(d) negligence - Baden
33The trial judge dealt with this question under the heading "Case against Baden", in a lengthy passage at [112]-[162]. After stating the relevant legal principles the following conclusion, to be explained later, was expressed at [115]:
"In summary, in my assessment, Mr Smith, as a crane operator, has established that Baden owed him a duty to exercise reasonable care to warn of the risk of collapse which its modifications of the crane had created, so that he would not be exposed to an unreasonable risk of injury."
34Significantly, in the light of later statements, the burden of proof was correctly placed on the plaintiff. In what may also be treated as part of the summary of her conclusions, the trial judge continued at [116]:
"Given the risk of catastrophic damage to the crane which Baden had created by its modification ... there can, in my view, be no question about the duty of care which arose and the foreseeability of the risk in question, in the s 5B(1)(a) sense."
35The following passages addressed a number of issues, including the submission made by Baden that in modifying the crane to allow use of a dolly, it had followed specifications provided by Liebherr. Although this proposition was entirely plausible, the trial judge found that it had not been established on the evidence. However, even if it had been, it is by no means clear that it was relevant to the issue of knowledge of risk. Other statements in the reasons assumed, rather than demonstrated, knowledge of the risk: eg, at [129]. Those passages which did address the question of knowledge appeared to reverse the onus of proof. Thus the trial judge reasoned:
"133 While Baden did lead expert evidence, as did Brambles, no expert expressed the view that on the information available to Baden, given the nature of the work it had undertaken, that Baden could not have been aware of the risk which resulted from the modification it had made. ...
134 Baden produced the modification Brambles desired, which permitted the crane to be transported by road, without disassembly. In doing so Baden had a duty to warn of any risks its modifications introduced, particularly of the inordinate risk of the crane collapsing, which had been created by those modifications. That it did not have sufficient information from Liebherr to understand the nature of the risk it had created, was, in my view not established. ... [G]iven the work it undertook, Baden had reason to know of the risk and to warn of its creation.
135 ... The operational change which those modifications made to this machine was very significant. Baden accepted that new dangers which had not previously existed were thereby created. I am unable to accept that those dangers were not apparent to Baden, from the nature of the work it had undertaken on the crane."
36At this point in the reasoning, under the heading "Duty of care", there appears to have been an assumption that Baden understood the strength of the locking pins and the forces which would be applied to them in the event that the slew lock was not released prior to travel. When addressing breach, the reasons referred to a submission that "no evidence had been called as to what a reasonable repairer in its position would have known about the risk of the dowel rods shearing" and acceptance that the plaintiff bore the onus of proof on that issue: at [149]. In what appears to be a continuation of the submission, the trial judge said at [150]:
"It was not accepted that as a matter of logic, given the nature of the crane and what the modifications achieved, that it was obvious that the rods would shear, from the force applied to them, if the brake was not released before the crane was driven. The question had to be determined on the basis of what was known before the accident occurred, not with the benefit of hindsight. There was no suggestion that the rods, while thin, were not fit for their intended purpose."
37That submission was not adequately addressed. The finding at [151] was to the following effect:
"On the evidence, given the modification work it had undertaken, it seems to me, that a reasonable person in the position of Baden ought to have warned that if the brake was not released, the rods would shear if the crane was driven."
Again, the evidential basis for the conclusion, beyond knowledge of the nature of the modifications, is missing. The reasoning also failed to address the evidence of the plaintiff, which appeared to be accepted, that he had commenced to drive without releasing the slew lock on prior occasions, without catastrophic results.
38The conclusion as to breach was then stated in the following terms at [155]:
"Inadvertent failure to activate the switch could not be excluded, in the absence of any mechanical warning of the need to do so. In that event, absent any information or warning of the need to check that the crane had not been damaged, so that a catastrophic collapse would result, if it was operated, without activating the switch, the risk of serious injury to which operators such as Mr Smith were exposed, was foreseeable and indeed obvious. By failing to provide such information and warning, Baden breached its duty to Mr Smith and the owners of the crane."
39The particulars of negligence pleaded against Baden, although somewhat confused in expression, involved two elements. The first was a failure "to modify the crane for transportation to incorporate necessary safety features": second amended statement of claim, par 14(b). These appeared to be further particularised in par (f) as follows:
"(i) increase the lock pins on the slew ring to ensure the slew ring could not come apart by a force produced by the dolly;
(ii) failed to provide a system allowing for a visual inspection of the slew ring;
(iii) failing to provide any warning system to alert the operator to the fact that all the steps required to prepare the crane for being driving on the dolly had not been undertaken;
(iv) failed to provide a safety device which would provide a warning if the hydraulic pump switch were not activated; and
(v) failed to provide a kill switch to ensure the vehicle could not be driven if the appropriate steps to prepare the crane to be driven on the dolly had not been undertaken."
40It was also pleaded that Baden failed to provide adequate information and warnings as to the risk if the slew lock were not released: par 14(a), (c), (d) and (e).
41These two elements of the pleading were not separately addressed in the reasons given by the trial judge. Further, the final conclusion at [155] as to the need for "information and warning" was not sustainable in the absence of some greater clarity as to the how the information should have been provided or the warning given. On the other hand, the need for information or warning appears to have been accepted as consequent upon the absence of any "mechanical warning" of the kind identified in the particulars.
42To determine the appeal it is necessary to make findings as to the content of the proposed duty of care owed by Baden to the plaintiff. The plaintiff's case was based on the proposition that in order to allow the crane to be transported without disassembly and by means of a dolly supporting the superstructure, a number of modifications were required. The first involved the design and construction of an appropriate dolly, together with the means by which the boom of the crane would be affixed to it whilst in transit and released when the crane arrived on site. Secondly, it was necessary to ensure that the boom could move freely as the vehicle travelled, both in horizontal and vertical planes. Baden made all the necessary modifications to allow this method of transport to occur. At least as a matter of inference, it could be found that Baden knew enough about the structure and operation of the crane to understand that if the relevant braking mechanism were not released, significant torque would be applied at various points, including, with respect to movement in the horizontal plane, the slew ring. It may also be inferred that Baden knew how the two parts of the crane were held in place during operation and knew of the locking pins which prevented disassembly. On the basis of the engineering reports, it may also properly be inferred on the probabilities that Baden knew or ought to have known that significant stress would be applied to the locking pins if the slew ring braking mechanism were not released prior to travel. The possibility that such an event could occur was foreseeable to a company which understood the operation of such a crane.
43Greater difficulty arises as to the next stage of the plaintiff's case, namely that Baden knew or ought to have known of the possibility of the locking pins shearing if a driver sought to move the vehicle more than a small deviation from a straight line without activating the mechanism to release the slew lock. The absence of direct evidence is not, however, fatal to the plaintiff's case. Once it is accepted that Baden knew exactly how the mechanism worked, what was required of the crane driver, and that the operator might on occasion fail to release the slew lock, it is reasonable to find that Baden ought to have made inquiries of Liebherr as to the possible consequences of a failure to release the slew lock. If informed of a significant likelihood of damage, or that damage was not readily assessable, Baden's duty would have extended to considering a failsafe mechanism such as a warning light or a locking device which prevented the crane being moved once the boom was attached to the dolly without the slew lock being released, or a mechanism to allow the crane operator to determine whether the crane had been damaged if it were able to be moved without releasing the slew lock.
44In these circumstances, the conclusion as to the negligence of Baden should be upheld, but on the basis of a failure to provide a mechanical system which would either have precluded the crane being driven without the slew lock being released, or would have provided a means for identifying any damage which resulted from inadvertent failure to release the slew lock. Either of these alternatives would satisfy the criteria in s 5B(1).
45This conclusion obviates the need to address the complaints raised by Baden as to the finding with respect to causation. That finding was expressed in the following terms at [159]:
"The evidence I have referred to does not leave room for doubt that factual causation was established against Baden. It made the modifications which resulted in the risk that the crane would collapse, if driven without the switch first being activated. It did not warn of the risk, or provide information either as to how safe operation of the crane depended on operator memory, that is remembering to activate the switch, before driving the crane; or that failure to do so could result in catastrophic damage to the crane. That risk materialised on the day of the accident."
46Adequately to address causation in respect of a warning or supply of information, required identification of the content of the warning, together with the manner and timing of its provision. Those issues do not arise once it is accepted that Baden's negligence depended upon one or more of the mechanical modifications identified above. The adoption of one of the alternative modifications would have prevented the accident. Failure to take such precautions would satisfy s 5D(1)(a), subject to the impact of negligent conduct of other parties addressed at [66]-[73] below.
47The remaining issue in respect of Baden's appeal concerns the proper apportionment of responsibility between the defendants and between them and the plaintiff. That will be addressed after considering the situation of the other defendants.