment suggests that this was not a matter about which he would have given a direction to the deceased, had he known of it in advance. He does not suggest, in so many words, that the deceased should have prepared a new bush. 45 There was no other direct evidence in relation to this aspect of the matter. 46 In his recommendations of 14 January 1998 Mr Fouques identified as a second recommendation: "The manufacture and fitting of a correct size cast iron spacing bush to appropriate running fit with the bar stock or workpiece to allow for some support of the bar stock." (BB 74) There was nothing in the oral testimony of Mr Fouques which took the matter any further. 47 Mr Burn stated in his report of 25 May 1999: "The workpiece was prepared by wrapping a section of bar stock with a tape approximately 3mm thick to reduce the clearance between the cast iron bush at the end of the headstock and the workpiece. There were blank bushes available which could have been machined to the correct size and installed simply but were not used." Mr Burn opined that a "correctly machined bush instead of the wrapping" would have prevented the accident. 48 On 5 November 1999, Mr Burn supplied a second report. In that report, he identified the wrapping procedure as "the primary cause of the fatality". 49 In his oral testimony, Mr Burn was asked certain questions and gave the answers set out at [17] above. He agreed that it "would be a simple matter for a fitter and machinist to machine a bush to the correct size for the job" and would take about 10 minutes in another lathe. 50 The trial judge made no findings of fact in relation to any of this material. His only express finding was in relation to a particular of negligence identified as - "(d) failing to provide the deceased with a bush of appropriate dimensions, to hold the bars being worked firmly such that deformation could not and would not occur." In respect of that particular, his Honour noted that "it was the function of the deceased to prepare bushes of appropriate dimensions for the task which he was carrying out". As a result, there was no finding: (a) that the bush was outside any reasonable margin of tolerance for the particular job; (b) that the deceased was advised of, or should have known of, the level of tolerance; (c) that the use of masking tape to reduce a gap was negligent; (d) that the deceased was advised, or should have known, that the use of tape was negligent; (e) that the failure to fit a bush which held the bar stock snugly was a cause of the accident. It will be necessary to return to these questions below. 51 The third stage at which the accident might have been averted was the point at which the deceased realised that there was a problem and sought to investigate, if that is what happened. After the accident, the machine was still operating and Mr Chen gave evidence that his first act was to hit the emergency stop button. If the action of the deceased in moving towards the headstock of the machine was indeed to check an unusual noise or vibration, it is clear that first stopping the machine would have avoided the accident. However, the need to stop the machine depended on three inferences, namely: (a) that the deceased detected a noise or vibration which required attention; (b) that he moved towards the area of the headstock to investigate the noise; and (c) that he concluded that the noise indicated something so serious that it was not appropriate to investigate whilst the machine was still running. None of these inferences were addressed at the trial. That was probably because no specific particular identified the failure to warn the deceased that it was imperative to hit the emergency stop button before investigating any unusual noise was pleaded. Accordingly, this matter is primarily of relevance to the issue of contributory negligence, which the trial judge did not need to consider. Approach of trial judge 52 Against this background, the approach of the trial judge can be shortly summarised. First, his Honour dealt with the history of the matter, including the manner in which the evidence was presented. Before summarising the evidence, he referred to the two reports of Mr Burn and stated: "I will come to the detail of Mr Burn's evidence later, but I can say at the outset that his evidence is rejected in its entirety, except in so far as it is supported by other credible evidence." We were told, and this was common ground, that this remark went to weight rather than admissibility. However, because the trial judge did not identify any specific item of evidence which he expressly accepted, it is difficult to know what credence was given to the evidence of Mr Burn, even when reproduced in the judgment. In parts, his Honour's summary of Mr Burn's evidence was directed to the credibility conclusion, ultimately expressed, namely that one specific aspect "confirms my assessment of Mr Burn as an advocate as distinct from an independent expert". 53 The difficulties with Mr Burn's evidence are heightened by the fact that all of his oral testimony appears to have been taken on the voir dire. Although our attention was not directed to any express ruling in relation to admissibility, we were advised that both of the reports and the oral testimony were admitted as evidence on the trial. Nevertheless, to the extent that the trial judge extracted aspects of his evidence, which did not appear to go to credibility, and without any criticism of the content, it may be inferred that his Honour accepted so much of the reports and testimony as were thus recorded. 54 In addition to setting out parts of the evidence of Mr Fouques and Mr Burn, the trial judge also summarised the record of interview of Mr Varga and gave very brief reference to the interview with Mr Rutten, the managing director. 55 His Honour's specific findings are limited to the response to particulars of negligence. In relation to matters of present relevance, those particulars and the relevant findings may be identified as follows: " (a) failing to ensure that the deceased was properly and adequately qualified to work the subject lathe; As to paragraph (a), the evidence is all one way that the deceased was eminently qualified for the work in question. (b) failing to provide any or any adequate or timely supervision of the deceased in his work at the lathe; As to (b), again the evidence is all one way that supervision of the deceased for the task in question was not required. (c) failing to leave any or any adequate instructions for the deceased; As to (c), there is nothing to suggest the failure to instruct. (d) [both particular (d) and the trial judge's response are set out above at [50].] (e) causing or allowing a practice of working to occur whereby bars being worked with the said lathe were wrapped with tape to increase diameter, rather than providing a bush of smaller diameter to firmly hold a job being worked; (f) failing to warn the deceased of the risks of jobs deforming under high revolution due to movement created by taping of bars being worked. As to (e), there is no evidence to support the statement that there was a practice of wrapping the work piece with tape. All that we know is that this was something that the deceased did on this particular occasion. The same comment applies in respect of particular (f). … (i) causing or allowing the deceased to work a bar of excessive length using the said lathe under high speed in circumstances where such bar was likely to and did deform; (j) causing or allowing the deceased to use the said lathe to work a bar that was too long and that was taped to increase its diameter to allow fixation to the lathe, which circumstances were likely to and did give rise to deformation of the job and injury to the deceased. As to (i), it was the function of the deceased to cut the obviously too long bar before placing it in the machine. As to (j), it was a matter for the experienced operator to cut the bar to an appropriate length and to provide a bush. (k) failing to devise and maintain a safe and proper system of working; (l) exposing the deceased to risk of injury that could reasonably have been avoided; Particular (k) is too general, as is particular (l)." 56 After referring to a number of authorities which supported the proposition that the duty to provide a safe system of work will not extend to "isolated operations of no complexity outside the normal system or simple uncomplicated operations within it" his Honour concluded that the present was "a simple operation well within the competence of the deceased". He continued: "The accident was caused by reason of the excessive length of the bar stock associated with the failure to machine a bush of the appropriate diameter." Conclusions on appeal 57 His Honour's specific findings, noted above, may properly be accepted and, indeed, were not directly challenged in this Court. In other words, there is no doubt that the deceased was well able to machine a bush to an appropriate size and cut the bar stock to an appropriate length. It was also accepted that the machining of the relevant bar stock was a relatively uncomplicated activity for a machinist of the training and experience of the deceased. Finally, it was accepted that the deceased was a person with above-average skills and competence in the relevant area and was reasonably treated by the employer as someone well able to undertake tasks of the kind in question without supervision. However, none of these conclusions addresses the real question in issue. 58 The critical question depends on recognition that the use of the lathe at 600rpm to machine a rod which did not fit as snugly as it might have within the bush and which extended for some 880mm, unsupported, beyond the headstock, was an essentially hazardous task. Further, it was known to be hazardous to the shop supervisor, Mr Varga. The ultimate question is whether the employer failed to take reasonable care in not ensuring that the deceased was aware of the nature of the hazard and the means of reducing it. The fact that the means were all within his competence to effect, does not mean that he appreciated the need to adopt them. 59 There was no finding by the trial judge that the deceased was or should have been aware of the relevant hazards. Nor was there any evidence as to the nature of the training or expectations of machinists in that regard. Accordingly, once the hazard was admitted by Mr Varga, it was a matter for the Respondent company to establish that it took all reasonable steps to draw the nature of the hazard to the deceased's attention and ensure that he understood the means of reducing such hazards to a reasonable level. The company called no evidence at all. The proper inference from the evidence of Mr Rutten and Mr Varga, outlined above at [31] and [24] respectively, is that the deceased was given no warning at all in this regard. 60 No doubt partly in response to the allegation that the deceased was not qualified to work the CNC lathe or work it without supervision, supported in part by Mr Burn's reports, which the trial judge clearly rejected, the Respondent company relied upon the statements of Mr Rutten and Mr Varga as to the competence, experience and care which the employer was satisfied the deceased exhibited. That evidence was, however, potentially double-edged for the employer. Once it was accepted that the deceased did have such qualities, and if it be accepted (as I would accept) that the deceased nevertheless proceeded to use the machine with a less than ideal bush, with too long an extrusion of bar stock and at the speed established, there is an inference that he simply had no understanding of the nature of the hazard he faced. That conclusion is given some further, if limited, support by the fact that when something drew his attention to the area of the headstock, he clearly had no immediate apprehension as to what might be occurring. 61 In these circumstances, I would accept the Appellant's assertion that the employer unreasonably failed to give the deceased sufficient instruction to allow him to appreciate the extent and nature of the hazards involved in machining bar stock with a significant degree of extrusion from the headstock and the means of avoiding them. As a result, the employer failed to take reasonable steps to provide a safe system of work. This conclusion requires that the judgment below be set aside and there be a finding of liability on the part of the employer. Contributory negligence 62 In this circumstance, it is necessary to consider whether the carelessness of the deceased contributed in a relevant respect to the accident. In the last sentence of his judgment, the trial judge stated: "If I am wrong as to my conclusion on primary negligence, I would have assessed the contributory negligence at 50%." 63 The Appellant was critical of this finding. On the one hand, it appears to be a figure plucked out of the air, without supporting reasoning; on the other, one cannot infer the reasoning from what has gone before because one does not know on what basis the assumption of liability of the employer is assumed. These criticisms have substance. 64 The circumstances in which this Court can properly intervene in relation to a finding of contributory negligence were considered in some detail by McColl JA in Ghunaim v Bart [2004] NSWCA 28 at [42]-[54]. That analysis is respectfully adopted, with appropriate regard to the circumstances of the case. As will be noted below, there are two factors which must have been implicit in the trial judge's finding with respect to contributory negligence. The first was the hazardous method of machining the longer rod and the second the failure to use the emergency stop button. 65 In relation to the first factor, the contribution of an employee to his or her injury may vary from a deliberate refusal to follow instructions, through adoption of a practice which was obviously risky, to inadvertence, inattention or misjudgement. However, where a competent and generally careful employee has adopted a practice which involved a hazard not shown to be within his training or experience and about which it was the employer's duty to warn, there will need to be additional features to justify a finding of a significant level of contributory negligence. 66 What happened in the present case was that a foreseeable risk that the rod would deform in fact eventuated. That fact did not by itself cause the accident: the additional necessary step was that the deceased moved into the danger zone and was hit by the spinning rod, acting somewhat like a propeller on an aircraft. However, once it is accepted that the hazard about which the employer should have given a warning was precisely that which the employee did not anticipate, it is not logical to expect the employee to anticipate and avoid the very danger which has been created. Something else must be added to the equation in order to say that the deceased failed to take reasonable care for his own safety. 67 Another possibility is that, even if he were not aware of the hazards attaching to the bush and the over lengthy bar stock, he should still have been expected routinely to take precautions which he did not take, by cutting the bar and machining a new bush. However, to make that judgment requires a finding that a trained machinist would have some level of understanding of the dangers involved. That evidence could undoubtedly have been called by the company, but it did not do so. Mr Fouques, the Workcover inspector, was asked in cross-examination: "Q. The training that his man would have had, would that have involved knowledge of the vibration that clearly occurred in this case with part of the bar sticking out? A. I have no idea. Q. What I want to suggest is that there is nothing in his training, or his academic record that you've seen that would suggest a knowledge or understanding of what happens when a bar such as this is extended, speed builds up and the vibration results in deformity? A. You lost me with your question. If we're talking about how much bar you would hang out from the back of a headstock. When you're training as an apprenticeship you would be told you wouldn't want that to be excessive. His actual – the nuts and bolts of every nitty gritty piece of his training over a period of time, no, I would not have access to that." This material does not, in my view, allow a positive finding that the deceased was careless in this respect. Accordingly, I would not accept, on the basis of the case made out against the Respondent company, that any contributory negligence had been established in this respect. 68 In relation to the second factor, the failure to apply the emergency stop button before walking to the rear of the lathe, reference was made to what had been described as the "agony of the moment" cases, which establish that less care and foresight is to be expected than where there is ample time for reflection and planning. Some of the authorities supporting this principle were discussed by Santow JA in Nominal Defendant v Roland-Smith [2003] NSWCA 65 at [68]. The label may be useful to provide a reminder about the nature of circumstances in consideration, but it does not establish any legal principle, for the reasons clearly expressed by Windeyer J in Sungravure Pty Ltd v Meani (1963-64) 110 CLR 24 at 35-38. A similar point was made by his Honour at 37 in the following terms: "In the press of affairs anywhere a need to act promptly may sometimes lead to something being done, which has unfortunate results, but which is attributable to an error of judgment rather than a blameworthy want of due care." That approach must be applied in relation to the failure to use the emergency stop button in the present case, with due regard to the very limited nature of the evidence as to what precisely attracted the attention of the deceased to the headstock area of the machine. 69 On one view, the deceased would not be likely to have moved to the headstock of the machine whilst it was operating, unless he had some basis for apprehending a problem. Thus, it was put to Mr Burn: "Q. You would accept, wouldn't you … that if one was operating a lathe and one heard a loud noise coming from the moving parts of the machine, and the machine started to hop across the floor, a prudent fitter and machinist would turn the machine off? A. Yes, I would. Q. Certainly a prudent fitter and machinist in those circumstances would turn the machine off before going anywhere near the moving parts of it? A. I would." The reference to hopping across the floor was a reference to the fact, established by the photographs taken after the event, that the machine had moved, according to measurements taken by Mr Fouques. In his report of 14 January 1998, Mr Fouques stated: "The force due to the machine becoming unbalanced as a result of the bent workpiece and the spindle speed of the lathe caused the machine to move across the concrete floor at the right front corner." However, when this movement occurred was not established. What is known is that the machine continued to operate after the death of the deceased, until it was turned off by Mr Chen. It is entirely plausible that it was not the movement of the machine, but the noise of the headstock guard being knocked off that led the deceased to investigate. There is no evidence before the Court as to the size of the hole in the rear of the headstock guard, but it seems likely that the bar stock would only need to be deformed through a few degrees before it came in contact with the headstock guard. If that were the noise which attracted the deceased's attention, it is doubtful that he had any understanding of the hazard which he faced. He presumably did not anticipate an emergency which required the machine to be stopped immediately. That judgment proved fatal, but it was undoubtedly one made quickly in an unexpected situation. In my view it did not demonstrate an unacceptable lack of care for his own safety. Conclusions 70 In my view the following orders should be made: (1) Appeal allowed and judgment of District Court set aside. (2) In place of the judgment below – (a) enter judgment for the plaintiff against the defendant; and (b) order the defendant to pay the plaintiff's costs. (3) Remit the matter to the District Court for assessment of damages payable to the plaintiff without reduction on account of contributory negligence of the deceased. (4) Order the Respondent to pay the Appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if qualified. ********** 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. 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