Benton v Scott's Refrigerated Freightways

Court of Appeal (NSW)|2008-04-03|Before: Campbell JA, Bell JA, McDougall J, Dougall J

CITATION: Benton v Scott's Refrigerated Freightways [2008] NSWCA 143

JUDGMENT OF: Campbell JA at 1; Bell JA at 109; McDougall J at 110

CATCHWORDS: TORT - negligence - duty of care - professional driver injured while alighting from vehicle owned by Respondent - where Respondent was not the employer of Appellant driver - nature of duty of care owed by Respondent to Appellant - whether relevant difference between duty Respondent owed Appellant in its capacity as owner of the vehicle and the duty it would owe if it were the employer of the Appellant - whether trial judge erred in finding that duty had not been breached - whether trial judge gave sufficient reasons for judgment - PROCEDURE - pleadings - defective pleadings - statement of claim - Uniform Civil Procedure Rules 14.7 and 14.19 - material facts which must be stated for a claim under s 151Z(2)(c) and s 151Z(2)(d) Workers Compensation Act 1987 - necessity of pleading failure to pass permanent impairment threshold set by s 151H Workers Compensation Act - whether consensual abandonment of pleadings by the way the parties conducted their case - EVIDENCE - witnesses - whether effect of decision in Jones v Dunkel is to require or merely licence the drawing of inferences when a witness is not called - COSTS - consequences of failure of appeal on liability - whether deficiencies in defendant's pleading would make any difference to usual order as to costs

Evidence Act 1995 Law Reform (Miscellaneous Provisions) Act 1965 LEGISLATION CITED: Motor Accidents Compensation Act 1999 Uniform Civil Procedure Rules Workers Compensation Act 1987

Andar Transport Pty Ltd v Brambles Pty Ltd [2004] HCA 28; (2004) 217 CLR 424 Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 CASES CITED: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liquidation) [1916] HCA 81; (1916) 22 CLR 490 J Blackwood & Son Limited v Skilled Engineering Limited [2008] NSWCA 142 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 London Passenger Transport Board v Moscrop [1942] AC 332

PARTIES: Kenneth Benton (Appellant) Scott's Refrigerated Freightways Pty Ltd (Respondent)

COUNSEL: S Norton SC; M Fraser (Appellant) SG Campbell SC; ML Snell (Respondent)

SOLICITORS: Brydens Law Office, Liverpool (Appellant) Carroll & O'Dea (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40383/07 DC 639/05

CAMPBELL JA BELL JA McDOUGALL J

24 June 2008 KENNETH BENTON v SCOTT'S REFRIGERATED FREIGHTWAYS PTY LTD Judgment 1 CAMPBELL JA:

Nature of the Case 2 The Appellant is a truck driver who was injured on 27 October 2003. Immediately before the injury he had been driving a prime mover, identified as vehicle PM51, that was owned by the Respondent. The injury occurred when the Appellant was alighting from the cabin of the vehicle. His foot slipped on the top step of a pair of steps affixed to the side of the fuel tank of the vehicle, by means of which a driver could enter or leave the cabin. He fell backwards onto the ground, and sustained injuries. The claim the Appellant ultimately pressed was that the step was defective, in two particular respects, as a result of the Respondent's negligence. 3 The plaintiff's claim was tried in the District Court. Judgment was given on 25 May 2007 by her Honour Judge Truss. Her Honour gave a verdict and judgment for the Respondent, and ordered the Appellant to pay the Respondent's costs. 4 The Respondent conceded at the trial that it owed to the Appellant a duty to exercise reasonable care in the use or operation of the vehicle. The trial judge held that that duty had not been breached. 5 The Appellant submitted that the Respondent owed him a "higher" duty than the duty that the Respondent conceded. The Appellant contended that the duty that the Respondent owed was "akin to the duty owed by an employer to an employee". The trial judge did not accept that any such "higher" duty was owed. One issue on the appeal relates to whether that decision of the trial judge was correct. 6 The trial judge was not satisfied that the step was defective in either of the ways the Appellant contended. In consequence she was not persuaded that the Respondent had breached its duty of care. The Appellant disputes the correctness of those findings of the judge. 7 Against the possibility that this Court might hold that her decision concerning liability was wrong, the trial judge assessed damages. That assessment was carried out (as it is common ground it should have been) applying the provisions of the Motor Accidents Compensation Act 1999 ("MAC Act"). If all the damages of the Appellant were assessed in accordance with that Act, the trial judge found they would amount to $516,515. The Appellant does not dispute the manner in which her Honour arrived at that figure. 8 The step in the trial judge's reasoning concerning damages that the Appellant disputes is that her Honour found that the employer of the Appellant was not the Respondent, but was another company, Restaco Pty Ltd ("Restaco"). While Restaco had made various payments of workers' compensation to the Appellant, the Appellant had at no time sued it for common law damages. The trial judge adjusted the amount of $516,515 pursuant to section 151Z(2) Workers Compensation Act 1987. In the course of making that adjustment she found that Restaco owed a non-delegable duty to the Appellant to provide safe plant and equipment, and that a finding of negligence against Restaco would be an inevitable consequence of a finding of negligence against the Respondent. She found that the non-delegable nature of the duty that an employer owes to an employee would mean that any reliance by Restaco on the Respondent in relation to the supply or maintenance of trucks would not absolve it of its responsibilities to the Appellant. Her Honour apportioned liability between the Respondent and Restaco pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1965, and assessed the respective responsibilities of Restaco and the Respondent as being 25% and 75%. 9 Her Honour assessed the damages that the Appellant would have recovered if his damages were assessed in accordance with Division 3 of the Workers Compensation Act. She found it likely that the 15% threshold provided by section 151H of that Act would be exceeded, and that the damages to which the Appellant would have been entitled, if damages were assessed in accordance with Division 3 of the Workers Compensation Act, were $422,725. Her Honour then carried out the calculation required by section 151Z(2)(c) and found that the amount of damages recoverable by the Appellant should be reduced by the amount of $23,447. If that reduction were made, the damages of the Appellant would be $493,058. 10 In this appeal, the Appellant disputes the correctness of the trial judge reducing the damages under section 151Z Workers Compensation Act. 11 The Appellant also submits that the trial judge gave insufficient reasons for her decision, and that in consequence there should be a new trial limited to liability.

PM51 12 The Appellant was a professional driver, and (leaving aside for the moment any question of who his employer was) his regular daily work involved him in driving a prime mover as part of the business of the Respondent. However, PM51 was not the vehicle that the Appellant usually drove, nor even the same make of vehicle as the Appellant usually drove. PM51 was a type of truck known as an International Transtar 4700. The vehicle that the Appellant usually drove was a Kenworth. Mr Timothy Brookhouse also worked for the Respondent's organisation, and was one of the usual drivers of PM51. 13 The Kenworth had a different means of access to the cabin to the Transtar, that involved something more like a conventional stepladder suspended from the cabin. The Appellant's uncontested evidence was that he could use the access ladder on the Kenworth by sliding his foot forward on the step until his heel encountered the edge of the step, but that the configuration of the access steps on the Transtar did not permit that to be done. The organisation also had some trucks called S-Lines, that were like Transtars but smaller. The Appellant had at one stage expressed the view to his superior, Mr Gradon, that he did not like the way the steps were set up on the S-line and thought they were a danger.

The Truck Steps 14 The cabin of PM51 is reached through a doorway the bottom sill of which sits approximately 1.38m from ground level. Between the floor of the cabin and the ground are slung two cylindrical fuel tanks, one immediately behind the other, aligned so that the axis of each cylinder lies along the length of the prime mover. Those fuel tanks had around them five metallic bands, with an appearance somewhat similar to the hoops around a barrel. Two aluminium steps are secured by brackets to those bands, in such a manner that each step is horizontal, and positioned out a little from the surface of the tanks. The distance from the ground to the bottom step is approximately 415mm, though this can vary according to factors such as fuel and load. The distance from the bottom step to the top step is 485mm. The distance from the top step to the sill of the cabin is 480mm. The tread of each of the aluminium steps is 110mm wide. At least when the top step is sitting on a bracket that is undamaged, the clearance between the inner edge of the top step and the curved surface of the fuel tank is 60mm. Thus, if the toe of the footwear of a person seeking to climb undamaged steps was just in contact with the tank's surface, the hindmost part of the sole of the footwear that was in contact with the step would be 170mm from the tip of the footwear. 15 The step is manufactured with some features designed to make it slip-resistant. Each step has three rows of what have been referred to as "dimples" running along its length. The dimples rise from the surface of the step. They are spaced so that anyone using the step would have a number of the dimples under the sole of his or her footwear, no matter where on the step he or she trod. Each dimple is circular in plan, comprising two distinct annular areas with a central hole. The outermost annulus is where the dimple gradually rises from the surface of the step. The next annular area is immediately before the hole. It is configured so that a narrow ridge of metal surrounds the end of the hole. Raising the dimples from the surface of the step keeps the user's foot clear of the surface where water or slippery substances might gather. The hole in the centre of each dimple aids in drainage, and also enables there to be a level surface across the diameter of each hole. The main purpose of elevating the boot, in the manner the dimples did, was explained by an expert, Professor Frost: "… there will be a small area of high pressure contact between the ridge around the hole and sole of the boot … [and] that in itself will lead to some hopefully transient indentation of the sole of the boot." 16 He said that evidence was given on the basis of assuming that the type of boot that the truck driver was wearing was something like a Blundstones, that had a polyurethane sole or something similar, and that "… it's soft enough to have an indentation in view of the small area and the high pressure of contact", leading to a feeling of positive engagement with the ridges on the step. 17 There was also uncontested evidence, from both the plaintiff and Mr Brookhouse, that the edges of the holes in the dimples of the steps on the Transtars when new had what the plaintiff described as "like a frayed sort of metal", and other evidence described as a "burr", that wore down with time. This burr was a product of the manufacturing process, by which the dimples were machined into the step. Professor Frost gave uncontested evidence that the burr was not just an accidental or coincidental by-product of the manufacturing process, but rather was a deliberate feature that is left there to promote the grip. 18 There is a primary handgrip located immediately to the rear of the cabin door - ie on the left-hand side of the door opening, as one faces it. That handgrip runs vertically from just above the level of the sill to somewhat below the top of the cabin door opening. A secondary handgrip is located inside the cabin, on the right-hand side (as one faces into the cabin) of the cabin door opening. Descending from the cabin involved the driver backing out of the cabin and using both handgrips to assist his descent. The trial judge found that: "… egress from the vehicle requires a change from forward facing posture as the driver leaves his seat to facing towards the cabin as he descends. … it is not possible to see the top step when alighting from the cabin and … the normal practice is to extend the leg and feel for it with the left foot." 19 One attribute of the design of this method of access to the cabin was described by another expert, Mr Bailey. It is that while exiting the cabin: "… the main mass of the torso is necessarily located outboard of the feet and steps, so that it is essential to maintain a firm grip on the handrail(s) to prevent simply 'toppling' outwards. Outwards 'toppling' will occur without loss of footing and simply as a consequence of the vertical alignment of the steps."

The Injury 20 The trial judge accepted that the plaintiff was injured in the following way: "[He] slid his buttocks off the seat and placed his left hand on the back of the driver's seat and his right hand on the steering wheel. He then moved his left hand onto the rail to the left of the steps with his right hand still on the steering wheel as he led off with his left foot and placed it on the top step. He had his weight on his left leg and was in the process of moving his right leg from inside the cabin to place it on the bottom step when his left foot started to slide and despite tensing his grip with his hands he fell to the ground landing on his back." 21 At the time of the accident the Appellant was wearing Redback work boots, which the trial judge accepted "have a deep tread composition sole of the type depicted in exhibit 13".

The Case on Negligence Presented 22 Though aspects of the pleading and evidence went to a contention that the design of the vehicle was negligent, that contention was not persisted in. As ultimately presented, the Appellant's case was that there were two separate deficiencies in the top step. 23 The first was that it was worn, so that it had insufficient slip-resistant property at the time the accident occurred. 24 The second was that the step was damaged through having been pushed towards the fuel tank so that the distance between the step and the fuel tank was reduced. Though not fully articulated in the evidence, the contention seems to have been that the ball of the foot is the part that can most effectively bear weight when one is descending a set of steps backwards, and if the distance between the step and the fuel tank were to be reduced, that would lessen the surface area over which the sole of a driver's boot, immediately below the ball of the foot, could come in contact with the surface of the step. 25 The Appellant contended that these conditions of the step together contributed to the Appellant actually slipping. Further, he contended that the step being in that condition was a product of the negligence of the Respondent.

Pleadings Re Identity of Employer 26 The plaintiff's Amended Statement of Claim contained the following material allegations: "1. On or about 27 October 2003 the Defendant was the owner of a Kenworth Prime Mover registered number SCW-814 (VIC). 2. On or about the said date and at the Primo Smallgoods Depot at Chullora the Plaintiff was attempting to alight from the cabin of the Defendant's vehicle when he slipped from a defective metal step below the cabin on the said vehicle and fell to the ground below suffering injury, disability, loss and damage. 3. In the circumstances the Defendant was under a duty of care to the Plaintiff and was in breach thereof and was negligent." 27 The Amended Defence to Amended Statement of Claim responded to those paragraphs as follows: "1. The Defendant does not admit paragraph 2 in the Statement of Claim. 2. The Defendant denies the Defendant is negligent as alleged or at all. …"

As well, the Amended Defence to Amended Statement of Claim said: "5. Further in answer to the whole of the Statement of Claim the Defendant relies on the provisions of section 151Z(2) of the Workers Compensation Act ." 28 That last-mentioned pleading was not further elaborated on, either by additional paragraphs in the Defence, or by particulars. It should be said at the outset that this pleading concerning section 151Z is quite inadequate. A fundamental requirement of pleading is set out by Uniform Civil Procedure Rule 14.7: "Subject to this Part, Part 6 and Part 15, a party's pleading must contain only a summary of the material facts on which the party relies, and not the evidence by which those facts are to be proved." 29 While UCP Rule 14.19 specifically provides "A pleading may raise any point of law", if the point of law in question requires material facts to be proved and accepted by the court, those material facts must be stated. 30 The provisions of section 151Z(2) that are presently relevant are: "If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages" … 31 The reference to section 151Z(2) in the Defence would make sense only if it was the contention of the defendant that it was not the worker's employer, and that the worker was taking or entitled to take proceedings independently of the Workers Compensation Act to recover damages from that employer, and the defendant was seeking a reduction in any damages it might have to pay to the plaintiff, with that reduction being quantified in the manner set out in section 151Z(2)(c). 32 I have explained how that quantification proceeds in J Blackwood & Son Limited v Skilled Engineering Limited [2008] NSWCA 142, and will not repeat that here. 33 The material facts that would need to be established for a claim under section 151Z(2)(c) would include identification of the person alleged to be the employer, the material facts by virtue of which that relationship of employment was alleged to exist, the material facts which showed that the worker had taken or was entitled to take proceedings independently of the Act to recover damages from the employer, and any material facts that entered into the quantification of the reduction that was sought in section 151Z(2)(c). As both the contribution that the non-employer tortfeasor could recover from the employer but for Part 5 of the Workers Compensation Act, and the contribution that the non-employer tortfeasor is entitled to recover from the employer under section 151Z(2)(d) both depend upon the relative causal efficacy and culpability of the actions of the employer and the non-employer tortfeasor, the facts material to those matters, and any special facts, that if not pleaded could take the other party by surprise, would need to be pleaded. 34 Further, if the non-employer tortfeasor wanted to contend that the amount of contribution it could actually recover from the employer tortfeasor was nil, because the worker did not pass the 15% permanent impairment threshold set by section 151H before damages assessed in accordance with Division 3 of Part 5 of the Act are payable at all, that failure to pass the threshold would also need to be pleaded. 35 The only material facts that the Amended Statement of Claim pleads, as the "circumstances" referred to in paragraph 3 of the Statement of Claim that give rise to the duty of care, are the defendant's ownership of the vehicle, that the plaintiff was using the vehicle, and that the plaintiff was injured in consequence of a particular defect in the vehicle. That pleading does not allege that the defendant was the employer of the plaintiff, and in consequence had any particular duty of care to the plaintiff. 36 Notwithstanding the Statement of Claim, counsel for the Appellant, Mr Lidden SC, sought at the trial to raise an issue that the Respondent was the employer of the Appellant. Counsel for the Respondent, Mr Campbell SC, objected to that issue being raised. After a preliminary skirmish that followed an objection to one item of evidence, based on there being no averment in the Statement of Claim that the defendant was the employer of the plaintiff, the trial judge expressed her view that that particular piece of evidence was neutral. The transcript then records: "CAMPBELL: Well, thank you, your Honour, as long as it's clear that that's the limited use of the evidence, I'm very content. LIDDEN: I won't be stopping there, your Honour, but that's what I'm doing at this stage."

The evidence proceeded. Shortly after, the transcript records: "OBJECTION. TO EVIDENCE BEING LED THAT SUGGESTS THAT SCOTT'S REFRIGERATED FREIGHTWAYS PTY LIMITED IS EMPLOYER OF PLAINTIFF. LEGAL ARGUMENT. HER HONOUR: I think Mr Lidden would be hard pressed in these circumstances to argue that the defendant owed to the plaintiff the duty of care an employer owes an employee. CAMPBELL: On the pleadings, your Honour. HER HONOUR: Yes, on the pleadings. CAMPBELL: May it please the court. LIDDEN: I'll just state my position again, your Honour. We don't know who employed this plaintiff. FURTHER LEGAL ARGUMENT. LIDDEN: Well, your Honour knows what the issue is between us, so I'll just proceed, but I'm not making any concessions that Mr Campbell seems to be seeking." 37 It is not clear from the transcript what were the "concessions that Mr Campbell seems to be seeking". The evidence continued, so far as the transcript shows, without further clarification of the issues, or a ruling under section 136 Evidence Act 1995 being sought or given, limiting the use to which evidence relevant to a question of who was the employer of the plaintiff might be put. 38 To experienced counsel (as those conducting the trial were) the defective pleading concerning section 151Z(2) Workers Compensation Act would no doubt convey that the defendant's contention was that it was not the employer. Though the question of who was the employer was in this way within the issues raised by the pleadings, the plaintiff still had no affirmative pleaded case that the Respondent was his employer. However, in the course of the plaintiff's evidence some documents were tendered which went to that issue, and no objection was taken to them. Those documents included a certificate of earnings, in the form approved by the Motor Accident Authority, relating to the plaintiff, that identified his "place of employment" as being "Restaco Pty Ltd trading as Scott's Refrigerated Freightways Pty Ltd", for a period from 19 May 1999 until the date of the accident. 39 On the third day of the trial, still in the plaintiff's case, Mr Lidden sought to tender a collection of documents. They were the Appellant's group certificates, his tax returns, and certain other documents relating to payment of his wages, and searches of various companies named in those documents as being his employer at different times. Those searches showed, in broad terms, that all the companies were in the same ownership and control. At the time they were tendered the following exchange occurred: CAMPBELL: Your Honour, Mr Lidden showed me these yesterday and I said I had no objection to them being tendered. But may I say this, I think I've been objecting from the moment the case started about any case being mounted against me as an employer your Honour, and I maintain that objection. HER HONOUR: There isn't one on the pleadings at this stage anyway. CAMPBELL: That's why I maintain the objection your Honour. But in terms of showing the wages history and the like I've got no objection to them being received into evidence." 40 The fourth day of the trial was the last day on which evidence was taken. Close to the end of the fourth day, Mr Campbell tendered in his case some wage records relating to the plaintiff. At that time he said: "… there's been this undercurrent which I've been resisting and my friend has been promoting in the case about the status, if I can put it neutrally, of Restaco. I'm producing these wages records not so much for what they contain but to demonstrate that they in fact exist." 41 In London Passenger Transport Board v Moscrop [1942] AC 332 Lord Russell of Killowen said, at 347: "Any departure from the cause of action alleged, or the relief claimed in the pleadings should be preceded, or, at all events, accompanied, by the relevant amendments, so that the exact cause of action alleged and relief claimed shall form part of the court's record, and be capable of being referred to thereafter should necessity arise. Pleadings should not be 'deemed to be amended' or 'treated as amended'. They should be amended in fact." 42 In Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at [6], 664 Murphy, Wilson, Brennan, Deane and Dawson JJ said: "Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings ( Gould and Birbeck and Bacon (1916) 22 CLR at 517-8; Sri Mahant Govind Rao v Sita Ram Kesho (1898) LR 25 Ind App 195 at 207.)" 43 Similarly, in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liquidation) [1916] HCA 81; (1916) 22 CLR 490 at 517 Isaacs and Rich JJ said: "… pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest."

They went on at 517-8, to recognise that: "… each case must depend for the proper application of the principle upon its own facts. It has been laid down by the Privy Council that 'as a rule relief not founded on the pleadings should not be granted.' 'But in this case' (said their Lordships) 'the substantial matters which constitute the title of all the parties are touched, though obscurely, in the issues; they have been fully put in evidence, and they have formed the main subject of discussion and decision in all three Courts. The High Court are right in treating the case as not within the rule': Sri Mahant Govind Rao v Sita Ram Kesho (1898) LR 25 Ind App 195 at 207." 44 In the present case there was no consensual abandonment of the pleadings by the way the parties conducted their case. Mr Campbell objected at the outset to Mr Lidden raising a case that the Respondent was the employer of the Appellant, and did not depart from that objection throughout the course of the trial. 45 The trial judge rejected, on the facts, a submission that the Respondent employed the Appellant at the time of the accident. She also said "in any event, as I read the Statement of Claim no such allegation is pleaded."

The Duty of Care Owed by the Respondent 46 Ms Norton SC appeared as counsel for the Appellant on the appeal. The focus of her submissions concerning duty of care was not on the identity of the actual employer of the Appellant but on the significant extent of practical control that the Respondent exercised over the conduct of the industrial operation within which the Appellant worked. That industrial operation involved the employment of more than 100 people and the procuring, maintaining and operating of a fleet of trucks. It had a head office at Prestons, near Sydney, and depots at Cootamundra, Scone, Adelaide, Brisbane and Melbourne. A sign at the head office read "Scott's Refrigerated Freightways". The prime movers and trailers of trucks were painted with prominent signs saying "Scott's Refrigerated Freightways". Indeed, the cabin door of PM51 had such a sign on it. The Appellant, and other drivers that he knew, were issued with a uniform that had "Scott's Refrigerated Freightways" on the chest. Consignment notes that the Appellant issued for goods had "Scott's Refrigerated Freightways" printed on them. 47 When the Appellant was first employed to work in that organisation, his employer was the Respondent. Over the years he worked there, various companies under the same ownership and control as the Respondent, and with the same registered office or principal place of business, were shown on the Appellant's group certificates, and other documents recording his pay, as being his employer. However, it never impinged on the Appellant's consciousness that any change of any significance had occurred. It appears from the evidence that at any one time a variety of different companies were used to be the employer of different drivers, wash bay employees, workshop personnel, and managers within the organisation. Further, a particular person who worked for the organisation might have payslips and records of earnings issued by one company in one year, and a different company in the next. Notwithstanding this, to the outside world, and to the Appellant, it appeared as though there was a single integrated organisation called Scott's Refrigerated Freightways. 48 According to the internal records of the organisation, the employer of the Appellant at the time of his accident was Restaco Pty Ltd. Indeed, it was the holder of the workers' compensation insurance policy under which the Appellant has received benefits. 49 The evidence included a copy of a letter (on the letterhead of the Respondent) that replied to a request for particulars: "1. Please provide a copy of any agreement between Restaco Pty Limited and the defendant for the provision of drivers which agreement was in force at the time of the plaintiff's accident. There is no verbal or written agreement between Restaco and the defendant to the best of our knowledge. 2. If there is no written agreement or if the agreement to provide drivers is partly written and partly oral then: a) Please set out the Terms of the Agreement; b) Please tell us when the Agreement was made; c) Please tell us the persons between whom the agreement was made; There is no verbal or written agreement between Restaco and the defendant to the best of our knowledge ." 50 In my view it is not necessary to decide who was the actual employer of the Appellant for the purpose of deciding what duty of care the Respondent owed to the Appellant. That is because there is no relevant difference between the duty that the Respondent owed to the Appellant in its capacity as owner of PM51, and the duty it would owe if it were the employer of the Appellant. 51 An employer owes a common law duty to its employees to take reasonable care for their safety, and part of that obligation is an obligation to take reasonable steps to provide a safe plant and machinery: Andar Transport Pty Ltd v Brambles Pty Ltd [2004] HCA 28; (2004) 217 CLR 424 at [34], 439. Thus, if the Respondent were the employer of the Appellant, by virtue of its obligations as an employer it would be required to take reasonable care to provide the Appellant with a vehicle that was safe to use. However, any vehicle owner who makes its vehicle available to another person to drive owes that person a duty to take reasonable care that the vehicle is safe to use. An employer's duty of care is non-delegable, while the duty of care of a vehicle owner who lent its vehicle could in some circumstances be discharged by establishing that any defect in the vehicle was due to inadequate performance of repair or maintenance work by some identified independent third party, and that the vehicle owner had exercised reasonable care in entrusting the carrying out of the repair and maintenance work to that third party. However, in the present case, the Respondent did not seek to argue that any deficiencies in the condition of the vehicle were due to the action of some independent third party. Rather, what had been done in the course of maintaining the vehicle was examined as though any deficiency in the maintenance would be a deficiency for which the Respondent was responsible. Thus, in the way the case was run the difference between the non-delegability of an employer's duty of care concerning provision of equipment, and the delegability of the duty of care of a vehicle owner who is not an employer, but who lends his vehicle to another, made no practical difference.

Whether the Step was Worn 52 PM51 was one of a number of trucks which the Respondent acquired second-hand in November 1999. It was built in July 1998. At the date of the accident it had done just over one million kilometres. So far as he could recall the Appellant had never driven PM51 before the day on which he was injured, though "may have driven one or two" other Transtars. The organisation of which the Respondent was part had some trucks called S-Lines, which the Appellant described as a "smaller version of the Transtar". The Appellant had driven S-Lines, and identified their steps as being "exactly the same" as the steps depicted on a photograph of a Transtar. His evidence was that he had noticed with the S-Line trucks that the "holes in the steps" over time "… would get smoother. They wouldn't be so - they wouldn't grip your boots as well as they were when they were new." 53 He also said: "Q. And if it got worn, what would it be like to tread on? A. It'd just feel like a little bump in the step. It just - they - no grip. Q. If it was in new or nearly new condition, did it grip your foot? A. Yep." 54 In cross-examination the Appellant was reminded of his evidence of the rough edge around the hole. The evidence continued: "Q. And that was the type of thing which wore off fairly quickly with the driver climbing up and down the steps? That's right, isn't it? A Yep." 55 He later qualified that evidence: "Q. Once they've been used for a relatively short period of time, those burry edges are worked off, that's right isn't it? A. I wouldn't say in a short period of time, in a - after many - I suppose a lot of use, yeah. Q. But after that burry edge goes, you're still left with the islands, are you not? A. You're still left with a little bit of the islands, yeah." 56 An expert witness, Mr Bailey, was able to inspect PM51 on 13 August 2005. By that time PM51 had been sold to a new owner. Mr Bailey took a close-up photograph of the then condition of the dimples on the top step. That photograph shows a ridge around the hole of each dimple. The Appellant was shown that photograph: "Q. And I suppose, would you say, that you didn't make a very close examination of the step on that day? A. No. Q. But looking at that photograph, figure 4 on page 8 of the report, it looks the same, do you agree? A. It's similar, yes. Q. Well are there any differences that you made? A. I could not say whether that was exactly the same step or if it was the actual step. Q. All right. But do you agree with me that whether or not it's the actual step, that photograph looks like the step that was on the truck? A. Yep." 57 The cross-examination continued: "Q. Now you've told her Honour you were wearing proper work boots with what, a polyethylene sole or something? A. Yeah, with really good, with grip, yeah. Q. And do you agree with me that when you put the sole of the boot onto either the top or the bottom step that it goes onto those islands we identified? A. Mm-hmm. Q. That's a yes? A. Yeah. Q. And that the sole of the boot engages with those ridges we identified in the close up photograph on top of the islands. That's right, isn't it? A. Yes. Q. And those islands and those ridges provide good traction when you're climbing in and out of the truck wearing proper boots, do they not? A. If they're new, yeah. Q. Even if that burr which is there from the manufacturing process has worn off, the islands and the ridges still provide good traction to the sole of a good work boot, don't they? A. Not always, no." 58 The Appellant lived in Cootamundra. On the day in question he had driven PM51 from Cootamundra to Sydney, and it was when he was getting out of the vehicle in Sydney that he was injured. He gave evidence: "Q. And indeed up until you met with your injury, you got in and out of this truck on three occasions without any mishap. That's right, isn't it? A. Correct. Q. And on each of those three occasions that we've been talking about, the sole of your work boot engaged with the step, didn't it? A. Yep. Q. And on each of those occasions it engaged with the step and you got good traction. That's right, isn't it? A. Each time, yep." 59 Mr Brookhouse had been a regular driver of PM51 for about a year and a half before the Appellant's accident. His usual routine was to do about three trips a week in it, on each of which he would be gone about 24 hours. He gave evidence that at the place on the steps that was the normal means of passage, the surface of the steps was "smooth", but further down towards the back of the vehicle the surface of the steps was "rough". He gave evidence that he had slipped two or three times, in the smooth section underneath the front door, in the time before the Appellant had the accident. However, on those occasions he landed on his feet, and never made any formal report about it. 60 In cross-examination Mr Brookhouse was shown the close-up photograph that Mr Bailey had taken. He agreed that it had the dimples, and the hole. The cross-examination continued: "Q. And it's got, you can see that there's no burr on those is that right? A. Oh I could only see if I felt them. Q. I see, but it does have a little ridge around the circumference of the hole at the top of the dimple? A. Yes. Q. And that photograph shows what the top step on PM51 looked like at about October 2003, do you agree with that? A. I never took that close of a look, sorry." 61 He also said: "Q. But even when they have that smoother feeling underfoot, you still have the dimple? A. Yes. Q. You still have the hole? A. Yes. Q. And you still have the ridge? A. Yes. Q. And that's what PM51 was like at about October 2003? A. Yes." 62 Another expert, Professor Frost, (who had never inspected PM51) was shown Mr Bailey's photograph, and accepted that the step probably still looked satisfactory. He said: "Q. But the fact that it may feel smoother underfoot doesn't mean - may feel smoother underfoot compared to those more remote areas, doesn't mean that it's unsatisfactory for safe use, do you agree with that? A. Well it's a matter of degree." 63 When asked about what life could be expected from a step like that, he said he had not done a life analysis on them, that they are probably left in place for lengthy periods of time, and would probably have a satisfactory working life of some years, dependent upon the type of use to which the truck was put. 64 Mr John Hutcheon was in 2003 the General Manager, Equipment and Procurement of the Scott's organisation. He accepted that steps of the type fitted to PM51 could get blunt over time. He said: "Q. If those projecting pieces of metal formed by the punching process wear off, the step is less slip resistant isn't it? A. I don't believe they actually wear off sir, they just become dull. … Q. Well I'm asking you about these projections that you've told me start off sharp and then I'm asking you about the stage where, according to you, they can get blunt. And you've agreed with me I think that reduces their effectiveness in providing purchase for a driver's boot, you've agreed with that haven't you? A. Yes sir. Q. Once that happens you'd replace them, wouldn't you? A. If it's reported you'd replace it, if the people servicing the truck deem it to be unserviceable, they would replace it. … A. The driver had a pre-check book that he could do the pre-checks on the truck. He also had another book called a defect book, an internal defect book and he could write a defect out and pass that defect in, "Yes I've fallen off the step. Could you please look at my step. I don't think it's serviceable any more". … Q. You agree, don't you, that these things wear, the sharpness wears over time? A. Yes sir. Q. Be a good idea to have the people in the workshop keep an eye on that, wouldn't it? A. I believe they did sir. … Q. What I was asking Mr Hutcheon was that the maintenance staff who do the services on these vehicles would be expected to look for a worn step and if necessary replace it? A. Not targeting steps so anything worn that looks as though where the vehicle could fail or driver safety is -- Q. Including steps. A Oh yes, steps. Q. I realise not only steps, but they look - their job is to look over all the vehicle, including the steps and see if something's worn and compromises driver safety. Correct? A. Yes sir." 65 Though Mr Hutcheon had ceased having direct day-to-day involvement with the defendant's workshop by 2000, prior to that time he tried to walk around the yard on a daily basis, and if he noticed damage to a vehicle he would advise the workshop supervisor to fix it. The workshop supervisor at the time of the accident was a Mr Morris, who was not called. However, that occurred in circumstances where orders had been made for short service of a subpoena on Mr Morris, but Mr Lidden announced he agreed that "Mr Morris would have followed a managerial line much as Mr Hutcheon's", and "I won't complain that he wasn't called by the defendant or that any adverse inference arises from the failure to call him". 66 When Mr Bailey inspected PM51, he reported: "When assessed using boots which had polyurethane soles, there was a feeling of positive engagement with the upper surface of these steps at a time when they were somewhat contaminated with oil. Whilst assessment of slip resistance of a step can be performed by several different means, it was clear during the inspect that the upward deformed edges of the holes punched in the aluminium steps were in good condition and fairly sharp, so that they would provide positive engagement with the sole material of any conventional footwear." 67 He reported that the step as inspected by him: "… provides well in excess of the minimum tread depth (ie 160mm vs 127mm required) between the outer edge of the step and the fuel tank, and substantial and effective slip resistance features." 68 The evidence included maintenance records relating to PM51 that spanned a period from 23 January 2002 to 23 May 2005. Those records do not disclose any step being replaced on PM51. The records came to be in evidence in a rather haphazard way - they had not been subpoenaed, but Mr Hutcheon happened to have the records which were ultimately tendered with him at the time he gave evidence. 69 There is some reason to believe that the records are incomplete. The rear of the front section of the bottom step is bent towards the ground in photographs that Mr Brookhouse took of PM51 a couple of months after the accident. So far as one can tell from those photographs, it seems as though it is the rear corner that is furthest away from the truck body that has bent down so as to be below the level of the corresponding section of the rear step, but the rear corner of the edge that is closest to the truck body is at the same level as the back section of that step. Another photograph of PM51 taken on 7 April 2005 shows the bottom step correctly aligned. Notwithstanding that, there is no record in the maintenance documents of that step being fixed, or replaced. 70 Even so, the maintenance records in evidence show that the vehicle was regularly serviced. The vehicle defect report book is a set of printed forms, each of which is headed "ALL DEFECTS FOUND DURING THE PRE-TRIP CHECK AS PER PRE-01 OR ANY DEFECT FOUND DURING OPERATIONS WILL REQUIRE THE COMPLETION OF THIS REPORT." 71 The form identifies various components or potentially defective conditions of the truck, with provision for ticks to be placed in boxes alongside applicable ones. None of those components or potential defects relates specifically to the condition of the step, but one of them relates to "other". Defects actually reported concerning PM51 include "could you put new mudguard on", "heater not working", and "centre cab light out". Different types of standard form are provided for use in the workshop, to identify parts checked, or replaced, or repaired.

The Trial Judge's Finding Concerning Wear of the Step 72 In the course of stating her Honour's findings on this topic I will deal with two minor criticisms of them. 73 Her Honour noted Mr Brookhouse's evidence "of having slipped on the smooth section of the upper step 2 or 3 times landing on his feet". She specifically said that she accepted that evidence. She noted as "uncontroversial" the fact that the burr around the edge of the hole in the dimples wore off in trafficked areas. She noted Mr Bailey's evidence that on his inspection in August 2005 the tread was sufficient. She noted the plaintiff's evidence, referred to at para [56] above, and regarded that evidence as being the plaintiff agreeing that the condition of the step shown in the photograph "was consistent with the condition of the step at the date of his accident". 74 The Appellant submits that this last-mentioned statement of her Honour mischaracterises the evidence - the plaintiff's evidence could only be taken as referring to the appearance of the step as a whole, in a fairly gross way, not to any detail concerning its condition, particularly when he did not make a very close examination of the step on the day in question. I accept that submission. However, the correctness of the submission delivers, in my view, only a pinprick to her Honour's own overall reasoning process, nothing like a fatal wound. 75 After reviewing other aspects of the evidence, her Honour stated (at [47]): "What the plaintiff relies upon is a defective system of maintenance. The evidence establishes that there was a maintenance program for roughly every fifteen thousand kilometres which represented about a month's use and there was a checklist and that whilst the maintenance was supposed to be thorough there was no evidence to suggest that the worn steps on the truck were ever replaced." 76 Ms Norton pointed out that the Appellant relied upon far more than a defective system of maintenance - he also relied upon Mr Brookhouse's evidence, the plaintiff's evidence about the circumstances in which he fell, expert evidence about the manner in which the steps wore, expert evidence about the age and number of kilometres travelled by the truck, and some alleged Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 points. 77 However, all of those matters were specifically referred to in her Honour's judgment. Even though the trial judge would have removed any scope for even possible criticism had she started the passage I have just quoted by saying, "One of the things the plaintiff relies upon is a defective system of maintenance", a reading of her judgment overall leaves no real doubt that that is what she meant. A busy trial judge is not to be criticised for slight infelicities of expression when the overall sense of the trial judge's reasoning is clear. 78 Her Honour said that in her view "the evidence suggests that the defendant had a proper maintenance system and [the maintenance records indicate] a detailed and regular maintenance program in relation to the truck." In my view that conclusion, correctly expressed with a measure of tentativeness as is shown by the words "the evidence suggests", is the correct conclusion to draw from the evidence of Mr Hutcheon and the possibly incomplete collection of maintenance records tendered. 79 The trial judge's conclusion on this topic was: "In my view what is fatal to the plaintiff's case is the absence of any clear evidence as to the step being worn or otherwise requiring maintenance or replacement at or immediately before the time of his injury."

Failure to Accept Evidence of Appellant and Mr Brookhouse? 80 The Appellant submits that the trial judge was in error in failing to accept the Appellant and Mr Brookhouse that "the step was worn, slippery, and dangerous". I do not accept that the evidence of either of them went that far. The evidence that the trial judge specifically accepted, about Mr Brookhouse's two or three slips, shows that those slips occurred at unspecified times, that might have been any time in the 18 months or so that he had been driving this truck before the Appellant's fall. There had been many times when he had negotiated the steps without slipping, and he had never lodged a formal report relating to a defect in the step. While the trial judge accepted the plaintiff's account of the manner in which he fell, the plaintiff had not looked at the step with any care, and had, earlier on the same day, been able to use it and obtain "good traction" from it. Acceptance of the evidence of the Appellant and Mr Brookhouse does not involve concluding that on the day of the accident the step was in such a condition that reasonable care required its replacement or repair.

Professor Frost's Evidence 81 The Appellant submits that the trial judge ought to have accepted evidence of Professor Frost as to the wear characteristics of the step, and the need for replacement of the truck's step. 82 Professor Frost's report in chief was directed to the design issue that was ultimately not pressed. Professor Frost's report in reply to that of Mr Bailey was likewise (unsurprisingly, when Professor Frost had not inspected the vehicle in question, or been asked to make any assumptions about the wear characteristics of the particular step) confined to the design issue. Apart from questions concerning the durability of the step, to which I will shortly turn, Professor Frost's cross-examination related to design issues. 83 While the trial judge recorded that "Professor Frost considered that the steps would wear to the point of becoming slippery within a year", and contrasted that with Mr Bailey's view "that they might last the life of the truck which was 1 to 2 million kilometres", and "he thought that on average it would be reasonable for the steps to be replaced 2 or 3 times in a truck's life" that evidence of Professor Frost was heavily qualified. As well, he expressed the views that I have set out at paras [62] and [63] above when pressed by counsel to express an opinion about how long a step might last, he gave the sensible reply: "[It's] going to vary enormously on the use to which the truck is put. I mean one can pick a hypothetical figure out of the air but it's pretty meaningless really. I mean, if the truck is involved in lots of short runs and stops and the driver is in and out a lot of times in a day, obviously it's going to last less time. If the truck was used mainly on interstate runs and the driver was only in and out three or four times a day and bearing in mind the drivers do stop and have a rest and get out and run around and so on, it would obviously last longer. I mean, I think it's fairly misleading for me to attempt to give one figure that encapsulates all of that." 84 After he had expressed the view that he would expect a step to last a year, he was asked: "Q. Be more than a year wouldn't it Professor Frost? A. Oh as I say, it depends - it depends on what the use the truck is put to. It also depends on the surfaces that are available on the ground for the driver to step down onto. If he's getting up on the truck again with residual gravel adhering to the soles of his boots, he'll wear that step out a lot quicker, and you know, the conditions are so varied that it's virtually impossible to give a blanket figure." 85 Similarly, Mr Bailey's evidence about how long the steps might last was very much dependent upon the precise circumstances in which the truck was used. 86 In my view, Professor Frost's evidence as to the wear characteristics of the step and the need for replacement of the step provide no basis for concluding that the step involved in this case was defective at the time the Appellant fell.

Jones v Dunkel 87 The Appellant submitted that the trial judge should have drawn Jones v Dunkel inferences arising from the failure to call the workshop manager, or mechanics who had actually carried out the maintenance and repair of PM51. I do not agree. Jones v Dunkel is one available tool in a judge's task of fact-finding. It licenses, but does not require, the drawing of inferences in certain circumstances. Applied to the facts of the present case, if it were open to infer that at the time of the Appellant's fall the step had worn to an extent and manner that would not have occurred had reasonable care been exercised, Jones v Dunkel would authorise the trial judge to draw that inference more strongly when people who were in the Respondent's camp and could cast light on that fact were not called. But it must be open to draw the inference in the first place, before it can be drawn more strongly. 88 The Appellant also criticises the trial judge for not drawing a Jones v Dunkel inference arising from the failure of the Respondent to call evidence of "the use or uses to which PM51 had been put and the types of terrain available to its drivers alighting from the vehicle". The pleadings gave no hint that this would be an issue in the trial. The relevance of such use and terrain arose from the evidence of Professor Frost and Mr Bailey. The trial judge made no error in not using the absence of such evidence as the basis for inferring that PM51 had been used in circumstances that would subject the step to such a degree of wear that reasonable care required it to be replaced or repaired. 89 In my view, the trial judge's conclusion that the Appellant had not shown that the step was worn or otherwise required maintenance or replacement at, or immediately before, the time of his injury, has not been shown to be erroneous.

Whether the Top Step Had Been Pushed In 90 Mr Bailey constructed a model of the cross-section of the front fuel tank, the step, and the bracket attaching the step to the fuel tank. That model was constructed in accordance with the measurements that he made when he inspected PM51. Thus, it showed the step as having a width of 110mm, and a gap of 60mm between the innermost edge of the step and the tank. 91 When the Appellant was shown, in cross-examination, a photograph (figure 2) that Mr Bailey had taken of the steps at his inspection, he agreed there was "a slight gap" between the inside edge of the bottom step and the fuel tank. The cross-examination continued: "Q. And although it's not visible in that photograph, you'd agree with me wouldn't you that there is a gap between the inside edge of the top step and the fuel tank? A. Yes there's a very narrow gap, yes. Q. Well I suppose - you never measured - it I suppose? A. No but I've watched [washed?] enough tanks to know that - I got my finger caught in there a few times." 92 Mr Bailey also constructed a model of the profile of a size 10 work boot. The Appellant agreed that the profile showed a similar style of boot to that which he was wearing at the time of the accident, though he wore a size 9. The Appellant was shown a demonstration of how the model of the boot interrelated to the model of the step and tank, and asked: "Q. And would you agree with me that if I conduct this demonstration that you are able to get most of the sole of the boot onto the top step without riding up on the fuel tank as depicted in this model anyway? A. On this model it shows that but on the tank - on the actual truck, no." 93 Mr Brookhouse gave unchallenged evidence that he could get less than half his foot onto the top step of the actual truck. The question he was asked appears to relate to the entire foot, from the tip of the toe to the rear of the heel, so his answer is quite consistent with the measurements that Mr Bailey obtained. 94 The Appellant points out that Mr Bailey's measurements found that the gap between the bottom step and the tank was 50mm, while that between the top step and the tank was 60mm. Those submissions continue that an examination of a photograph taken by Mr Brookhouse a couple of months after the accident suggests that the gap between the top step and the tank was significantly narrower, rather than marginally wider, than the gap between the bottom step and the tank. Having inspected that photograph (particularly the part of the photograph that shows the part of the top step that is closest to the front of the vehicle and the tank immediately adjacent to it), I decline to draw that conclusion. 95 In the context of discussing whether the top step had been pushed towards the tank on or prior to the day the Appellant fell, but had been repaired or replaced by the time Mr Bailey inspected PM51, Mr Bailey was asked: "Q. So someone can fix the bracket? A. Those brackets are integral with the tank brackets and so to have been so deformed to close that gap up on the step would require that the brackets would have damaged the tank itself so that it would be quite a major issue. … Q. Well we've got some photos of these brackets Mr Bailey. The steps are held to the brackets by bolts are they not? A. Yes they are. Q. The brackets have a rubber buffer underneath the bracket and around the tank or some sort of synthetic material buffer don't they? A. Yes they do. Q. Well [it's] perfectly possible to bend the bracket where the step is attached to it and not damage the tank isn't it? A. No it's not." 96 Mr Bailey accepted that on the occasion of his inspection he did not look underneath the step to inspect the bracket there. 97 In connection with evidence of fingers becoming trapped behind the step in question, Mr Bailey said: "My concern is just that the model is a 2D representation of a 3D object. There are places where one's fingers could get entrapped which are not related to the position of the step." 98 That topic was taken further in re-examination: "Q. You mentioned that there were features of the construction that you saw that could enable someone's finger to become entrapped, do you remember that? A. Yes I do. Q. What features were you talking about there? A. Where the strap, bracket which holds the tank is extended to support the step there are acute angles formed which would enable - which close to zero tolerance so that they become a point of entrapment. Q. Does that have anything to do with the available foot clearance inboard of that step? A. No." 99 In support of the submission that the top step had been pushed in, the Appellant relied upon the fact that the bottom step had been damaged and remained unrepaired for months. No case was put to the effect that the damage to the bottom step was likely to have resulted from some incident that was likely to have also damaged the top step by pushing it in. Rather, it is relied upon as an example of clear damage to a step that remained unrectified for months. However, while the damage to the bottom step was clearly visible, there was no evidence to the effect that it was in any way dangerous. Without evidence that the bottom step in its damaged condition was dangerous, I do not see that the damage to the bottom step assists the Appellant's case. 100 The trial judge said (at [39]): "I also have regard to Mr Bailey's evidence which I accept, that had the steps been pushed in to the extent suggested some observable damage to the brackets supporting the steps would have been manifest but there was no evidence of any such damage. Further, I consider the plaintiff's evidence about catching his fingers to be somewhat puzzling given his evidence that he did not recall having driven the truck previously although he had driven Transtar 4700s." 101 She also noted that it was not part of the ordinary duties of the Appellant to wash trucks, and indeed the Respondent had a wash bay on the premises and employed persons who worked there. She was not persuaded that at the date of the accident the top step had been damaged in a manner that reduced the gap between it and the fuel tank. 102 The Appellant criticised the first sentence I have quoted from the trial judge. The basis of the criticism was: when Mr Bailey did not look under the step, how can one say there was no evidence of any such damage? In my view, her Honour's remark is not confined to damage that was observable by Mr Bailey, it related to damage observable by anyone. There was no evidence of damage of the degree of seriousness that Mr Bailey described having been reported or repaired, in the maintenance records. 103 In my view her Honour was right to be puzzled by the plaintiff's evidence about catching his fingers. The evidence of Mr Bailey shows that it was an inherent feature of the design of Transtars that there were some tight spots around the step, bracket and tank portion of a Transtar in which fingers could become trapped. The Appellant's evidence about his fingers becoming trapped did not make clear whether he was talking about PM51, or some other similar vehicle. If he was not talking about PM51, the evidence about entrapment of fingers could not be the basis of a finding that the top step on PM51 had been pushed in on the day in question. Ms Norton hypothesises that the Appellant was talking about catching his fingers on PM51 when washing down the tank, on the day of the accident. However, the Appellant did not say so, and it could not be assumed. 104 In my view the trial judge was right, in light of all the evidence, not to be persuaded that the top step had been damaged in the fashion that reduced the gap between it and the fuel tank.

Inadequate Reasons 105 Various of the criticisms of the trial judge's reasoning that I have referred to in the course of these reasons for judgment were relied upon in the alternative as showing that the trial judge had not adequately given reasons for her conclusion. I have dealt with those criticisms in the course of the judgment. In my view, the reasoning process by which her Honour arrived at her conclusion is sufficiently clear to the reader.

Conclusion and Orders 106 In my view, the Appellant has not succeeded in showing any error in the trial judge's conclusion concerning liability. I propose that the appeal be dismissed. 107 The issues at the trial were obscured and complicated by the pleading of both parties, in the way discussed earlier in this judgment. At the hearing of the appeal the Court enquired of Ms Norton whether, if the Court were to come to the view that the appeal on liability failed, but that there had been significant deficiencies in the defendant's pleading, that would make any difference to the usual order as to costs. She accepted it would make no difference. 108 In those circumstances the orders I propose are that the appeal be dismissed with costs. 109 BELL JA: I agree with Campbell JA. 110 McDOUGALL J: I agree with Campbell JA. **********

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Judgment (30 paragraphs)

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