Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Roche Mining Pty Limited v Graeme Wayne Jeffs [2011] NSWCA 184 Hearing dates: 10 June 2011 Decision date: 06 July 2011 Before: McColl JA at [1], Basten JA at [93], Tobias AJA at [108] Decision: Appeal dismissed with costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: NEGLIGENCE - breach of duty of care - whether mine operator breached duty of care to plaintiff employee of labour hire company - plaintiff fell from steep ladder on dump truck while gaining access to its cabin - ladder too steep and lacking handrail extending to prescribed height in breach of Australian Standards - whether conclusion of breach made with hindsight NEGLIGENCE - breach of duty of care - defect in means of access to cabin of dump truck - design flaw in vehicle manufactured by reputable business - whether mine operator breached duty of care NEGLIGENCE - breach of duty of care - where risk that person in the plaintiff's position could fall from the ladder while climbing - whether reasonable person in position of mine operator would have taken precaution of installing transverse stair access system - relevance of common practice - relevance of Australian Standards - ss 5B, 5C, Civil Liability Act 2002 (NSW) NEGLIGENCE - causation - whether primary judge could conclude as a matter of direct evidence or legitimate inference that installation of transverse stair access system would have prevented or minimised plaintiff's injuries- s 5E, Civil Liability Act 2002 (NSW) APPEAL - "no evidence" point not taken at trial sought to be raised on appeal - interests of justice - whether point if taken at trial would have been fatal to respondent's case Legislation Cited: Civil Liability Act 2002 (NSW) Coalmines Regulation Act 1982 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Davie v New Merton Board Mills Ltd [1959] AC 604 Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113; (2010) 239 FLR 198 Galea v Bagtrans Pty Limited [2010] NSWCA 350 Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 Jeffs v Rio Tinto Limited and Anor [2010] NSWSC 1046 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Kuhl v Financial Services Australia Ltd [2011] HCA 11; (2011) 276 ALR 375 Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867 McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 Measures v McFadyen [1910] HCA 74; (1910) 11 CLR 723 Mercer v Commissioner for Road Transport and Tramways (NSW) [1936] HCA 71; (1936) 56 CLR 580 Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2005] HCA 61; (2005) 205 CLR 254 Pacific Steel Constructions Pty Ltd v Barahona; Jigsaw Property Group Pty Ltd v Barahona [2009] NSWCA 406 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 State of Victoria v Bryar (1970) 44 ALJR 174 Stevens v Brodribb Sawmilling Co Pty Limited [1986] HCA 1; (1986) 160 CLR 16 Strong v Woolworths Limited [2011] HCATrans 131 Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517 Sydney Harbour Trust Commissioners v Wailes [1908] HCA 19; (1908) 5 CLR 879 TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 Varga v Galea [2011] NSWCA 76 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 White v Overland [2001] FCA 1333 Woolworths Limited v Strong [2010] NSWCA 282 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 Texts Cited: Australian Standard 1657 - 1992, Fixed platforms, walkways, stairways and ladders - Design, construction and installation Australian Standard 3868 - 1991, Earth-moving machinery - Design guide for access systems Western Australian Department of Industry and Resources Guideline, "Personnel Access to Heavy Mining Machinery", December 1997 New South Wales Department of Primary Industry, Guideline for Mobile and Transportable Equipment for Use in Mines, March 2002 Category: Principal judgment Parties: Roche Mining Pty Limited - Appellant Graeme Wayne Jeffs - Respondent Representation: MT McCulloch SC and RG Gambi - Appellant ID Roberts SC and D RJ Toomey - Respondent HWL Ebsworth - Appellant Cragg Braye and Thornton - Respondent File Number(s): CA 2009/297888-003 Judgment 1McCOLL JA: Roche Mining Pty Limited ("Roche"), the appellant, appeals from the decision of Hoeben J finding it liable in damages to Graeme Jeffs, the respondent, for injuries he sustained in a workplace accident at the Wambo Coal Mine ("Wambo") in the Hunter Valley on 14 April 2003: Jeffs v Rio Tinto Limited and Anor [2010] NSWSC 1046. 2The accident occurred when the respondent fell approximately 2.5 metres while climbing into a Caterpillar 785B rear dump truck (Cat 785B) - a large piece of plant with a 50 tonne capacity. 3Damstra Mining Services Pty Limited ("Damstra") employed the respondent as a casual employee at the time of the accident. Damstra was a labour hire company which provided skilled employees to Roche. Roche was in charge of the running of Wambo (which was owned by Rio Tinto Limited) and owned the plant and equipment used at the mine, which included the Cat 785B from which the respondent fell. Roche had operated Wambo since about June 2001. 4The primary judge found Roche had breached its duty of care to the respondent essentially because it failed to provide a safe means of access to the cabin of the Cat 785B. He rejected Roche's submission that the respondent had been guilty of contributory negligence. He ordered Roche to pay the respondent $1,205,601.20 in damages. His Honour found Damstra's notional liability to the respondent for the purposes of s 151Z(2) of the Workers Compensation Act 1987 (NSW) was 20 per cent. 5Roche challenges the primary judge's findings of breach of duty and causation. There is no appeal against his Honour's refusal to find the respondent guilty of contributory negligence nor in respect of his determination of Damstra's notional liability or the quantum of damages. Legislative Framework 6The following provisions of the Civil Liability Act 2002 (NSW) (the "CL Act") are relevant: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( 'factual causation'), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability'). ... (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation." 7At the time of the accident s 37 of the Coalmines Regulation Act 1982 (NSW) (the "CR Act") relevantly provided: "37 Functions of managers (1) Subject to any instructions given to the manager of a mine or to another person employed at the mine by: (a) the owner of the mine, ... (excluding instructions which are required under section 52 or 54 to be confirmed in writing and which have not been so confirmed), the manager of a mine: (d) shall have full charge and control of: (i) all persons employed at the mine, and (ii) all operations at the mine, (e) shall enforce the observance, by all persons employed at the mine, of this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder, ... (2) Without limiting the generality of subsection (1), the manager of a mine shall ... (b) ensure that the machinery, apparatus and equipment in use at the mine is maintained in a safe working condition ..." 8"[M]anager", in relation to a mine, was defined to mean "the person appointed or nominated under section 36 as the manager of the mine", and "owner" meant, among others, any person who was the occupier of the mine": s 5, CR Act. There was no evidence as to who was the manager of the mine. 9That being said, the respondent did not advance a case of breach of statutory duty. Rather, the respondent invoked s 37 as informing the content of Roche's duty of care. Statement of the case 10The following facts were uncontroversial and can be taken from the primary judgment. 11In 1998 the respondent commenced work as a plant operator. He became qualified to drive all types of heavy equipment used in civil engineering work. On 9 December 2002 the respondent commenced working at Wambo. Before commencing working at Wambo Damstra gave him induction training consisting of basic occupational health and safety training associated with working in coalmines. Roche gave him further induction training and passed him as qualified to operate the Komatsu 830E Dump Truck, a D11 Dozer and a 16G Grader and, apparently at a later stage, he was passed as qualified to operate the Cat 785B and the 992 Loader. Before being passed on all these pieces of equipment, the respondent had to demonstrate to a Roche safety officer that he was familiar with the safe operation of each of those items of equipment. At the time his ability to operate the Cat 785B was assessed, the assessor also assessed his "boarding and alighting technique" as "competent in that activity": see primary judgment (at [29]). 12The respondent's work at Wambo was controlled on a day-to-day basis by a site supervisor employed by Roche who gave him directions as to what work he was to carry out. During the night shift on weekends, a Damstra shift foreman would be present, but during the rest of the time the shift foreman would be a Roche employee. Roche employed the safety officer who gave directions to the respondent and other Damstra employees as to matters relating to occupational health and safety. 13Access to the driver's cabin of the Cat 785B was by means of two ladders. On the right-hand side of the vehicle, looking at it from the front, there was a flexible ladder beneath the bumper bar and a rigid ladder comprising five steps above the bumper bar. The ladder above the bumper bar was made of metal with non-slip steps. It was inclined at an angle of about 75 degrees to the horizontal. At Roche's direction the Cat 785B was parked in such a manner that the angle of the ladder increased to 80 degrees. There was another ladder on the left-hand side with a slightly different handrail configuration to which I will refer (see [31]), but it was accepted that it was for emergency use only. 14The respondent described his usual method of gaining access to the cabin of the truck in his evidentiary statement as set out in the primary judgment (at [27]): "I developed a practice, when climbing the ladder under the driver's cab on the 785B to climb up to the third from the top rung (i.e. the third rung above the bumper bar). Once having reached that rung, and with both my feet on that step, I would transfer my right handhold to the upright part of the guardrail ... I would then reach out with my left hand to take hold of the horizontal bar which runs across the front of (and just below) the windscreen of the driver's cabin. After doing that I then climbed up to the second top rung with my left hand still holding the horizontal bar ... After getting both feet on the second top rung I would then pull myself up to the top rung of the ladder, then twist to turn right stepping with my right foot onto the platform. The method of climbing the ladder which I have described above is the same as I always used right from the very first time I accessed a 785B during my passing out assessment. I was never instructed to use another method of climbing the ladder." 15On the day of the accident the respondent's shift started at 8pm. He carried out a safety inspection of the vehicle with a small torch he carried in his backpack. His backpack also contained a book, a packet of biscuits and a small drink bottle. He stated that as he went to pull himself to the second top rung of the ladder, as his left foot was unloading weight from the third rung his left hand slipped and he lost balance. He retained his right hand grip for a very brief period before falling to the ground. 16Following the fall the respondent felt agonising pain in his left hip and lower back. He was taken by ambulance and helicopter to the John Hunter Hospital. The x-rays taken at the time were initially unremarkable, but subsequent x-rays of his pelvis showed factures of the superior and inferior pubic ramus which were undisplaced: primary judgment (at [66]). Duty of care 17There was controversy at trial about the nature and content of any duty of care Roche owed the respondent. The primary judge accepted (at [84]) the respondent's submission that the nature of Roche's duty of care was "to use reasonable care to avoid unnecessary risks of injury to the plaintiff and to minimise other risks of injury", applying Stevens v Brodribb Sawmilling Co Pty Limited [1986] HCA 1; (1986) 160 CLR 16 (at 47) per Brennan J. 18The primary judge (at [85]) said the content of the duty Roche owed the respondent had to be determined by reference to the facts of the case, in particular those relating to the relationship between the respondent and Roche. His Honour found (at [86] and [90]) that the relationship between Roche and the respondent, whilst not being co-extensive with that of an employer and employee, was significantly closer than that between a principal and an independent contractor. In this respect he relied (at [87]) upon the fact that as Roche was in charge of the operations at Wambo it had obligations under the CR Act , including having full charge of all operations at the mine and ensuring that the machinery, apparatus and equipment was maintained in a safe working condition. 19His Honour also identified (at [88]) obligations which devolved upon Roche apart from the CR Act by virtue of it "in fact [being] in charge of the mine and those persons working at it, including the respondent", its ownership of the plant and the fact it set up the system of work. He drew that inference from a letter Roche sent to the District Inspector of Mines of 5 May 2003 (see primary judgment at [21]), from the content of regular risk assessment/hazard studies which Roche carried out in relation to the operation of various pieces of plant, including the Cat 785B, and (at [89], [94]) the fact that, as Roche accepted, because the place of work was a mine, it assumed the responsibility of supervising the respondent and of providing him with the specialist equipment which he had to use. 20His Honour concluded (at [97]) that "the content of the duty owed by Roche to the plaintiff was to exercise reasonable care in providing him with a safe system of work and with safe plant with which to carry out his work." How the accident happened 21The respondent and a Mr Patterson, a co-worker who saw the accident, gave somewhat differing versions of the accident. In understanding the primary judge's reasons it is necessary to bear in mind that his Honour referred to the two ladders at the front of the Cat 785B as if he was looking out of the cabin - so that he treated the respondent as having been ascending the left ladder before he fell. 22As to one difference between the respondent and Mr Patterson, the primary judge said: "54 ... [T]he alternatives as to how the accident occurred would seem to be that the plaintiff took hold of the transverse rail beneath the windscreen but lost his grip, or that he reached for the transverse rail but missed it. Since the plaintiff has been consistent in saying that he lost his grip on the transverse rail, the alternative version could only have come from the statements made by Mr Patterson at the time of the accident. 55 For the purposes of the plaintiff's claim, it does not matter which of those two versions is correct. They both involve a problem relating to the system for access, either the plaintiff reached for and missed the transverse rail or he was able to grip it but lost that grip." (emphasis added) 23The primary judge found the accident happened in the following manner: "58 I am satisfied that at the time he was climbing the ladder the plaintiff was carrying a shoulder bag in the manner described by Mr Patterson, i.e. over one shoulder, rather than fully secured on both shoulders. That bag, however, was probably not of the kind issued to Roche employees but that described by the plaintiff's wife with the straps adjusted in such a way as to hang over one shoulder. 59 I am satisfied that the plaintiff did grip the transverse rail for a brief period at least with his left hand but then subsequently lost his grip on it. This is consistent not only with his evidence at trial, but with the statements which he made on the night of the accident... 60 I am satisfied that the shoulder bag did slip onto the plaintiff's right elbow while he was in the process of reaching out with his left hand to grip the transverse rail. I am not sure whether it was the transference of weight which caused him to lose his grip on the rail or whether the movement of the shoulder bag acted as a distraction, together with some transference of weight, which led to the same result occurring. Mr Underwood in his report allowed for both possibilities (see [36] hereof). ... 63 Whichever sequence of events occurred, they were each causally related to the means of access to the driver's cabin on the Cat 785B truck. As to whether that involved a breach of duty on the part of Roche is, of course, a different question." Counsel for the respondent said, without demur by Roche, that the "transference of weight" to which his Honour referred was a reference to the respondent moving his foot from the third to the second rung of the ladder as set out in the respondent's evidentiary statement: primary judgment (at [46]). It is apparent, therefore, that the primary judge accepted that the respondent was seeking to step from one rung of the Cat 785B to another and gain a new handhold on the transverse rail (which was not easy to reach - primary judgment (at [101])) consistent with the imminent alteration of his position on the ladder immediately before he fell. 24The reasons on the contributory negligence issue cast light on the primary judge's conclusions as to the part the handrail design played in the accident and Roche's negligence, when his Honour said (at [120]) that: "This is one of those cases where there was a fundamental defect in the system of work. There were not adequate support points to enable the plaintiff to maintain three points of contact, particularly when he had to stretch with his left hand to reach the horizontal bar beneath the driver's window . Inherent in the system of work was the risk that a driver would not be able to adequately support himself while climbing the ladder and would fall. The fact that this occurred was not the plaintiff's fault, but was implicit in the system of work which he was trying to implement ." (emphasis added) 25The primary judge recorded (at [73]ff) risk assessments and hazard studies Roche undertook in relation to its activities at Wambo. They included, prior to the accident, a risk assessment/hazard study completed on 20 August 2001 which identified the risk associated with "[f]alling caused by carrying items up ladders" as to which the action proposed to "Remove Manage Control Hazard/Risk" was "Training and instruction program so people maintain a three point contact while on the ladder. Operators and tradesmen to use shoulder bags to carry items while on the ladder". A risk assessments and hazard study Roche prepared after the accident in relation "to vertical ladders and access" included: "[a]ddress handrail support points; [m]odify handrails to prevent people using non-standard grab points" and "[i]nstall stairways on 785's". In a Significant Incident Report which addressed the respondent's accident, Roche recorded: "Possible Contributing Factors The right hand was holding the catwalk upright located to the right of the access ladder handrail making it difficult to regain balance once lost. No structure in place to aid in preventing falling on the right side of the access ladder. Remedial Action/Lessons Learned: Toolbox talk held describing the manner in which the operator ascended the ladder with emphasis on his use of the catwalk upright. Caterpillar 785's to be fitted with ladder handrail modifications, preventing people from using non-standard handrails such as the catwalk upright, and maintain a person's centre of gravity within the line of the ladder." Expert evidence 26The experts retained by both parties, Dr Grigg, a chartered professional engineer for the respondent and Mr Underwood, an occupational health and safety mechanical engineer for Roche, agreed that the ladder above the bumper bar on the Cat 785B would be classified as a "step ladder" for the purposes of Australian Standard 1657 - 1992, Fixed platforms, walkways, stairways and ladders - Design, construction and installation ("AS 1657"). 27Clause 5.5.1 of AS 1657 provided: "The angle of slope of step ladders shall be not less than 60 degrees nor more than 70 degrees to the horizontal. It is preferable that the angle of slope should not exceed 60 degrees." 28The experts agreed that the ladder did not comply with AS 1657, because it was at an angle of 80 degrees when the respondent was trying to climb it. 29Clause 5.5.5 of AS 1657 dealt with "Handrails". The last paragraph of that clause relevantly provided: "The bottom of the handrails shall commence at a point not greater than 900 millimetres above the floor or lower landing and, except as provided in clause 5.2, the handrail shall extend above the upper landing to a height of not less than 900 millimetres and be connected to the guard railing of the landing ..." Clause 5.2 was not relevant: primary judgment (at [33]). 30A provision similar to cl 5.5.5 also appeared in Australian Standard 3868 - 1991, Earth-moving machinery - Design guide for access systems, ("AS 3868") cl 4.2 of which provided: " HEIGHT The recommended grab rail height vertically above any step or inclined ladder is 900 mm ..." 31The experts agreed that the ladder did not comply with AS 1657, cl 5.5.5 because the handrail did not extend above the upper landing to a height of not less than 900 millimetres and was not connected to the guard railing of the landing. Both experts agreed that the absence of a handrail complying with AS 1657, cl 5.5.5 was an apparent design flaw. In contrast the handrail on the ladder on the right front of the truck did have a handrail so extending (primary judgment (at [35])) albeit that it was, apparently, added after purchase. There was no evidence as to who added it. It was common ground that the ladder on the right front of the vehicle could not have been used by the respondent for gaining access to the driver's cabin since it was for use in emergencies if the other ladder could not be used: primary judgment (at [26]). Extending the handrails on the ladder the respondent used was also not an option - see [42] below. 32Dr Grigg attached to his report Section 3 of the New South Wales Department of Primary Industry's Guideline for Mobile and Transportable Equipment for Use in Mines published in March 2002 (the "2002 Guideline") which was also relevant. Clause 3.1.1, which appeared under the heading "Access to Equipment", required, in substance, the design of "steps, ladders and walkways [to be] in accordance with AS 1657 and AS 3868 "as a minimum" and that AS 1657 "should be used where the height of the required access platform exceeds 2 metres from ground level". Clause 3.1.2 required vertical ladders to be avoided wherever possible, stairs to be provided wherever practical and, in particular, retractable stairs or ladders to be considered wherever practical, particularly for, among others, rear dump trucks. Substantially the same guidelines appeared in cl 2.1 of Guidelines for Surface Mobile Equipment for use in Coal Mines issued by the New South Wales Department of Mineral Resources in June 1992. 33A further document dated March 2002 entitled "MDG Overview - Guideline for Mobile and Transportable Equipment for Use in Mines" which appears to have been illustrative of the Guideline referred to in the preceding paragraph, was tendered without objection. It contained a slide depicting a Caterpillar 777D (which it was common ground was smaller than the Cat 785D) fitted with a transverse retractable stair access system. It was also common ground that the stairs must have been retrofitted. Transverse stair access systems were also used, apparently as part of the original design, on two larger Caterpillar trucks, the 793D and the 797B. 34Dr Grigg also attached to his report a Guideline issued by the Western Australian Department of Industry and Resources entitled "Personnel Access to Heavy Mining Machinery" published in December 1997. Clause 2.0 included that "[s]teps or stairways, rather than ladders should be installed, where practicable." 35In his first report Dr Grigg referred to the results of an inquiry he had made of an Australian company which retrofitted transverse stair access systems to Caterpillars to the effect that such systems could be fitted for approximately $22,000 in a procedure which would take about two days. Mr Underwood, Roche's expert, did not challenge that proposition. 36The experts conferred prior to trial and agreed: * the purchase cost of a Cat 785C dump truck (of similar capacity but a later model to the Cat 785B) was about $2.6 million as at 2010; * that the likely cost of retrofitting a Cat 785B with a transverse stair access system, such as was shown on larger dump trucks, was about $22,000 in 2008; * that retrofitting costs would have been less in 2002/2003 but they were not able to say by how much; * that "there may be some downtime penalty cost" of retrofitting which they could not quantify, but that such costs "could be minimised by scheduling the retrofitting task with scheduled maintenance activities"; and * that if such a transverse stair access system had been used on the Cat 785B, it would have greatly reduced the risk of the respondent overbalancing and falling. 37As at April 2003 Roche owned more than 500 pieces of plant, located at various sites around Australia, of which 42 were Cat 785B dump trucks. There were seven Cat 785B dump trucks at Wambo. 38The primary judge summarised the significance of the ladder's design and its position at the time of the accident as it appeared to the experts as follows: "36 The conclusion arrived at by Mr Underwood in his report was as follows: ' Conclusion 43 The Cat 785B dump truck (Roche Mining Unit 385) had several inherent design weaknesses that contributed to the risk of falling from the ladder at or near the transition point (where the operator was required to move laterally from the ladder to the access platform). The parking of the vehicle so that it was facing slightly downhill only marginally exacerbated the risk of a person overbalancing if they were using the ladder handrails and the grab rails provided for the ladder access since it only marginally increased the angle of inclination of the ladder. 44 The risk of falling was significantly greater if the person boarding the dump truck used the access platform stanchion as one of the three points of support (the actions being taken by Mr Jeffs at the time he slipped and fell) rather than the grab rail under the windscreen. The risk would also be greatly increased if any load being carried up the ladder was to shift during the climb (and particularly if it shifted when the person was at the top of the ladder section), or the person attempted to readjust the load being carried while they were standing on the ladder.' 37 In the course of his evidence, Mr Underwood said: 'The only thing that I think we can both say, Dr Grigg and myself, is that the system, the actual arrangement was not a particularly good design. It had inherent faults that I think had some factors in the actual event occurring.' (T174.20) 38 Doctor Grigg in his evidence noted that the steepness of the ladder required extra reliance to be placed on secure handgrips. He said: 'Look, I agree that it would be less likely, but I think there is a tendency here to focus just on the rails. You bear in mind that these steps are steep and that creates a situation that I think you said the plaintiff was saying he was sort of pulling himself up. Now, that occurs because the steps are steep.' (T181.40) 39 In his first report on this issue Dr Grigg said: 'Although the ladder is equipped with handrails on each side, at the top of the ladder there is a vertical surface facing a person climbing the ladder, and the next available handhold, other than the vertical posts supporting the guard rails on each side at the top of the ladder, is a horizontal rail mounted on top of the sloping surface in front of the driver's windscreen. Thus when approaching the top of the ladder, there is a need to transfer the hands, probably first to the vertical posts of the guard rails and then to the horizontal rail in front of the windscreen. These transfers would all have to occur whilst standing on the narrow treads of the ladder and since the treads would be expected to be horizontal when the truck was horizontal, if it was adopting a nose down attitude due to its front tyres resting in a ditch, there would be a slight forward slope on each of the treads. Based on the description of the incident, it was whilst in the process of transferring the handgrip from the rails on each side of the ladder, to the grab rail that the incident occurred. Thus the lack of continuity of the handrails appears to have been a significant factor in the causation of the incident. The relatively narrow treads on the ladder would mean that in the absence of a secure grip on the hand or grab rails the feet would be unable to provide any significant degree of stability that could assist in preventing a fall. In all the circumstances, although the ladder fitted to the front of the truck provided a means of access to the driver's cabin, it required a much higher level of care than would be required on alternative access systems and especially so when wet.' 40 In his second report Dr Grigg set out the following observations and conclusions: '3. I agree with Mr Underwood that the Cat 785B dump truck has an inherent design weakness and I believe that the requirement to move sideways from the top of the ladder to the access platform in a region where the handrails are not continuous involves a significant risk of a person falling. While the risk of overbalancing and falling might be exacerbated by movement of a slung load, it is normal practice for drivers of such machines to carry such items when mounting and dismounting and the access system should cater for this probability. 4. Although I agree with Mr Underwood that the access platform stanchion is poorly positioned to provide a good means of stabilising a person relying on it as a means of support, it is the only member providing a semblance of continuity of a handrail above the top of the ladder. The grab rail below the windscreen is relatively remote and there is nothing leading close to it on the left hand side at the top of the ladder. Conclusions 1. The access ladder being used by the plaintiff could best be described as primitive and not in conformance with Australian Standard As 1657 or Mining Industry Guidelines in New South Wales. 2. A step access system could have been fitted to the truck at moderate cost and it would be expected to significantly reduce the risk of a fall and of injury such as those suffered by the plaintiff .' " (emphasis added) Breach of duty 39The primary judge concluded (at [99]) that applying ss 5B and 5C of the CL Act, the risk of a driver falling while using the rigid ladder on the Cat 785B to gain access to its cabin was foreseeable in the s 5B(1)(a) sense, that the risk was not insignificant in that there was a real likelihood of it occurring and if it did occur, the consequences for the driver would be serious in that the potential fall distance was in excess of 2.5 metres. 40His Honour also concluded (at [100]) that, "having regard to the [expert] assessments ... the Australian Standard and the stringent safety requirements which applied to the operation of mines in NSW at the time, that Roche ought to have known about this risk." He continued: "The stepladder above the bumper bar was too steep and the handrails on it were inadequate contrary to AS 1657 (see [31-33] hereof). The accident which occurred was of the kind which the standard was designed to prevent. The guidelines issued by the Department of Mineral Resources for surface mobile equipment used in mines required compliance with the Australian Standard (exhibit H, pp 97-122). 101 Such an assessment is not based on hindsight reasoning. The expert evidence was unanimous in its assessment that there was a design flaw in the access to the driver's cabin on the Cat 785B. The upright of the guardrail (or stanchion) was not well placed to be used as a handhold. The horizontal bar beneath the window could not easily be reached with the left hand. This deficiency was significant in that it occurred at what the experts described as the transition point where the driver was required to move laterally from the ladder to the access platform . The danger of falling was increased if any load being carried up the ladder was to shift while the driver was negotiating this transition point. 102 As Dr Grigg pointed out, the steepness of the ladder meant that there was a greater requirement for the driver to use his hands and arms to pull himself upwards towards the access platform. This greatly increased the risk of a fall if (as occurred) a problem arose in transferring a handgrip from the rails on each side of the ladder to either the upright of the guardrail or the horizontal bar beneath the driver's window . 103 Dr Grigg summarised the situation in his second report as follows: 'I agree with Mr Underwood that the Cat 785B dump truck has an inherent design weakness and I believe that the requirement to move sideways from the top of the ladder to the access platform in a region where the handrails are not continuous involves a significant risk of a person falling. While the risk of overbalancing and falling might be exacerbated by a movement of a slung load, it is normal practice for drivers of such machines to carry such items when mounting and dismounting and the access system should cater for this probability.' (See [40] hereof.) 104 It is clear from the expert opinion that had Roche turned its corporate mind to the risks confronting drivers accessing the Cat 785B, it would have concluded that it was reasonably foreseeable that a driver might fall and that this risk was real in the sense that it was not insignificant. 105 While the above analysis is sufficient to satisfy s 5B(1) CLA it can be inferred that Roche was in fact aware of the risk. 106 There was no unequivocal evidence that Roche had actual knowledge of the risk to drivers of the Cat 785B. However, the emphasis in its risk assessment/hazard study of 20 August 2001 (exhibit N) on drivers maintaining a three point contact while on a ladder suggests actual knowledge. ..." (emphasis added) 41The primary judge summarised (at [107]) Roche's submissions on the question whether a reasonable person in its position would have taken precautions against the foreseeable risk and if so what those precautions should have been, as: "...that in the absence of any previous injuries of this kind on the Cat 785B in the preceding three and a half years (exhibit 11), its response of requiring drivers to maintain a three point contact when using the ladder was appropriate ... that nothing more was required [and] the two alternatives relied upon by the plaintiff were based on hindsight and could not as a matter of practicality be implemented." 42Roche also submitted, and the primary judge accepted (see [108], [111]), that extending the handrails beyond the top of the ladder had not been considered by either expert and - even though it was an alternative suggested by Roche in its post accident reports - might well create further safety issues regarding access to the platform. His Honour concluded (at [112]) that the response to the foreseeable risk of injury relied upon by the respondent was the retrofitting of a transverse stair access system. As to costs and practicability, his Honour said: "112...While a cost of approximately $20,000 may appear substantial, it is relatively minor when considered in the context of a piece of equipment costing approximately $2.6 million. This is despite the fact that such a modification would have had to have been made to 42 dump trucks at an approximate total cost of $850,000. While such an amount on its face appears substantial, it has to be looked at against the cost of each dump truck and the fact that Roche was a major participant in the Australian mining industry in 2003 with over 500 pieces of plant which included 42 Cat 785B dump trucks. 113 Significantly, Roche did not submit in terms that the carrying out of such a retrofit was unreasonably expensive. One can well understand why such a submission was not made. In the risk assessment/hazard study of 17 April 2003 one of the recommendations was that stairways be installed on the Cat 785B's (exhibit O). I infer that such a recommendation would not have been made if the author or authors had considered it to be too expensive and therefore an excessive response to the foreseeable risk ." (emphasis added) 43His Honour then turned (at [114]) to the question whether, from a prospective point of view, that is to say given Roche's state of knowledge at the time of the accident, a reasonable person in Roche's position would have responded by retrofitting a transverse stair access system to a Cat 785B. He found in the respondent's favour on this issue (at [115] - [116]) saying: "116 The risk of injury was readily foreseeable and arose from a design fault in the access to the driver's cabin. In such circumstances it was not an adequate response by the entity providing the plant and controlling the system of work to direct drivers to take special care. This is all that Roche's insistence on drivers maintaining a three point contact while on ladders amounted to . More was required. 117 It is trite law that in devising a safe system of work one has to take into account inadvertence or miscalculation on the part of those who have to implement that system. This is so when it is known, or ought to be known, by the party designing the system of work that the system as designed involves a real risk of injury ( McLean v Tedman & Anor (1984) 155 CLR 307 at 311, 313). This is so when the risk involves a fall from a distance in excess of two metres where serious injury and/or death could result." (emphasis added) 44As to causation, the primary judge said: "118 There was no issue between the parties as to causation. The expert evidence was unanimous that the fitting of a transverse stairway would have significantly reduced the risk of injury. Similarly, there was no issue that it was the defect in the access to the driver's cabin on the Cat 785B which caused this accident. Factual causation under s5E CLA was established." Submissions 45There were 10 grounds of appeal but essentially the two issues Roche sought to contest were breach and causation. 46Roche complained that the primary judge failed to have regard to the following circumstances which, it contended, militated against a finding that a reasonable person in Roche's position would have taken the precaution of installing a transverse stair access system on the Cat 785B. Those circumstances were, first, the fact that the risk of falling from the ladder to the ground was ordinary and obvious; secondly, that it was a risk of injury known to the respondent; thirdly, the fact that the respondent was an experienced plant operator particularly with respect to heavy equipment; fourthly, the fact that the respondent had undergone induction which included warnings relating to the risk of falling from the ladder and the need to keep three points of contact at all times and demonstrated proficiency in, among other matters, ascending and descending the ladder; fifthly, the fact that on the day of the accident the respondent used the method in which he was trained to ascend the ladder; sixthly, the fact that he had not previously identified a problem with the ladder; seventhly, the fact that there was no evidence before the Court that there had been any similar incident, or other problems experienced by drivers when ascending or descending the Cat 785B ladder; eighthly, the fact that the Cat 785B was designed and manufactured by an international company which specialised in several plants; and, ninthly, the fact that neither experts suggested that the design flaw was a recognised problem in the industry or elsewhere. 47Roche also complained, that in the light of the numerous uses of the ladder without incident, the primary judge's conclusion that it ought to have taken precautions to guard against the recognised risk was one made with the benefit of hindsight. 48Roche next submitted, based on Mr Patterson's evidence, that he had never seen a Cat 785B with a transverse stair access system, that it was common practice in the industry across Australia prior to the respondent's accident for Cat 785Bs to be so operated. 49Roche also contended that it was the original design which, according to the expert evidence and the primary judge's findings, caused the respondent's injury for which it was not liable pursuant to the principle in Davie v New Merton Board Mills Ltd [1959] AC 604. 50As to foreseeability, Roche submitted that a risk which confronted the respondent was that of falling from the ladder while climbing it or when transitioning to the platform which led to the driver's cabin. It submitted that it was sufficient to deal with that risk that Roche instructed drivers to maintain three points of contact. 51Roche raised a number of complaints going to causation. Its written submissions queried whether, having made an inquiry of Caterpillar and been advised, as Dr Grigg's evidence suggested, that if Roche had been aware of the risk of injury and had contacted Caterpillar "it would presumably have been informed that there was no after market retrofitting" for the Cat 785B, a reasonable response from Roche required it to do any more to respond to the alleged risk. It submitted that it would not. 52Roche further submitted that, accepting the expert evidence that the most cost-effective way to retrofit the transverse stair access system was during ordinary servicing of the vehicles, the respondent had not called sufficient evidence to impose an evidentiary onus upon it to demonstrate whether or not in the 18 months or so that it had had ownership of the vehicle from which the respondent fell, it had been serviced. Moreover Roche contended that the question of practicability of retrofitting the transverse stair access system could not be confined to the vehicle from which the respondent fell, but had to be directed to retrofitting the entire fleet of Cat 785Bs. Roche further contended that the respondent ought to have proved that it was practicable for it to retrofit such stairways in the ordinary course of business, rather than close down Wambo (or presumably other mines at which Cat 785Bs were located). 53The respondent submitted that the primary judge's conclusions on the issue of breach were open on the evidence. He acknowledged that he had not given evidence of experiencing any difficulties in relation to using the ladder, but made it clear that he had had to use the upright stanchion and then the horizontal rail below the windscreen as hand holds because the handrails on the ladder were too low once he had climbed to the middle step. He also acknowledged that there was no evidence of a similar incident having occurred in relation to the Cat 785B in the circumstances in which he was injured, but submitted that that did not demonstrate that other workers had not experienced the same problem as he had. 54Next, the respondent submitted that the defect in the ladder and the length of the handrails was not a latent defect of the nature of that which existed in Davie v New Merton Board Mills . Rather, he submitted, first, that any reasonable inspection would have revealed that the ladder did not comply with the mandatory requirement in AS 1657 in that the angle of its slope was 80 degrees when parked as Roche directed, and 75 degrees otherwise, whereas the standard required that it be no more than 70 degrees and preferably 60 degrees. Secondly, he relied upon the fact that the ladder did not comply with AS 1657 because of the length of the handrail. Thirdly, he relied upon the deficiencies in the Cat 785B identified by the experts. He also pointed to the fact that Roche owned a number of Komatsu 830E dump trucks which were acquired with transverse stairways. 55Insofar as Roche submitted that the respondent had not established that there was time for it to have retrofitted all the Cat 785Bs that it owned as at April 2003 prior to the respondent's accident, the respondent first noted that this argument was not advanced at trial. Had it have been, he submitted, the primary judge may well have inferred that the 21 months Roche had been operating Wambo since June 2001 would have been ample time for it to retrofit the seven Cat 785Bs at that site with transverse stair access systems. He also challenged Roche's submission that had it made inquiries about an alternative ladder system, it would have ascertained from Caterpillar's website that transverse stair access systems were not available. He drew attention to the recommendations Roche's executives made after his accident, one of which was to "install stairways on 785's". He argued that it was hard to see how that could be a reference to anything other than what was depicted on dump trucks with transverse stair access systems. Further, he pointed out, that no one from Roche's camp gave evidence to suggest that "stairway" was used by it in any different sense in its recommendation. 56Insofar as Roche submitted that there was no evidence that retrofitting of transverse stair access systems was undertaken routinely either around the time of the respondent's accident or earlier, the respondent submitted that the evidence from the New South Wales Department of Mineral Resources Guidelines showed a Cat 777D dump truck (a smaller truck than the Cat 785B) with a transverse stair access system which must have been retrofitted because the evidence was that smaller vehicles in the Caterpillar range were not manufactured with such stairways. Finally, on this point, the respondent submitted that it could not seriously be suggested that Roche was unaware of the Australian Standards and Industry Guidelines to which I have referred. 57Insofar as causation was concerned, the respondent submitted that the primary judge was correct to state that Roche raised no issue as to causation at trial. This was demonstrated by the absence of any reference to that issue in Roche's written submissions and oral submissions at trial. In any event, the respondent contended that the primary judge made findings of fact (at [118]) sufficient to deal with the causation issue under s 5E, CL Act. Consideration The content of Roche's duty of care 58Consideration of this issue should be undertaken within the framework of the following principles. 59In Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 (at [108]), Campbell JA (with whom Giles and Ipp JJA agreed) explained that when an appellate court is deciding whether a first instance judge has erred in the evaluative task involved in deciding whether established facts amount to a failure to take reasonable care, it is recognised that the appellate court should give respect and weight to the conclusion of the trial judge. Nevertheless, as his Honour continued in the same paragraph, referring to Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 (at 552), "the fact that the task is evaluative is not a reason for appellate courts to stand back once they have reached the conclusion that the primary judge's conclusion was wrong". This was because, his Honour also pointed out, the majority in Warren v Coombes was of the view that "the trial judge can enjoy no significant advantage" on the question whether there has been a failure to exercise reasonable care. 60Further, as Roche reminded the Court, in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge and, although in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, having reached its own conclusion, it will not shrink from giving effect to it: Warren v Coombes (at 551). 61It is important to reiterate that the issues raised on appeal are confined. Roche does not challenge the primary judge's finding that it owed the respondent a duty of care or his Honour's conclusion as to its content. Nor does Roche challenge the primary judge's conclusion (at [118]) that the expert evidence was unanimous that the fitting of a transverse stair access system would have significantly reduced the risk of injury. 62I would record, however, that insofar as the content of Roche's duty of care is concerned, the primary judge was correct, in my view, in adopting Brennan J's formulation in Stevens v Brodribb Sawmilling Co Pty Ltd (at 47 - 48) (at [84]) in terms of a duty "to take reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury". This is a less stringent duty than that owed by an employer to employees: Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 (at [21]); see generally, Pacific Steel Constructions Pty Ltd v Barahona; Jigsaw Property Group Pty Ltd v Barahona [2009] NSWCA 406 (at [76] ff). It recognises, among other matters, Roche's role in operating Wambo, its responsibilities under the CR Act, its control of the system of work and its ownership of the plant the respondent was required by Roche to operate. 63Further, his Honour stated (at [85]), correctly in my respectful view, that the content of the duty of care had to be determined by reference to the facts: see Modbury Triangle Shopping Centre Pty Ltd v Anzil [2005] HCA 61; (2005) 205 CLR 254 (at [103]) per Hayne J. It is necessary, of course, to guard against the danger of allowing the cause of the injury to determine the content of the duty without focussing on all relevant circumstances, including the relationship between the parties: see Kuhl v Financial Services Australia Ltd [2011] HCA 11; (2011) 276 ALR 375 (at [19] - [22]) per French CJ and Gummow J and the cases their Honours cited. Bearing those principles in mind, in my view the primary judge did not err in formulating (at [97]) the content of Roche's duty of care as being to provide the respondent with a safe system of work and safe plant with which to carry out his work. The mechanism of the accident 64It is necessary at this stage to revisit the conclusion of what the primary judge as to the mechanism and cause of the respondent's fall. I have set out his Honour's conclusions as to how the accident happened at [21], [23] and [24]. In essence, as I understand his reasons, he concluded that the mechanism of the accident was the absence of continuous handrails as a result of which the respondent had inadequate support points on either side of the ladder, had to stretch above shoulder height to grasp the transverse rail (which could not easily be reached with the left hand) to pull himself up the ladder and, because he was in an inherently unstable position, was vulnerable to fall if, as happened, his hand slipped off the transverse rail. The risk of a fall was exacerbated to some extent by the angle of the ladder. His Honour concluded that the accident was caused both by the design fault in the access to the driver's cabin and Roche's failure to devise a safe system of work to obviate the risk to which it exposed drivers such as the respondent. Davie v New Merton Board Mills Ltd 65Roche also submitted that the primary judge erred in failing to find it was not liable for a defect in the original design of the Cat 785B which caused the respondent's injury. In deference to the primary judge's reasons it should be recorded that Roche did not advance this submission at trial - at least not by reference to Davie v New Merton Board Mills and not with the clarity with which the point was expressed in Roche's written submissions on appeal . 66The respondent did not object to Davie v New Merton Board Mills being raised on appeal but contended that the principle for which it stands is subject to the qualification that the purchaser "has made any inspection which a reasonable employer would make". The respondent submitted that an inspection would have revealed that the Cat 785B did not meet the Australian Standards and that it had inherent design weaknesses. 67In Davie v New Merton Board Mills an employee suffered injury to his eye as the result of a latent defect (excessive hardness of the steel due to negligent heat treatment) in a tool - a drift - provided by his employer. The drift was a tapered bar of metal about one foot long that was struck by a hammer. The drift was apparently in good condition, but because of its excessive hardness it was, in the circumstances, a dangerous tool. The negligent manufacture had been undertaken by reputable makers who had sold it to a reputable firm of suppliers who in turn had sold it to the employer. The employer's system of maintenance and inspection was not at fault. The House of Lords held that the employer's duty was a duty to take reasonable care to provide a reasonably safe tool and that such duty had been discharged by buying from a reputable source a tool whose latent defect it had no means of discovering. 68It is plain from this recitation of Davie v New Merton Board Mills that it cannot apply in this case. The primary judge concluded that Roche's negligence lay in its failure to devise a safe system of work having regard to its knowledge that those having access to the Cat 785Bs were exposed to a real risk of injury. Davie v New Merton Board Mills concerned a situation of a latent defect. The respondent in this case was exposed to a patent defect against which Roche failed to take, on the primary judge's findings, reasonable precautions to protect him. 69This conclusion accords with TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 where Mason P held that, consistently with Davie v New Merton Board Mills , it was not enough for the plaintiff in that case to show that his injury was due to some latent or inherent defect in a pallet jack with which he was required to work, even a defect which was the result of negligence on the part of its manufacturer. However, the plaintiff could recover if it was established that his injury was the result of negligence in regard to the maintenance and repair of the equipment by a person for whose conduct his employer was vicariously liable: TNT Australia Pty Ltd v Christie (at [60] - [61]) per Mason P; (at [179]) per Foster AJA; Galea v Bagtrans Pty Limited [2010] NSWCA 350 (at [66] - [70] per Hodgson JA (Allsop P and Macfarlan JA agreeing). Breach of duty 70It was for the respondent to lead evidence of facts sufficient to prove, directly or by inference, on the balance of probabilities, that not only did Roche owe to him a duty of care but that that duty was breached and that the breach caused his injuries: Kuhl v Zurich Financial Services Australia Ltd (at [11]) per French CJ and Gummow J. He thus had to establish that a reasonable person in Roche's position would have foreseen that its conduct involved a risk of injury to him or to a class of persons including him, and to then establish what a reasonable person would have done in response to the risk: s 5B, CL Act, Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (at 47 - 48). In evaluating the respondent's case, the primary judge had to be careful, as he reminded himself, not to assess the position with the benefit of hindsight: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [18]) per Gummow J (with whom Heydon J agreed). 71Roche conceded that there was a recognised risk that persons in the respondent's position could fall from the ladder while climbing it, a risk it had sought to address by instructing drivers to keep a three-point contact at all times when using the ladder - a point also reinforced by a sign repeating those instruction being affixed to the Cat 785B behind the ladder where it was visible to the driver. Accordingly, it was open to the primary judge to infer that that there was a reasonably foreseeable risk that a failure take steps to obviate that risk could cause injury to a person like the respondent, and that such a risk (including that of serious injury, given the height from which a driver seeking a handhold at the top of the ladder might fall), was not insignificant: s 5B(1) and (b), CL Act. 72The next question was what, if any, precautions a reasonable person would have taken in the circumstances: s 5B(1)(c), CL Act. 73In my view it was open to the primary judge to conclude that in those circumstance the precaution the respondent submitted Roche should have taken - the retrofitting of a transverse stair access system -was a reasonable precaution and was not one advocated with the benefit of hindsight. 74Both AS 1657 and AS 3868 (with both of which Roche was required to comply and which predated the accident) required the handrails to extend not less than 900 millimetres above the top of the ladder. Further, the 2002 Guideline required vertical ladders to be avoided wherever possible and stairs to be provided where practicable. The expert evidence established that a stair system could be retrofitted to Cat 785Bs. 75Roche submitted, however, that the evidence demonstrated that the access configuration on the Cat 785B conformed to industry practice. This submission was based solely on Mr Patterson's evidence about what he had seen when working at mines mainly in Western Australia in the seven years he had worked in the mining industry prior to the respondent's accident. Whether or not Mr Patterson's evidence could be relied upon as establishing industry practice need not be debated. Even if it were the case that the access configuration on the Cat 785B conformed to industry practice, although important, it would not necessarily establish that Roche was not negligent: Mercer v Commissioner for Road Transport and Tramways (NSW) [1936] HCA 71; (1936) 56 CLR 580 (at 589) per Latham CJ; Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113 ; (2010) 239 FLR 198 (at [86] - [87]) per Sackville AJA (Basten and Campbell JJA agreeing). 76Further, the evidence of common practice had to be weighed against the requirements of AS 1657 and AS 3868 and the 2002 Guideline. Such materials are a guide to, but cannot dictate, the standard of reasonable care required in the circumstances of individual cases: see Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 (at [23]) per Gleeson CJ; (at [110]) per McHugh J. However, they were cogent evidence that those regulating the mining industry were of the view prior to the respondent's accident that the means of access to equipment such as the Cat 785B exposed workers to a risk of injury from falling which could, and where practical should, be avoided by the fitting of a stairway. In other words, common practice was not necessarily prudent practice. 77As to Roche's contention that the respondent's experience, training or the obviousness of the risk militated against precautions (other than those in place) being taken, I agree with the primary judge's conclusion (at [117]) that a person in Roche's position is required, when devising a system of work, to take into account inadvertence or miscalculation on the part of those who have to implement that system, especially when it is known, or ought to be known, by that party that the system as designed involves a real risk of injury involving a fall from a distance in excess of two metres where serious injury could result. Although McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, to which his Honour referred in reaching this conclusion, was an employer-employee case, the content of the duty of care the primary judge found (at [97]) that Roche owed the respondent did not differ in any relevant respect from that being applied in that case: see McLean v Tedman (at 311, 313). 78Roche also pointed to the fact that there had been no reports of other falls from the ladder prior to the respondent's injury. That too is not irrelevant, but is not determinative of the question whether there is a duty of care ( Kuhl (at [82]) per Heydon, Crennan and Bell JJ) let alone, in my view, whether that duty has been breached. Moreover, as the respondent submits, that did not mean there was no risk. Rather, as I have said, Roche had sought to devise a system which obviated the recognised risk: requiring drivers to keep a three point hold at all times. I agree with the primary judge that, having regard to the risk of significant injury if a driver was unable to do so, that was an inadequate response. 79In my view the primary judge did not err in concluding that Roche breached the duty of care it owed to the respondent. Causation 80The onus of proving, on the balance of probabilities, any fact relevant to the issue of causation lay on the respondent at all times: s 5E, CL Act. To satisfy the element of causation he had to identify the action which, on the available evidence, the primary judge could conclude ought to have been taken. That action, if failure to take it was to be considered negligent, had to be such that the foreseeable risk of injury would require it to be taken, having regard to the nature of the risk and the extent of injury should the risk mature into actuality. It was necessary to establish that the primary judge could conclude as a matter of direct evidence or legitimate inference that, more probably than not, the installation of the transverse stair access system would have prevented or minimised the injuries the respondent sustained: Kuhl (at [45]) per French CJ and Gummow J; (at [104) per Heydon, Crennan and Bell JJ (all citing State of Victoria v Bryar (1970) 44 ALJR 174 (at 175) per Barwick CJ, McTiernan, Owen and Walsh JJ concurring). 81Roche's written submissions on causation contended that the respondent had to establish that the transverse stair access system would have obviated the risk of injury and that it was not sufficient that it be established that that system would have reduced the risk. It is apparent from Kuhl (and numerous other authorities, as to which see Varga v Galea [2011] NSWCA 76 (at [25])) that that submission must be rejected. It is sufficient that the suggested precaution would have minimised the injury. The primary judge (at [118]) accepted the expert evidence that such a system would have significantly reduced the risk of injury. That was sufficient to discharge the respondent's burden of proof in this respect. It is also, of course, necessary that the breach of duty be causally related to the injury. That was also established by the expert evidence. 82Roche's next submission with respect to causation was that if it had contacted Caterpillar to inquire about a means of obviating the risk of injury arising from the access configuration it would have been told that the company did not retrofit Cat 785Bs and that that would have been a sufficient response on its part. The submission should be rejected. Dr Grigg ascertained, relatively easily I infer, that a company based in New South Wales specialised in stairs suitable for such trucks and claimed to have sold many in Australia and exported them to several countries. There was no challenge to this evidence. Further the 2002 Guideline included a photograph of a Caterpillar truck smaller than the Cat 785B which had been retrofitted with a transverse stair access system which also demonstrated that such systems were available prior to the respondent's accident. 83Roche then complained that the respondent had failed to establish that there was a practicable timetable during which seven, or 42, Cat 785Bs could have been retrofitted with transverse stair access systems having regard to the time Roche took over Wambo. 84As to practicability generally, the primary judge remarked (at [112]) that the cost of retrofitting a transverse stair access system was "relatively minor" in the context of a piece of equipment costing approximately $2.6 million. This was a question his Honour appears to have posed for himself, instructed no doubt by s 5B(2)(c) of the CL Act, rather than in response to a submission by Roche. His Honour approached this issue on the premise that Roche would have to retrofit all the dump trucks it owned in Australia as opposed to the seven at Wambo. It is not, with respect, apparent to me why that is so. There was no evidence that dump trucks at Roche sites other than Wambo had the same configuration as that at Wambo, although as much may be inferred in the case of other Cat 785Bs. However there was no evidence as to the system of work at other Roche sites - in particular whether workers had to access the Cat 785Bs in the same manner as the respondent or whether they were parked in the same manner. Nevertheless, even accepting his Honour's premise, which he thought was significant (at [113]), Roche did not contend that retrofitting was "unreasonably expensive", a position his Honour found unremarkable in the light of the recommendation in the risk assessment/hazard study carried out after the respondent's accident that stairways be installed on the Cat 785B. 85Roche did not challenge his Honour's observations as to how it ran its case on the issue of practicability at trial. Nevertheless it sought to raise in this Court the argument that the respondent did not establish that it could have practicably retrofitted the dump truck with a transverse stair access system in the time since it assumed operations at Wambo. Insofar as the experts agreed that the retrofitting could be carried out during regular servicing, Roche also contended the respondent did not establish that any such servicing occurred during the period it operated Wambo prior to the accident. As will be apparent, neither of these matters was in issue at trial. In my view Roche should not be permitted to raise them now. 86A party is bound by the conduct of its, his or her case. Except in the most exceptional circumstances, it would be contrary to principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, that party failed to put during the hearing when the opportunity to do so was available: Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481 (at 483); see also Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at (8 - 9); Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867 (at [44]). A party cannot raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial: Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 (at [51]) per Gleeson CJ, McHugh and Gummow JJ. 87Roche submitted that it was entitled to raise a no evidence point on appeal notwithstanding these principles. It contended it would have been entitled to do so at the stage of submissions at trial after the evidence had closed. 88A party may raise a "no evidence" objection on appeal notwithstanding that no such objection was taken at trial, provided that the objection is one which, if taken at trial, would have been fatal to the appellant's case: Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517 (at [125]) per Gummow J, referring to Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367. In the latter case McTiernan, Fullagar, Kitto and Taylor JJ referred (at 377) to the practice that a ground of appeal which had not been raised upon the trial would not be entertained if it related to a defect which might have been cured at the trial but that if the objection was one which could not have been overcome it was thought proper to allow it to be taken for the purpose of doing justice between the parties. In Sydney Harbour Trust Commissioners v Wailes [1908] HCA 19; (1908) 5 CLR 879 , (at 889) per Isaacs J and Measures v McFadyen [1910] HCA 74; (1910) 11 CLR 723 (at 733) per O'Connor J, the two High Court cases to which their Honours referred as evidencing this practice, the point was made that if the defect sought to be raised on appeal was one which could not have been cured by evidence it could be raised on appeal. No fine point relating to when, at trial, such defect would be cured was identified. 89The "practice" referred to in Hampton Court Ltd v Crooks appears to me to be an expression of the principle stated in the authorities to which I have referred at [86]. In my view it has no application to this case. Had Roche sought to advance the timing argument at trial, even in the submissions stage, the respondent would have been entitled to seek leave to reopen its case to adduce evidence on the issue. Such an application would, in my view, most probably have succeeded in the light of the fact that the experts had addressed the practicability issue by agreeing retrofitting could be undertaken during scheduled maintenance activities and Roche had not contended any further practicability issue arose: see White v Overland [2001] FCA 1333 (at [4]) per Allsop J (as his Honour then was). 90Moreover, in my view, the respondent adduced sufficient evidence of the practicability of retrofitting the Cat 785Bs to raise the inference that such steps could be taken for a relatively modest cost and in a time which was not inordinate having regard to when Roche commenced operating Wambo - even if, as Roche contended, that time be taken to have commenced in November 2001. It is scarcely conceivable that heavy machinery such as Cat 785B would not have been serviced during that period. To the extent "slight evidence" of such matters would suffice (see Hampton Court Limited v Crooks (at 371)) it can be found in Roche's Incident Listing for the period 1 January 2000 to 14 April 2003, which showed that an employee had been injured while servicing a "785". In any event, the experts did not say retrofitting had to happen when a Cat 785B was serviced; merely that undertaking that exercise during a service could minimise the costs which Dr Briggs described as "modest" in any event. 91In the absence of evidence from Roche, which must have had full knowledge of the practicability or otherwise of having to retrofit the transverse stair access system to seven Cat 785Bs since its time at Wambo, including the times such vehicles were serviced, the primary judge would had this issue have been raised, have been entitled to infer that there was no practicable obstacle to the course for which the respondent contended. A conclusion based on an inference arising from Roche's failure to call evidence to refute that slight evidence does not offend the s 5B, CL Act dictate that the plaintiff always bears the onus of proving any fact relating to causation: see generally Woolworths Limited v Strong [2010] NSWCA 282 (at [60] - [62]) per Campbell JA (Handley AJA and Harrison J agreeing); special leave granted: Strong v Woolworths Limited [2011] HCATrans 131. Orders 92I would dismiss the appeal with costs. 93BASTEN JA : Given the way in which this case was run, both at trial and on appeal, the appeal must be dismissed, for the reasons given by McColl JA. However, lest it be thought that either the factual findings or the exposition of legal principle may have broader application, those limitations should be identified, by reference to three topics. Expert evidence 94First, it is clear that the two experts were allowed and invited to comment on matters on which they had no special expertise, such as the credibility of the recollection of the respondent and another witness (see primary judge at [61]). They also expressed views as to how the fall occurred, based on factual assumptions and reasoning which had little basis in their expertise and were ultimately a matter for the trial judge. Such evidence required careful analysis before being accepted. For example, in a passage quoted at [38] above, Mr Underwood expressed the view that "[t]he risk would be greatly increased if any load being carried up the ladder was to shift during the climb...". That view appears to have been accepted by the primary judge at [101] - set out at [40] above. Perhaps the word "load" was intended to convey significant weight; but the respondent was carrying a small torch, a book and a small water bottle. The statement was not obviously relevant or, if relevant, correct. 95Dr Grigg gave the only evidence of the cost of installing a stairway based on a phone call to a supplier. In a joint conference, the experts were asked if it was "common practice" as at 14 April 2002 to "retrofit" stairways to the relevant class of vehicle. Neither had "any direct knowledge", but they made comments resulting in "agreement reached". 96There is no purpose in multiplying examples. None of this evidence was objected to, nor the specific use made of it challenged. It has, unfortunately, the capacity to distort the litigious process. Contributory negligence 97Secondly, there was no challenge to the finding of the trial judge that Roche Mining Pty Ltd ("Roche") had failed to establish contributory negligence on the part of the respondent: Jeffs v Rio Tinto Ltd at [123]. 98His Honour said that he obtained assistance from the fact that "inadvertence or inattention which resulted from familiarity and repetition or preoccupation with matters in hand and a need for concentration on those matters, did not amount to contributory negligence": at [121]. He referred to Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563 and McLean v Tedman . It is true that in McLean , the majority referred to a "well recognised distinction" between mere inattention or inadvertence and negligence: at 315 (Mason, Wilson, Brennan and Dawson JJ). However, both McLean and Ruprecht refer back to the judgment of Windeyer J in Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 at 37-38, where his Honour made clear two propositions: first, that inadvertence and negligence were not mutually exclusive concepts and, secondly, that in respect of contributory negligence, as in respect of negligence, the mental processes of the individual are relevant but not decisive, each being concerned with the conduct, rather than states of mind. 99The conduct which led to the fall was not entirely clear: it seems that the primary judge found that the respondent either in the course of reaching for the top rail with his left hand, or after he had grasped the top rail, grabbed at the shoulder strap of his bag, which had slipped off his right shoulder, broadly as described by the driver of the truck parked next to the respondent's truck. Unlike Ruprecht and McLean , which involved failure to observe the activities of a third party, all that the respondent was doing was climbing a ladder. It was not a repetitive function, nor a circumstance where other matters requiring concentration diverted attention. It was a case where an experienced worker, trained and capable in his work, conscious of the risks attendant on the task being undertaken, knowing the possible consequences of a fall, not having thought that the risk warranted complaint to his supervisor or manager, working on a vehicle manufactured by a major international firm operating globally, fell. These factors were relied on to challenge the finding of breach: see McColl JA at [46] above. 100The finding that there was no element of carelessness on his part, making him in any part responsible for the accident, bespeaks the application of an erroneous test. The mere fact that the risk which comes to pass is inherent in the system of work does not mean that the circumstances in which it comes to pass, on one occasion, do not involve contributory negligence, bearing in mind the test prescribed by s 5R of the CL Act. However, none of this affects the outcome of the appeal, because there was no challenge to the finding that the respondent was totally without responsibility for what happened. Duty of care 101Thirdly, this was not a case where any dispute arose but that Roche owed the respondent a duty of care. As correctly stated by the primary judge, the real issue was the content of that duty: at [85]. His Honour was also correct in identifying the duty as being "to exercise reasonable care in providing [the respondent] with a safe system of work and with safe plant with which to carry out his work": at [97]. Roche supplied the vehicles, one of which the respondent was required to drive. The height of the platform from which the driver gained access to the cabin of the vehicle was not clearly identified in the evidence: it should have been. However, it was said that the plaintiff fell approximately 2.5 metres, although which part of his body fell that distance is unclear. 102One factor to be borne in mind was that no claim of negligent design was brought against the manufacturer. Nevertheless, the experts identified "an inherent design weakness", which required a structural remedy, and was not adequately addressed by warning drivers of the need to maintain "three point contact" when climbing the ladder. 103His Honour recorded submissions by Roche that the fitting of transverse steps across the front of the vehicle was impractical and would involve "substantial expense": at [107] and [109]. Later he said that Roche did not submit that such action would be "unreasonably expensive", although he undertook an arithmetical exercise to show that the cost, while apparently substantial, was relatively minor when compared with the cost of a vehicle. 104Roche did not assert that it could not make substantial changes to the structure of the vehicle, but, more importantly, there was no evidence as to how old the vehicle was, nor its likely life expectancy. Although Roche complained about the absence of such evidence, it was evidence which Roche should have called. Further, the calculation which his Honour undertook in characterising the cost as "minor", was a comparison between the supposed cost of fitting a power-operated retractable stairway in 2002 and the cost of a new vehicle as at July 2010. (He accepted that the real figures were not known.) 105Although Roche appears not to have challenged this approach, it is not self-evidently well-founded in commercial reality. It is not likely that the operator would have assessed the cost in this way. Rather, it would have been likely to assess the expense either against the depreciating value of the vehicle, or as part of its operating costs and the profit margin available under the contract by which it operated the mine. No such evidence was called. 106The primary judge inferred that the recommendation to install stairways, contained in a "risk assessment/hazard study" undertaken in April 2003, including such a recommendation with respect to the plant in question, demonstrated that the authors of the report considered it not to be an excessive or expensive response to the risk. However, it related only to a risk of night time operation; the fact that it was not done could have led to a different inference. Absent evidence from Roche as to why the step was not taken, there is no basis for interfering with his Honour's finding. 107None of this is to suggest the conclusion of his Honour in this aspect of the case was wrong; rather the result carries no wider implications as to how such issues could or should properly be addressed. 108TOBIAS AJA: I agree with McColl JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2011