Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mungis (No 2) Pty Limited v Still [2011] NSWCA 261 Hearing dates: 5 August 2011 Decision date: 06 September 2011 Before: Basten JA at 1; Macfarlan JA at 2, Sackville AJA at 3. Decision: 1. Appeal dismissed. 2. Cross-appeal dismissed. 3. The appellant pay the respondent's costs of the appeal. 4. The respondent (cross-appellant) pay the appellant's (cross-respondent's) costs of the cross-appeal. [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 - safe system of work at factory - contract worker injured when compartment door of plastic thermoforming machine springs open under pressure - power to spindle inadvertently left on by worker thereby creating pressure on door - whether occupier breaches duty by failing to install an automatic switch shutting off power - whether occupier breaches duty by failing to instruct worker to use emergency buttons. CONTRIBUTORY NEGLIGENCE - whether worker guilty of contributory negligence by failing to turn machine off before opening compartment - whether primary Judge's apportionment of responsibility should be disturbed. Legislation Cited: Civil Liability Act 2002 Cases Cited: Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263, 53 MVR 502 McLean v Tedman [1984] HCA 60; 155 CLR 306 Shaw v Thomas [2010] NSWCA 169; [2010] Aust Tort Rep 82-065 Mobbs v Kain [2009]\ NSWCA 301; 54 MVR 179 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Category: Principal judgment Parties: Mungis (No 2) Pty Limited (in liquidation) (Appellant) Robert Leslie Still (Respondent) Representation: Mr J Sexton SC and Mr H Chiu (Appellant) Mr M Thompson (Respondent) Thompson Cooper Lawyers (Appellant) Gerard Malouf & Partners, Solicitors (Respondent) File Number(s): 2009/334577 Decision under appeal Date of Decision: 2010-07-21 00:00:00 Before: C Armitage DCJ File Number(s): 2009/00334577 Judgment 1BASTEN JA : I agree with Sackville AJA. 2MACFARLAN JA: I agree with Sackville AJA. 3SACKVILLE AJA : This is an appeal from a judgment of the District Court (Judge Armitage) entering a verdict in the sum of $226,793.20 for the respondent (Mr Still) against the appellant. The verdict was for damages for personal injuries sustained by Mr Still, an employee of a labour hire company, in a work-related accident at the appellant's factory. The appellant, a company now in liquidation, challenges the primary Judge's finding that it breached its duty of care to Mr Still. 4Mr Still has filed a cross-appeal in which he contends that the primary Judge erred in determining that he was guilty of contributory negligence and that he should bear 25 percent of responsibility for the accident. But for the finding of contributory negligence, the verdict in favour of Mr Still would have been $302,390.17. BACKGROUND 5Mr Still was born in Australia in 1957. He commenced employment with Trojan Workforce Pty Ltd ("Trojan"), a labour hire company, in September 2005. His work history included 20 years as a roof plumber and several years as an air-conditioning installer. 6In October 2005, Trojan assigned Mr Still to work at the appellant's factory at Huntingwood. The factory manufactured plastic packaging for fresh and take-away food. Mr Still was assigned to work at the appellant's premises as a general labourer and forklift driver. However, his duties included periodically removing rolls of scrap plastic from the waste compartments of plastic thermoforming (moulding) machines. The waste plastic was then available for recycling. 7The system of work required Mr Still to go to each of several machines a number of times throughout each eight hour shift and to remove the waste plastic. Mr Still had performed this kind of work for approximately six months. 8On 26 April 2006, Mr Still was injured when he attempted to open the access door of the scrap compartment of a particular thermoforming machine used to manufacture salad bowls (" machine P72 "). His intention was to remove a roll of scrap plastic from the compartment of machine P72. However, the access door flew open and struck him with considerable force, causing him to fall backwards and sustain injuries to his back, hip and leg. 9The function and operation of machine P72 were described in the report by Mr Underwood, an Occupational Health and Safety Mechanical Engineer, as follows: "A continuous sheet of plastic is progressively fed through the machine where it is systematically pressed between heated press platens which form the sheet into a three-dimensional form to the shape of the mould plates mounted on the platen. The most commonly manufactured product [sic] are shaped trays for food service and packaging. After the shapes are formed and pressed out of the sheet, the remaining web must be discarded. It passes into a scrap coiler compartment where the web is wound into a coil, the coil so formed being manually removed by the operator (being cut away from the in-feed web, removed from the machine and dumped into a waste bin). If the coil is allowed to accumulate into too large a roll, the coil drive air motor stalls, and the sheet ceases to enter the waste compartment. Additionally, the weight of the coil is increased so that it becomes a manual handling hazard for the operator charged with the task of removing it. ... When the scrap coiler compartment door is opened, the machine stops (including the coiler drive motor). Access to the control switch to advance and retract the ram on the roller mandril is only possible when the door is open." 10The following additional information, which is not controversial, is based in part on Mr Still's helpful written submissions. 11Machine P72 had a round metal plate installed, with a spindle fixed to and protruding from the plate's centre. (The spindle was also referred to in the evidence as a " ram ", " drum ", " long tube ", " air cylinder ", " web winder " and " web spinner ".) The plate had four holes, each positioned to accommodate one of four spines (also referred to as " web waste wheels " or " prongs "). The spines were fixed parallel to the spindle and protruded through the holes. When the machine was operating, waste plastic was wound onto the four spines as they and the metal plate rotated. The thermoform machines operated more or less continuously but were not always in use. 12The door to the waste compartment had a solid frame but a mesh inset. To remove a roll of waste plastic from machine P72 the operator first opened the door by means of a T-shaped handle. This activated a trip switch which automatically cut power to the plate, which thereupon stopped rotating. The operator then turned an in/out lever (also referred to as an " auto release switch " or an " in/out switch ") to the " out " position. This caused the plate to move forward under pneumatic pressure, thereby pushing the waste plastic off the spines so that the roll of plastic waste came to rest on the spindle. 13As the plate moved forward, the spindle also moved forward. In the fully extended position, the spindle protruded beyond the line of the doorway. When the spindle was extended, the operator cut the waste from the spindle and removed it. If it was intended to restart the machine, the operator would set a fresh roll in place. Finally, the operator turned the in/out lever back to the " in " position, causing the plate and spindle to retract into the waste compartment, and shut the compartment door. 14Machine P72 had four switches or levers. The first was the trip switch which automatically cut power to the plate and prevented it rotating. As I have indicated, the trip switch was activated by opening the door to the waste compartment. However, cutting power to the plate did not stop the in/out lever being turned to the " out " position so as to cause the plate and the spindle to extend outwards under pneumatic pressure. 15The second lever was the " in/out " lever. This was located just below the frame of the waste compartment, inside the door. The lever could be moved along a horizontal axis to the left (the " in " position) or to the right (the " out " position). The words " IN " and " OUT " seem to have been painted on the frame of the compartment, immediately above the in/out lever. 16The third switch on machine P72 was the emergency switch. This was installed on the outside of a separate compartment located immediately above the waste compartment. There appears to have been no evidence as to the precise height at which the emergency switch was located, but photographs show that it was well below the height of an operator standing next to it. The emergency switch could be used to disable the machine, including the pneumatic mechanism driving the plate and the spindle. It could be activated without opening the door to the waste compartment. 17The fourth switch was the main power switch, located towards the other end of machine P72. Machine P72 was apparently about eight metres in length, but the evidence suggested the main switch was located several metres from the waste compartment. If the main switch was turned off, the effect was the same as if the emergency switch was activated. That is, the machine would be disabled, including its pneumatic systems. 18On the day of the accident, but some time before it occurred, Mr Still removed waste plastic from machine P72. On this particular occasion, power to the machine had been turned off, presumably at the main switch. Accordingly, the pneumatic mechanism was inoperative. 19Mr Still opened the door of the waste compartment and removed waste plastic from the spindle while the spindle was in the retracted position. In the course of doing so, he reached into the compartment and moved the in/out lever to the " out " position. There was no practical purpose to be achieved by this movement as the pneumatic systems had been turned off and Mr Still was not seeking to extend the spindle. Mr Still's explanation was that " it was a natural reaction to reach in the machine and turn the switch ". 20After removing the waste plastic from the spindle, Mr Still closed the compartment door. He admitted that he inadvertently left the lever in the " out " position. Of course, if the pneumatic systems had been operating, moving the lever to " out " would have resulted in the spindle moving forwards until it protruded beyond the door. In these circumstances, Mr Still would not have been able to close the door without moving the lever to " in ". In other words, he was able to leave the lever in the " out " position because at that time machine P72, including its pneumatic mechanisms, had been switched off. When asked why he had not returned the lever to the " in " position Mr Still said that he simply did not think to do so at the time. 21At some stage after Mr Still removed waste plastic from machine P72 in this way, power to the machine was restored. The evidence did not identify who switched on the power. However, one effect of restoring power was to activate the in/out lever, which Mr Still had left in the " out position, so that the spindle extended under pneumatic pressure. 22While Mr Still was working at a nearby machine he noticed through the mesh on the waste compartment door of machine P72 that waste plastic had accumulated in the compartment. Mr Still observed that the waste plastic was even protruding between a gap in the closed door of the compartment and the machine's casing. He then, in his own words, raced over to the machine, got on his haunches and attempted to open the compartment door. He twisted the handle on the door, but found that it was jammed because of pressure from inside the compartment. Mr Still then used the palm of his hand to push the door inwards so as to release the locking pins that had apparently jammed. 23This manoeuvre enabled Mr Still to turn the handle of the door. However, as he did so, the door flew open and struck him on the knees, knocking him to the concrete floor. The door was forced open in this way because the spindle was in the extended position and pressed against the door on the inside. As a result Mr Still suffered the injuries for which he was awarded damages. PRIMARY JUDGMENT 24The trial occupied six hearing days. The primary Judge delivered what he described as " more or less ex tempore reasons " the day after the hearing concluded. 25The transcript of the judgment is 63 pages in length. However, the primary Judge had to deal with a number of matters that are now no longer in issue. It is necessary to refer briefly to one of those matters. 26It was part of Mr Still's case that the appellant had breached its duty of care by failing to fit machine P72 with an automatic in/out lever that returned to the " in " position whenever the operator's hand was removed. Mr Still contended that if the automatic lever had been fitted, the accident could not have occurred because the lever could never have been left in the " out " position. 27The appellant's principal answer to this contention was that an automatic lever had indeed been fitted to the machine before the alleged accident and that therefore the accident could not have occurred in the manner described by Mr Still. It was common ground at the trial that if an automatic lever had been fitted to machine P72 as the appellant asserted, Mr Still could not succeed in his claim for damages. 28The primary Judge rejected the appellant's contention and found that an automatic lever was not fitted to machine P72 until after the accident. His Honour, in making this finding, accepted Mr Still's evidence as to how the accident occurred. The finding is not challenged on the appeal. 29Although the appellant's principal defence was that the automatic lever had been fitted to the machine at the time of the accident, it advanced an alternative defence. It submitted to the primary Judge that, even if the automatic lever had not been fitted to the machine, it had not breached its duty of care. The appellant contended that it could not have foreseen that an operator would negligently leave the in/out lever in the " out " position and subsequently attempt to open the door with the lever in that position. The appellant relied on the fact that it had never previously experienced an incident of this kind. 30The appellant also submitted at the trial that it had done all that could reasonably be expected of it to prevent an accident of this kind occurring. In particular, it relied on the availability of the red emergency button immediately above the waste compartment as a reasonable precaution in relation to any risk presented by pressure building up in the machine, whether through inadvertent extension of the spindle or otherwise. Had Mr Still pressed the emergency button, the machine would have stopped and the accident would have been prevented. Furthermore, any warning to Mr Still about the dangers of the spindle exerting pressure on the door would have been of no use because he had admitted that opening the door was a reflex action on his part to stop the overflow of waste plastic. 31The primary Judge noted that the duty of care owed by a manufacturer towards an independent contractor working on the manufacturer's premises is not co-extensive with the duty of care owed by an employer to an employee in similar circumstances. Nonetheless, in a case where an independent contractor alleges that the manufacturer has failed to exercise reasonable care to provide a safe system of work and the independent contractor had no control over the work place or the system of work, his Honour considered it appropriate to apply the principle stated by Mason J in Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672. Mason J said (at 687) that a non-delegable duty of care arises where a person: "has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised." 32His Honour also quoted the observations of Mason J in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40, at 47-48, as follows: "The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty, and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard response to be ascribed to the reasonable man placed in the defendant's position." 33His Honour said that he had been careful to apply this passage. He did not refer to s 5B of the Civil Liability Act 2002 (NSW) (" Civil Liability Act ") which prescribes in similar terms the matters that a court must take into account in determining whether a person has been negligent in failing to take precautions against a risk of harm. 34His Honour, in the context of considering whether machine P72 had been fitted with an on/off lever, found that Mr Still had been a reliable and careful witness. He also found that there was no evidence that Mr Still had been given specific instructions in the operation of the machine. In particular, he had not been given instructions as to the dangers of opening the compartment door when the machine was in operation. Nor had Mr Still been instructed as to: "the need to use the emergency stop button in the event of plastic building up insider the door [or] any malfunction occurring within the compartment when waste plastic was collected." 35The primary Judge rejected the appellant's submission that reasonable care did not require instructions of this kind to be given. In his Honour's view: "it was open to the [appellant] to take [Mr Still] around the machine and show him the emergency stop button and tell him, although this may perhaps have appeared obvious, that it should be used in the event of any malfunction of the machine, rather than attending the malfunction in some other way, as [Mr Still] did. It seems to me that reasonable care required instruction of that kind, and that indeed if it did occur, that [Mr Still] as a careful man - as he seemed to me to be in his evidence and as the [appellant] described ... would more likely than not have obeyed it." 36The primary Judge accepted Mr Still's submission that the appellant, with reasonable care, should have appreciated that there was a substantial risk that the compartment door would be closed while the in/out lever was in the " out " position. If that occurred, there was a danger that pressure would be applied to the compartment door and that the operator would suffer injury if he or she attempted to free a build-up of waste plastic by opening the door. His Honour found that installation of an automatic in/out lever was a simple, cheap and practical step that could readily have been taken by the appellant before the accident occurred. 37His Honour acknowledged that s 5C(c) of the Civil Liability Act provides that the taking of an action after an accident that would have avoided a risk of harm does not of itself give rise to liability in respect of the risk and does not constitute an admission of liability. However, this did not mean that the action taken after an accident was entirely irrelevant on the question of liability. The question was whether a simple precaution that was taken after an accident could and should have been taken beforehand. His Honour answered the question as follows: "It seems to me that anybody who examined a switch without a spring-loading arrangement, even without particular expertise, could perceive that there was a danger that if the switch was inadvertently left in the 'out' position when the compartment door was closed, a build up of plastic material, because of the operation of the ram, could occur, such that [sic] it did when [Mr Still] was injured, and that someone attending the machine might attempt to open the door to free that jam. Such a build up would then mean that the machine was out of production for a period which ... would have expensive consequences for the defendant. One might think that in these circumstances [Mr Still] was placed in an 'agony of the moment' situation where he had to react very quickly to the emergency which confronted him. The simple way to avoid this would have been to fit a switch with a spring loaded mechanism, such was done after the accident. I think reasonable care required that it be fitted before the accident ... I think the availability of an emergency stop button immediately adjacent to [Mr Still's] workplace is a matter that goes to contributory negligence, and is not a complete answer to [Mr Still's] allegations of negligence, because a switch of the type that was fitted after [Mr Still's] accident was required by the exercise of reasonable care before [Mr Still's] accident. 38The primary Judge also accepted Mr Still's submission that the accident could have been avoided by: * forewarning Mr Still that leaving the in/out lever in the " out " position while the machine was not in operation and then closing the door could result in the spindle pressing against the door when the machine was restarted, with the attendant risk of injury if the door was opened in an attempt to free a blockage or remove waste plastic; and * instructing Mr Still to use the emergency button to put the machine out of operation before opening the door to clear any blockage. 39His Honour also accepted that since the appellant was in a position of particular responsibility for Mr Still's safety, the exercise of reasonable care would have involved each of these measures as part of Mr Still's training. Had either or both of these steps been taken, they probably would have prevented Mr Still acting as he did, despite his concession that what he did at the time of the accident was a " reflex action ". 40The primary Judge dealt with the question of contributory negligence as follows: "The primary responsibility for the accident, to my mind lies at the feet of the [appellant] in its failure to provide a safe system of work in failing to instruct [Mr Still] properly in the dangers of opening the door or in the necessity to use the emergency stop button, and in its failure to provide an appropriate spring-loaded switch before [Mr Still's] accident, as opposed to after it. [Mr Still] nevertheless contributed to a substantial degree to his own injuries. Even uninstructed, [Mr Still] should have appreciated that an emergency switch button, placed immediately proximate to his place of work, which he must have seen on the many occasions when he used the machine over many months before the accident, would have been a safe way to stop the machine and remove the build up of plastic. It is understandable that in what might be called the agony of the moment, as I have described it, [Mr Still] failed to employ that means of stopping the machine. The fact that he did not do so however does not mean that blame for his accident does not also attach to him. I think it does. The question of assessment is a difficult matter, and I first considered that [50 per cent] was the appropriate assessment of contributory negligence, but I now think I must give some weight to the submission ... that [Mr Still] was faced with what was, in effect, an emergency situation where ... the bringing of the machine to a halt was going to cost the company a significant amount of money, depending on how long it was out of service, and where a build up of plastic was very rapidly developing inside the compartment, and where he reasonably thought, I think, that he was required to do something in a hurry. I think that the fact that he did not take reasonable care for his own safety in these circumstances does not amount to equal responsibility for the accident in view of the urgency of the situation with which he was faced. ... [Mr Still] performed the task in question many times safely, and he must have seen the emergency stop button many times ... It was certainly immediately beside his work station. The fact that he did not use it, I think, amounts to failure to take reasonable care for his own safety, but as I have said, I do not think he should bear equal responsibility for the accident. In all of the circumstances, I think 25 per cent is an appropriate deduction for contributory negligence." SUBMISSIONS Appellant's Submissions 41The appellant did not challenge the primary Judge's formulation of the duty of care owed by it to Mr Still. Nor did it submit that the risk of harm from the door opening suddenly under pressure was not foreseeable. However, it did submit that the primary Judge should not have found that a reasonable person in the appellant's position would have taken any of the precautions identified by his Honour. 42Mr Sexton SC, who appeared with Mr Chiu for the appellant, pointed out that this accident required a combination of circumstances to occur. The circumstances were these: * Mr Still removed waste from machine P72 when the machine was off; * although there was no point in doing so, Mr Still moved the in/out lever to " out "; * he then forgot to move the lever to the " in " position; * subsequently, somebody switched machine P72 back into operation, thereby activating the pneumatic spindle; * on noticing that machine P72 was malfunctioning, Mr Still did not use the emergency button (or main switch) to turn off all power; * nor did he switch off the machine when he realised the door was jammed shut by pressure from behind; and * notwithstanding this knowledge, Mr Still pushed at the door so as to relieve the pressure and allow him to open it. 43Mr Sexton accepted that inattention, inadvertence and wrong decision-making are factors to be considered in determining what precaution a reasonable person would take. The appellant did not know and could not be expected to have known that even if the lever was left in the " out " position, a worker would attempt to force the compartment door open instead of shutting the machine down entirely. Such conduct by Mr Still was not merely careless but unreasonable. 44Mr Sexton submitted, for similar reasons, that a reasonable person in the position of the appellant would not have installed an automatic in/out lever, notwithstanding that it would have been inexpensive to do so. Mr Still could have avoided the harm which befell him in a number of ways: by returning the lever to the " in " position; by switching off the machine before attempting to open the compartment door; and by pressing the emergency button once he realised that there was a build up of pressure inside the compartment. The risk of harm could only materialise if he failed to take advantage of any of these opportunities to avert the harm. 45Mr Sexton submitted that, insofar as the primary Judge found that the breach of duty comprised a failure to warn Mr Still of the danger, there was a case of an " obvious risk " within s 5H of the Civil Liability Act . Accordingly, the appellant did not owe a duty of care to Mr Still to warn him of the risk. In any event, even if s 5H did not apply, a reasonable person in the appellant's position would not have taken the precaution of telling an experienced worker that in the event of an emergency he should activate the emergency button. Mr Still's Submissions 46Mr Thompson, who appeared on behalf of Mr Still, sought to uphold the primary Judge's reasoning in finding the appellant liable to Mr Still. 47Mr Thompson contended on the cross-appeal that the primary Judge had not given sufficient weight to the fact that the emergency button was not immediately proximate to Mr Still when he attempted to open the compartment door as at that point he was on his haunches. His Honour also did not have regard to Mr Still's evidence that he did not appreciate that the door would fly open once he managed to release the locking pin. According to Mr Thompson, Mr Still's actions amounted to no more than an error of judgment in a sudden emergency and could not be characterised as negligent. REASONING The Appeal 48The appellant does not suggest that the primary Judge stated or applied the wrong principles when considering the nature of the duty of care owed by the appellant to Mr Still. Nonetheless it is useful to identify the content of the duty by reference to an authoritative statement of principle. 49In Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1, the High Court quoted with approval (at [20]) Brennan J's statement of principle in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16, at 47-48: "An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur." 50In the present case, as his Honour found, Mr Still had no control over the system of work, the machinery used in the manufacturing process or the manufacturing process itself. All of these were under the exclusive control of the appellant. It was therefore under a duty to exercise reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. 51The duty of care arises under the general law. However, a court cannot make a finding of breach of duty for failing to take precautions against a risk of harm unless the three pre-conditions set out in s 5B(1) of the Civil Liability Act are satisfied: Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263, 53 MVR 502, at [173], per Campbell JA (with whom McColl JA and Sackville AJA agreed). 52Section 5B provides as follows: "(1) A person is not negligent in failing to take precautions against 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." 53The central plank in the appellant's argument on s 5B of the Civil Liability Act was that Mr Still knew that something was exerting pressure on the door and that a reasonable person in his position would have activated the emergency stop button. In these circumstances, so it was argued, a reasonable person in the position of the appellant would have regarded the emergency button as an adequate precaution against the risk of injury. There are, however, a number of difficulties with this submission. 54First, as Mr Sexton recognised, a reasonable person may be expected to take precautions to avoid injury to another person that might occur because of the latter's inadvertence or failure to take care for his or her own safety: McLean v Tedman [1984] HCA 60; 155 CLR 306, at 311, per Mason, Wilson, Brennan and Dawson JJ. That is particularly so when considering the precautions a reasonable person in the appellant's position would take against a risk of harm to Mr Still as an independent contractor who had no control over the system of work. 55Secondly, the appellant's submissions appeared to suggest that Mr Still must have appreciated, as he pushed on the compartment door in order to open it, that the extended spindle was the source of the pressure. Mr Still, whom his Honour regarded as a truthful witness, said that he did not know what the problem was. "Q. But you tried to turn the handle on it is that right? A. Yes. Q. And it wouldn't open? A, Correct. Q. At that time you didn't know what the problem was did you? A. No I did not. Q. If the problem was because the air cylinder was pressing against the door you could've seen that from outside the machine couldn't you? A. No not necessarily because the plastic was, it was black plastic and it was pushing against the screen mesh so I did not know whether it was, the plastic had jammed up somehow or whether the cylinder - I never even thought the cylinder was pushing against it. Q. So at the time of you opening this door you never even thought there was a problem with the cylinder pressing against the door? A. No I didn't know what the problem was. ... Q. And you were pulling on that door to open it yes? A. No I was pushing on it. Q. Pushing on it? A. Yes. Q. And then as you managed to move the latch it became free? A. Yes. Q. And you tumbled backwards? A. Yes the door spun open under pressure. Q. You say under pressure, it was being pushed by plastic? A. Well that's what I thought it was but it was the cylinder that was pushing against it. Q. Well you say this, at the time it happened you thought it was plastic pushing against the door? A. I didn't know what the problem was at the time. Q. But you said it was plastic-- A. I said there was black plastic up against the wire mesh-- Q. --up against the door? A. Yes." 56Thirdly, the appellant gave Mr Still no specific instructions in the operation of the machine, nor as to the steps he should take when the machine was overflowing with plastic waste. Mr Still was not told to use the emergency button in the event of a machine malfunction and was not instructed to leave the door closed until the machine was turned off. Had instructions of this kind been given clearly to Mr Still, it might be said that the appellant had taken reasonable precautions against the risk of injury from the compartment door opening suddenly under pressure from the extended spindle. But no such instructions were given and Mr Still was required to deal with the situation confronting him without the benefit of any relevant training. 57Fourthly, there was a simple, inexpensive means of eliminating the risk created by an operator inadvertently leaving the in/out lever in the out position. Nor surprisingly, the appellant did not dispute that the risk of harm from the door opening suddenly could easily have been eliminated. Nor did the appellant dispute that it knew at the time of the accident that the risk could have been eliminated by a simple mechanical device. Its principal case at trial, rejected by the primary Judge, was that it had fitted machine P72 with an automatic in/out lever before the accident. This is not a case of a plaintiff who, with the benefit of hindsight, seizes on a precaution that might have prevented the particular accident and that was adopted by the defendant as a response to the accident. 58Fifthly, contrary to the appellant's submissions, the risk of injury arising from the spindle pressing against the compartment door could not be regarded as remote or, in the language of s 5B(1), insignificant (as to which see Shaw v Thomas [2010] NSWCA 169; [2010] Aust Tort Rep 82-065, at [44]-[46], per Macfarlan JA, with whom Beazley and Tobias JJA agreed). It is true that for the injury to have occurred, a combination of circumstances was required. But that is often the case where a court finds that a defendant has breached its duty of care by failing to take reasonable precautions to prevent injury. 59There was no error in the primary Judge finding that the appellant should have appreciated that there was a substantial risk that a worker would close the compartment door while the machine was off and the lever was turned to the " out " position. Nor was his Honour in error in finding that inadvertently leaving the lever in the " out " position would create a danger of injury if someone attempted to open the door while it was subject to pressure from the spindle. The first step a worker would ordinarily take when the machine was in operation, after opening the compartment door, was to move the lever to " out " in order to facilitate removal of the waste plastic from the spindle. As Mr Still said, it was a " natural reaction " to do the same thing even when the machine was switched off. Indeed it was presumably precisely because the appellant appreciated this possibility that it maintained (wrongly) that an automatic lever had been fitted to the machine before the accident occurred. 60Since moving the lever to " out " when the machine was switched off had no discernable effect on the spindle, there was also a real or significant chance that a worker, particularly if under time pressures, would overlook the need to correct his or her initial error. When Mr Still was asked why he did not return the lever to " in ", he said simply that he " just didn't think about it at the time ". 61Once the compartment door to machine P72 was shut with the spindle retracted, but the lever in the " out " position, the situation was fraught with potential danger. If the machine was turned on, whether by the worker who made the initial error or someone else, the spindle, under pneumatic power, would press against the door. Anyone attempting to open the door with the spindle pressing against the door was at risk of injury. 62No doubt it would have been obvious to a worker observing an overflow of plastic in the waste compartment that something was amiss with the machine. If the worker approached the machine, as Mr Still did, it presumably also would have been obvious that something was exerting pressure on the door. But Mr Still's evidence shows that it was not necessarily obvious to an untrained and uninstructed worker that the cause of the pressure was not merely an accumulation of waste plastic, but the spindle pressing against the compartment door. 63In my opinion, the primary Judge was correct to find that the appellant had breached its duty of care to Mr Still by failing to take the simple precaution of fitting an automatic in/out lever to machine P72. His Honour was also correct to find (as he implicitly did) that Mr Still satisfied the preconditions set out in s 5B(1) of the Civil Liability Act. The evidence established that the risk of harm from opening the compartment door when it was under pressure from an extended spindle was a risk of which the appellant should have been aware (and probably was aware); that the risk of harm was not insignificant; and that a reasonable person in the appellant's position would have taken the precaution of installing an automatic in/out lever. The appellant did not dispute that if this precaution had been taken, the accident would have been avoided and that its negligence caused Mr Still to suffer injury. 64This is enough to dispose of the appeal. However, I should record that in my opinion the primary Judge was also entitled to find that the appellant breached its duty of care by not instructing Mr Still to engage the emergency button in the event of a malfunction of the machine, including an apparent overflow of plastic waste. This, too, was a simple measure that could have been taken to deal with the risk of harm which I have identified earlier. 65Mr Sexton submitted that his Honour should not have found that Mr Still would have heeded such a warning, had it been given. Mr Still frankly agreed in evidence that it probably would have made no difference had he been told not to leave the lever in the " out " position. However, in response to a question from his Honour as to how an instruction would have influenced his behaviour on the day of the accident, Mr Still said that he had never been told the consequences of leaving the lever in that position. (No submission was made that Mr Still's answers were inadmissible: cf Civil Liability Act, s 5D(3)(b)). 66The primary Judge found, having seen Mr Still give evidence, that he was a careful person and would have followed an instruction that, in the event of a malfunction, he should use the emergency stop button. There was no error in this finding. Cross-Appeal 67Section 5R of the Civil Liability Act provides as follows: "(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time." 68The primary Judge did not expressly refer to s 5R in his reasons. However, Mr Still did not contend that his Honour failed to apply the correct principles. His submission, in substance, was that his conduct in persisting in attempting to open the compartment door when it was under pressure should be characterised as " mere inattention or inadvertence " rather than a failure to adhere to the standard of care required of a person in his position: McLean v Tedman at 315, per Mason, Wilson, Brennan and Dawson JJ. 69The primary Judge expressly recognised the difficulty of the situation confronting Mr Still, particularly having regard to his lack of training. His Honour also took into account the fact that Mr Still did not appreciate at the time he opened the compartment door the true reason for the apparent build-up of pressure and that he was operating in circumstances of urgency. But it was open to his Honour to find that a reasonable person in Mr Still's position should have taken the sensible precaution of switching off the machine before attempting to force open the compartment door. 70The primary Judge pointed out that Mr Still, despite his lack of training, had attended to the machines over a considerable period. He must have known of the emergency button and, for that matter, of the master off switch. While he did not realise the precise nature of the problem, a reasonable person observing an apparently sudden build up of plastic and then encountering difficulty opening the compartment door because of internal pressure of some kind, could reasonably have been expected to have turned the machine off before proceeding further. Such a person should have appreciated that the very uncertainty as to the source or cause of the pressure created a risk of injury if he or she continued to force the door open. I see no error in the primary Judge's characterising Mr Still's conduct as negligent rather than merely inattentive or inadvertent. 71The role of an appellate court in relation to a trial judge's apportionment of responsibility for damage negligently caused was explained by McColl JA (with whom Macfarlan JA agreed) in Mobbs v Kain [2009] NSWCA 301; 54 MVR 179, at [113]: "Since the degree of liability due to a plaintiff's contributory negligence is a question not of principle or of positive findings of fact or law but of proportion, of balance and relative emphasis and of weighing different considerations all of which involve an individual choice or discretion as to which there may well be differences of opinion by different minds, such a finding, if made by a judge, is not lightly reviewed: Mousa v Marsh [2001] NSWCA 317 (at [12]) per Sheller JA (with whom Powell and Heydon JJA agreed). Accordingly, to set aside an apportionment of liability it must be shown that the failure to exercise the discretion involved in the apportionment exercise properly was unreasonable or plainly unjust: Rolls Royce Industrial Power (Pacific) Ltd v James Hardie &Co Pty Ltd [2002] NSWCA 461; (2001) 53 NSWLR 626 (at [60]) per Stein JA with whom Davies AJA agreed (at [189]); see also (at [172]) Fitzgerald AJA." 72The primary Judge compared the culpability of the appellant and Mr Still and assessed their roles in bringing about Mr Still's injury: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492, at 494, per curiam. While some judges might have weighed the balance a little more in Mr Still's favour, he has not shown that the exercise of the primary Judge's discretion was unreasonable or plainly unjust. CONCLUSION 73The appeal and cross-appeal must be dismissed. The appellant should pay Mr Still's costs of the appeal and Mr Still should pay the appellant's costs of the cross-appeal. It is appropriate to record that the cross-appeal occupied only a small proportion of the hearing of the appeal. ********** 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: 06 September 2011