Boral Resources (NSW) Pty Ltd v Watts

Abalos v Australian Postal Commission (1990) 171 CLR 167; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Bootle v Kettlewell (1993) Aust Torts Rep 81-250 Czatyrko v Edith Cowan University (2005) 79 ALJR 839; Fox v Percy (2003) 214 CLR 118; Ghunaim v Bart [2004] NSWCA 28; CASES CITED: James Hardie v Wyong Shire Council (2000) 48 NSWLR 679; McLean v Tedman (1984) 155 CLR 306; Misiani v Welshpool Engineering Pty Ltd (in liq) [2003] WASC 263; Patten v Moffatt (No 5) [1999] NSWSC 1322; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529; Proctor & Gamble Pty Ltd v Australian Slatwall Industries Pty Ltd [2001] NSWSC 398. Van der Sluice v Display Craft Pty Ltd [2002] NSWCA NSWCA 204;

Boral Resources (NSW) Pty Ltd - Appellant PARTIES: Frances Vicki Watts - First Respondent Waltron Pty Ltd t/as Staff Force - Second Respondent

G Curtin - Appellant COUNSEL: P R Arden SC & R E Quickenden - First Respondent B Odling - Second Respondent

Griffin Hilditch - Appellant SOLICITORS: J J Lees & Associates - First Respondent Arnold Lawyers - Second Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40752/04 DC 87/01 (Newcastle)

GILES JA SANTOW JA YOUNG CJ in EQ

Friday 17 June 2005 BORAL RESOURCES (NSW) PTY LTD v WATTS & ANOR Judgment 1 GILES JA: Boral Resources (NSW) Pty Ltd ("Boral") operated a rock quarry at Peats Ridge. It obtained labour from Waltron Pty Ltd ("Waltron") which traded as a labour hire organisation under the name Staff Force. Ms Vicki Watts was employed by Waltron and hired out to Boral, first as the driver of a water truck and then as the driver of a large dump truck carrying rock from the quarry face to a crusher. On 1 December 1998 Ms Watts injured her lower back when moving rocks off the internal roadway between the quarry face and the crusher. 2 The proceedings were heard by Charteris DCJ in October 2003 and May 2004. His Honour gave judgment on 19 May 2004. He held that there had been causative breach by Boral of its obligation to provide a safe system of work, that Ms Watts had not been contributorily negligent, and that Ms Watts should recover from Boral damages of $286,564.26. On a cross-claim by Boral against Waltron he held that there had also been causative breach by Waltron of its obligation to provide a safe system of work, that there should be a 60/40 per cent apportionment between Boral and Waltron, and that Boral should recover $109,840.10 from Waltron. $109,840.10 is not 40 per cent of $286,564.26. The figures had components of damages at common law and modified common law damages under the Workers Compensation Act 1987; they were not in issue on appeal, and need not be explained. 3 On 26 May 2004 his Honour made formal orders, which included that Boral should pay Ms Watts' costs and that Waltron should pay Boral's costs of the cross-claim and, because of a Calderbank letter, should pay them on a solicitor and client basis from the expiry of an unaccepted offer. On 9 June 2004 he varied the costs orders to order that Waltron also pay 40 per cent of Ms Watts' costs payable by Boral. 4 Boral appealed as to liability and contributory negligence. Waltron cross-appealed as to contribution and the 40 per cent costs order.

Boral's liability to Ms Watts 5 Rock was blasted out of the quarry face, loaded into dump trucks and taken by the trucks along the roadway to the crusher. There were two or three trucks, and two generally ran a shuttle service. The roadway was about a kilometre in length, uphill from the quarry face and around a bend. At the crusher the load would be either be taken to the crushing equipment or deposited in a stockpile for later taking to the crushing equipment. 6 It was not uncommon for rocks to fall from the trucks as they moved along the roadway. The roadway was mostly only wide enough for one of the trucks, but in places it was wide enough for them to pass as they ran the shuttle service. When rocks fell on the roadway, the drivers stopped their trucks and moved them off the roadway. The loaders used at the quarry face could be summoned by radio to move heavy rocks, but there were some black spots for radio communication and a loader was rarely available before 9 am because it was then usually fully occupied at the quarry face. 7 The judge accepted Ms Watts' evidence to the effect, that as she was driving her truck from the crusher to the quarry face at about 7.30 am, she saw about five rocks lying on the roadway, two or three feet from its edge; that two of the rocks were quite large, about two feet in all dimensions; that, although she could have driven around the larger rocks after moving the smaller ones, she nonetheless rolled the larger rocks off the roadway; and that she injured her back in rolling the second of the larger rocks off the roadway. 8 His Honour was not satisfied that Boral's system of work was unsafe because rocks fell onto the roadway, or because drivers were required to and did move rocks off the roadway. He found the breach of duty in failing to instruct workers about whether to move a rock themselves or whether to call in the loader. 9 The judge said - "I accept that the regime of the employer was to impress upon workers that they were to maximise production. I accept that workers were instructed to remove rocks from the road and, if they were unable to do so, to call in the loader to achieve that result mechanically. I accept that rocks regularly did impede the roadway. I accept that workers regularly stopped trucks and physically moved rocks from the roadway, and that was in accordance with instructions. I accept that rarely were loaders available before 9.00 am. I reject the criticisms of the system by the plaintiff in most matters but not as regards the inadequacy of the system employed for the workers to decide whether to employ the mechanical loader or move the rocks themselves. Effectively, there were no instructions to the workers as to how each worker was to determine whether a rock would be physically moved or moved by machinery. It was left just to the judgment of each worker and no guidelines were given. I accept that Mr McLeod was very sensitive in his evidence to the potentiality of workers being injured in lifting or moving rocks. In my view, the system in place was inadequate in that there should have been clear guidelines as to which rocks were to be moved manually and which required the loader's intervention. It cannot be considered a safe system to allow workers to decide without any parameters how they will remove rocks. Leaving that entirely to the discretion of the driver, in my view, was negligent. The defendant well knew the weight of the rocks being moved. It was open to the defendant to give guidelines as to the size of rock that could be moved physically. It would be readily able to be calculated, the weight of a rock, by reference to its size. I accept that the plaintiff was a very enthusiastic worker. She was anxious to prove, in a male-dominated industry, that she was up to the mark. The instructions given to her were inadequate. At the time the incident occurred, the likelihood of her being able to have a loader come to assist her to remove the rock was low. I accept Mr Baker's evidence that there was only a 10 per cent chance before smoko that a loader would assist a worker. It was left to the discretion of the plaintiff to then decide to move the rock manually. It is a notorious fact, as is evidence in the courts over many years, that lifting or moving of heavy objects runs a risk of causing spinal injury. The defendant should have been aware of this. Indeed, I am satisfied the defendant was aware of it. Being aware of it, it was negligent in not putting in place a regime of conduct so that workers would know not to attempt to lift or move heavy rocks. The plaintiff, I am satisfied, was in the course of moving a heavy rock of the order of 2' x 2' x 2' when she suffered an injury to her lower spine. Had there been adequate instructions to the plaintiff and workers in her position, then, in my view, the plaintiff would not have attempted to move the rock concerned; she would have awaited the arrival of either fellow workers, but in a proper system, in my view, await the arrival of the loader. By exposing the plaintiff to such an unsatisfactory system, exposing her to relying upon just a discretion that had no parameters attached to it, the defendant breached the very heavy duty it owed the plaintiff, which was analogous to the duty owed by an employer. I am satisfied that that unsafe system of work caused injury to the plaintiff's back. I reject any suggestion by Mr McLeod that workers were instructed to always use or get access to the mechanical loader to move any spillage." 10 Boral challenged its liability in a number of ways. Its submissions were extensive and at times overlapped, and in what follows I have sought to encapsulate their substance. Waltron put some submissions essentially supportive of Boral's submissions.

(a) How Ms Watts injured her back 11 Boral submitted that Ms Watts most probably injured her back in picking up and throwing off the roadway two or three bits of rock of house brick size, rather than in rolling larger rocks off the roadway. If that were so, it said, the breach of duty found by the judge was inapplicable, and there was no breach of duty in requiring Ms Watts to move such small rocks off the roadway. 12 Ms Watts' evidence in chief, referring to driving along the roadway, was - "Q. And what happened when you got half way? A. I noticed approximately five rocks on the road. Q. And were you able to drive around them? A. No. Q. So what did you do? A. Got out of my truck and moved them. Q. What was the smallest one to the biggest one? A. Smallest one would have been close to two house bricks. Q. And the biggest one? A. Would have been about that square but round. Q. About, sorry? A. About that. Q. About two feet. A. Yeah. Q. Long? A. Yeah sort of a bit square. Q. Square? A. Yeah. Q. About two foot square and how deep? A. Two foot, I'm talking like a ball, like rocks are generally round. Q. Were you able to move the first few rocks? A. Yes --- Q. Did you feel any problems doing that? A. No. Q. Did you move the last one? A. Yes. Q. How did you move? A. Squatted next to the last two. Q. And what did you do with them. A. Pushed them. Q. Why didn't you pick them up? A. They were too big. Q. You pushed the first one off all right? A. Yeah it's on a hill. You've just got to get them started and sort of aim them towards the edge and off they go. Q. Pushed the second one off? A. Yes. Q. And what happened them? A. I felt a sharp pain. Q. Whereabouts? A. My lower back." 13 Boral submitted that this account of how Ms Watts injured her back should not have been accepted. 14 First, Boral said that Ms Watts' evidence in this respect was contrary to histories in the earlier medical notes and reports in evidence. The histories, giving the dates on which Ms Watts saw the practitioner, were -

(i) Dr Spooner, 1 December 1998: notes "Bent over today to pick up & throw rock (not particularly heavy does some every day) ? sudden pain in lower back"; report "she told me she bent over to pick up a rock and developed sudden pain in her lower back … ";

(ii) Dr Green, 2 December 1998: notes "got out of truck yesterday and threw rock off road ? back pain [? writing unclear] - pain getting back into truck";

(iii) Dr King, 28 January 1999: notes "Rocks had fallen on road on way up hill 2-3 house brick sizes Pulled up Threw rocks off road as straightened up acute lower back ache"; report "There were about 2-3 rocks the size of housebricks on the road. Ms Watts got out of the truck, bent down pick [sic] up the rocks and threw them off the road. As she straightened up she said she experienced acute lower back pain"

(iv) Dr Roberts, 1 July 1999: " … stopped and got out of her 35 tonne dump truck to remove rocks from the road. She said that she leant forward and picked up a few rocks and thrown [sic] them off the road but had tried to lift and throw a rock the size of two house bricks which immediately caused pain in her low back. She tried throwing the rock with her left hand only … ";

(v) Mr Grant (psychologist), various dates from 13 September 1999 to 26 January 2001: "She developed chronic pain after she hurt her back lifting some rock";

(vi) Dr Connolly, 15 October 1999: "She said they were only the size of about three house bricks but she was throwing them off the road and, as she did so, she got a pain in her lower back ….";

(vii) Dr Isaacs, 7 December 2000: "she stopped the truck to pick up some rocks off the road and as she threw the rocks off the road and started straightening herself up she felt pain in the lower back";

(viii) Dr Heard, circa 26 March 2001: "She was driving a dump truck and was picking up rock when she suffered acute lumbar pain";

(ix) Dr Sprott, 6 November 2001: " … a twisting injury to the lower back whilst lifting and turning";

(x) Dr Roldan, 23 May 2002: " … she found five or six large rocks the size of 'half a carton of beer' and probably weighing 30 kilograms each. She told me that she picked these rocks up and moved them off the road but when she reached for the fifth one she felt a 'creaking' sound in her lower back". 15 Of the authors of these notes and reports, only Dr King gave evidence. He did not have an independent recollection of the consultation on 28 January 1999, but said that he wrote down everything said by a patient which in his opinion was significant to understand the mechanism of injury, that in "threw rock off road" he most likely used the word used by Ms Watts, and that if she had told him of throwing small rocks off the road and rolling two larger rocks off the road he would most likely have recorded it; he said that he would have regarded rolling two larger rocks off the road as significant. 16 The judge asked Dr King whether the note as to "two or three house brick sizes" could mean rocks approximately as big as two to three house bricks, and he said that that was not his way of expressing size and that he "would say, from interpreting my notes, the rocks would each be the size of a house brick, approximately". The judge continued - "Q. Because as it's written there, it seems to me, equivocal -- A. Mm. Q. Would you agree with that or not? A. It could be -- Q. It could mean the rocks were two to three house bricks in size? A. It could be interpreted as that -- Q. Do you have an actual recollection of what she said? A. No, no." 17 In answer to Boral's counsel, Dr King then affirmed that he interpreted his notes as being two to three rocks each the size of a house brick approximately. 18 These histories were not fully put to Ms Watts in cross-examination. She said that it had always been her recollection that the rock she moved before injuring herself was "about 2 feet by 2 feet or a spherical shape", and that it was too heavy for her to lift off the ground. Dr Spooner's note was put to her. She did not dispute that it recorded what she had said but said that she was upset and in a lot of pain. She said that she told Dr King that the rocks were from the size of house bricks, and initially agreed that she told him that she threw the rocks off the road; reading this passage of cross-examination as a whole, however, it is evident she had no real recollection of what she told Dr King although saying that she demonstrated how she moved the rocks and that she had bowled them off the road. It was put to her that she did not tell Dr Green or Mr Grant that she was bowling large rocks off the road, and she answered "No": as I read the transcript, she was agreeing that she did not. She said that she told Dr Green that she had injured herself removing rocks from the road. She agreed that she did not tell Dr Isaacs that she bowled large rocks off the road, and said that she told him that she was moving rocks from the road. There is no doubt, however, that injury in the manner Ms Watts asserted was put in issue and raised with her. 19 Secondly, Boral said that Ms Watts' evidence was not consistent with the course of the pleadings and particulars prior to the hearing, as to which regard was had also to her evidence concerning the fishpond rock. 20 In the statement of claim filed on 29 January 2001 it was alleged that as part of her duties Ms Watts was required to remove heavy rocks that had fallen on the roadway and that "as she picked up the fifth heavy rock, [she] suffered severe injury …". In the further amended statement of claim filed on 13 October 2003 the latter part became, "While in the process of removing a rock or immediately thereafter the Plaintiff sustained injury … ". 21 By a letter dated 13 March 2001 Boral's solicitors asked for particulars of the "approximate dimensions and weight of the four previous heavy rocks and what was the approximate dimension and weight of the fifth heavy rock which resulted in the injury". The answer in a letter of 2 October 2001 from Ms Watts' then solicitors was - "The Plaintiff cannot provide approximate dimensions for the four previous heavy rocks. The Plaintiff has in her possession the fifth rock and we are currently obtaining same from the Plaintiff in order to obtain the dimension. This information will be provided to you in due course." 22 In a further letter from Ms Watts' solicitors dated 29 October 2001 it was said - "The fifth rock is presently in our office and is available for inspection. The dimensions of the fifth rock are as follows - Length: Approx 40 cm. Width: Approx 25 cm Height: Approx 25 cm Weight: Approx 20 kilo's [sic]" 23 Ms Watts agreed in cross-examination that the day after her injury she asked a fellow worker to obtain a particular rock. She did not agree that it was the rock she said she had "touched before injuring herself"; rather, it was a rock "on the side of the road that had a drill hole completely through it", one of the smaller rocks which she threw. She said that she wanted the rock for her outside fishpond, that it was in her fishpond for a while, and that she gave it to her then solicitors at their request. It was about a foot long and skinny with the drill hole through it. Later in cross-examination Ms Watts said that the fishpond rock was "the last one that I threw/bowled [sic]", before she pushed the two larger rocks. It was the only rock she gave the solicitors. 24 In further cross-examination, Ms Watts said that Mr Kilpatrick of the solicitors initially handled her case, then Ms Grguric; that she told Mr Kilpatrick that she had one of the rocks she had moved but not that it was the fifth rock; that she gave the fishpond rock to Ms Grguric; and that she gave the rock to her solicitors because they asked for it and she could only speculate why. She was asked whether she was told why they wanted the fishpond rock. Objection was taken on the ground of privilege and the question was rejected. 25 Neither Mr Kilpatrick nor Ms Grguric gave evidence. No explanation for their failure to do so was given. 26 An arbitration was held in October 2002, following which Ms Watts changed her solicitors and counsel and the allegation was reframed in the further amended statement of claim of 13 October 2003. It was put to Ms Watts that until the change in representation her instructions had been that she was injured picking up the fifth rock, which she denied. The implication of a change of instructions following the arbitration and change in representation was not taken further. 27 The judge said of these matters - "She was cross-examined at length about various histories she was said to have given to doctors. Those histories were said to be inconsistent with the evidence she gave before the Court. I have taken into account her answers on those issues. My view of the plaintiff as regards those alleged prior inconsistent statements was that she was unlikely to be a person who would be giving great detail as to how an accident happened when being seen by doctors, and she was unlikely, in my view, to be turning her mind to the need for complete accuracy when seeing the doctors. I am also cautious about accepting histories, as regards detailed information as to the occurrence of an event, allegedly given to treating doctors. It is one's general experience that medical practitioners are far more concerned with knowing just the mechanics of how the injury occurred and thereafter much more intent on seeking to remedy the symptoms. As I say, I am cautious as to how much weight I can give to the histories said to have been recorded by the doctors. I thought the plaintiff was reasonably credible when answering questions put to her on those recorded histories. She was prepared to give answers which, on one view, could be unfavourable to her case. She did not give me the impression that she was seeking to deceive me. She was taken to details as to the number of solicitors who had been employed by her in this action and particulars she had given to those solicitors. She was specifically cross-examined about answers given to particulars sought by the defendant. The answers were tendered by the defendant in the matter. I have taken those into account. I accept that there is some variability in the history given by the plaintiff and the particulars given by the plaintiff, but I have formed the view, as I watched and listened to her and considered other evidence, that she was trying to be truthful with the Court when she gave her version as to how the accident happened. I prefer the version that she has given in her evidence as being the likely scenario of circumstances at the time of the accident. She confirmed that she had moved three of the small rocks away and that there was then room for her truck, but she decided to move the two larger rocks." 28 Later in his reasons the judge said - "My impression of the plaintiff was that she was attempting to give honest evidence before me. I did not form the view she was seeking to deceive me - she made concessions against her interest. Although I approached her evidence cautiously, having regard to the different histories attributed to her in doctors' notes and similar reports and in regard to the somewhat chequered litigation history, I formed the view that the version of the accident she gave before me was more than likely to have been true. I have, as I have said, taken into account the answers to particulars that she gave. I have formed the view that her injury occurred when she was seeking to manipulate heavy rocks on the roadway at the quarry." 29 Later again the judge said - " … There had been interposed in the plaintiff's evidence a witness called by the defendant, being a Dr King. He gave evidence as to the history he obtained from the plaintiff. That history included the plaintiff telling him, when he consulted her on 28 January 1999, that some rocks had fallen onto the road, that there were two or three house-brick sizes, that the plaintiff had pulled up, thrown the rocks off and, as she straightened up, she noted backache. It was his view that that history was the only one given to him by the plaintiff at that time. It was his view also that it was most likely the plaintiff had used the word 'threw' in relation to the way she dealt with the rocks. He interpreted his notes as meaning that the plaintiff had said there were two to three rocks, each of house-brick size. Clearly, the notes are equivocal, in my view. He conceded in cross-examination, however, that he did not record histories from patients word for word; it was his understanding of what had been said. As I have observed earlier, I think doctors are often more concerned with treating the injured patient than getting detailed histories. My impression, having listened to Dr King, was that I should be cautious about accepting his summary of what was said as being an accurate account of the plaintiff's version of the accident. If it had been accurately recorded, I am cautious about accepting that the plaintiff would have truly turned her mind to the full circumstances of the accident." 30 Boral submitted that the judge was not entitled to take into account "general experience" of what medical practitioners were concerned to know, and that although he referred to the particulars provided by Ms Watts' solicitors he failed to refer to the change in the statements of claim from picking up the fifth heavy rock to removing a rock. It said that the judge could not have regarded Dr King's notes as equivocal when Dr King had affirmed their meaning. And it said that, while the judge had accepted Ms Watts' truthfulness, he had failed to address whether she was reliable in her recollection. Apart from those specific deficiencies, Boral submitted that Ms Watts' evidence of how she suffered her injury was inconsistent with the histories and the early pleadings and particulars, including as to the smaller rocks which had grown to being close to two house bricks; that her explanation of the fishpond rock was far fetched; and that although the judge's finding was credit-based it was appealably wrong. 31 The restraint on setting aside a trial judge's credit-based finding of fact was recently re-stated in Fox v Percy (2003) 214 CLR 118. From the joint judgment of Gleeson CJ and Gummow and Kirby JJ at [23]-[31], the finding may be set aside if it is shown to be wrong by incontrovertible facts or uncontested testimony, or if it is glaringly improbable or contrary to compelling inferences. The trial judge's advantages should be recognised, although they do not preclude appellate review. McHugh J at [65]-[93] paid particular regard to the trial judge's advantages, and affirmed the principles stated in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-9. 32 The judge was alive to the matters on which Boral relied, and accepted Ms Watts' evidence notwithstanding them. He had the advantage of seeing and hearing Ms Watts give her evidence, including an extensive cross-examination, and his references to truthfulness plainly encompassed the reliability of her recollection. I do not think the histories show incontrovertibly that his finding was wrong, or the pleadings and particulars and associated evidence, or both together. There was no doubt that Ms Watts injured her back, and the judge's caution in the weight he gave to the histories as recorded was open to him, and particularly so when the histories as recorded were brief and varied; I do not think the reference to "general experience" was any more than an expression of available reasoning, and the caution was properly taken into account. Ms Watts' evidence concerning the fishpond rock was explicable as a misunderstanding of her solicitors, and was not impossible of belief so as to point to what could hardly have been less than conscious embroidery of her case. I am not persuaded that, within principles of appellate restraint, the judge's finding was appealably wrong. 33 Boral relied in particular on Bootle v Kettlewell (1993) Aust Torts Rep 81-250. The issue was whether the plaintiff was the passenger in or the driver of the car at the time of the accident. The trial judge's credit-based finding that she was the passenger was set aside on appeal, because the contemporaneous records of her statements to and observations of the police officer, the ambulance officer and the hospital staff was to the contrary and there was no satisfactory reason for her to say she was driving when she was not. The alleged driver had not given evidence, and the plaintiff and the alleged driver were in a close personal relationship. These facts were very different from, and stronger than, those of the present case.

(b) The system of work 34 Boral submitted that the judge must have found that drivers were instructed to remove all rock from the roadway, whether or not the rocks were blocking the path of the dump truck, and that this was erroneous because rocks were only to be removed if they blocked the path of the driver's truck. As I understand the submission, it said that if the instruction was only to move rocks blocking the paths of the trucks, the breach of duty found by the judge was of no relevance to the circumstances in which Ms Watts injured herself. The submission essentially went to causation. 35 It is preferable to ask what was the system of work, rather than what drivers were instructed to do, since the system of work need not have been the product of express instruction. I do not think it was disputed that the system of work as found, within which the breach of duty occurred, must have extended to moving rocks from the roadway even if they were not blocking the paths of trucks. 36 Ms Watts gave evidence that when she began driving a dump truck she was told by Mr McLeod of Boral not to drive over rocks on the roadway, because the very expensive tyres on the trucks could be damaged. She was told by him to get out of the truck and manually remove the rocks, and if the loader was around to call and get assistance. She said that when another driver, Mr Maningrove, gave her training he told her to get out of the truck and move the rocks, calling the loader if necessary, and that the foreman Mr Kaling told her the same, as did "everybody at the quarry". In cross-examination Ms Watts agreed that Mr McLeod's instruction was not to clear the roadway of all rocks, but "just clear path" and move the rocks obstructing the roadway. 37 This, however, did not give a full picture of the system of work in the circumstances presented to Ms Watts. While Ms Watts agreed that, on the occasion of her injury, there was sufficient space to drive around the larger rocks after disposing of the smaller rocks, and that there was no need to move the larger rocks to prevent the tyres of the truck hitting the rocks, other evidence showed that clearing the roadway was understood and acted upon more widely. 38 Mr McLeod gave evidence that the trucks were to be "kept moving", to ensure no impediment to productivity, and agreed that it was "utterly vital" to make sure there was "no prospect" of a tyre being damaged by running over or scraping alongside rocks. He was also concerned about injury to workers from a tyre blowing out. He agreed that the instruction was that the roadway must be kept clear, and with reference to Boral's "Workplace Safety Rules", a copy of which was provided to Ms Watts and included that good housekeeping required that roadways "must not be obstructed by any materials", that the instruction meant that if hitting rocks on the road was seen as a potential danger the rocks should be removed. With some equivocation, he agreed that that meant clearing the roadway where there was a potential danger of hitting a rock, and clearing the surface of the roadway "potentially available for a vehicle to pass over with an obstruction on it". 39 On a proper understanding of Mr McLeod's evidence, I do not think that rocks could be left on the roadway if the trucks could be steered around them. Even if they could be steered around, rocks might be run over or scraped by inattentive driving, and the substance of Mr McLeod's evidence was that the roadway was to be cleared of spilled rocks so that there was no real possibility of damage to the expensive tyres, injury to workers or break in productivity. 40 This came out in the evidence of Mr Baker, who drove a loader and a dump truck at the quarry. He said in stark terms that, where there was a spillage of rocks on the roadway, "[y]ou were expected to clean it up". He said that he did so, including rocks up to 200 kilos by rolling them off the roadway. He called the loader if available, but it was not always available. The reason given to Mr Baker by Mr McLeod was tyre damage. Mr Baker said, "[i]f you run over a rock you'd blow a tyre, if you blew a tyre the truck is out of production", and productivity was "held at the highest, it's all go". 41 Mr Baker's immediate response to the suggestion in cross-examination that he would not stop and clean up a spillage if he could drive around it was "you couldn't drive around it". There was put to him moving three small rocks blocking his path and two larger rocks two to three feet from the edge of the roadway, and he said he would stop and move them all; when there was specifically put to him that he could drive around the larger rocks he agreed that he would drive around them rather than risk injury moving them, but added "if it wasn't a hazard". The careful cross-examination produced what I read as constrained answers, as became apparent in re-examination. Apropos of driving around rocks on the roadway he said that "if there was rocks on the road it doesn't matter where you were crossing you were expected to get them off the road at all times, you were always expected to keep the roads clear", and that "[t]he bottom line is that there was rocks on the road you had to move them and if the team leader has come down and seen rocks on the road, yeah, you were asked to explain". 42 The risk of tyre damage had to be taken seriously by the drivers. Mr Baker said, explaining that "driving over" meant the chance of a tyre going over the top of a rock and referring also to scoring a tyre driving past, that he was told "if I got caught driving over rock that I wouldn't have a job". It was not just the expensive tyres, but in the eyes of management was a question of productivity. Keeping production flowing was a reason to remove the rocks immediately, because if there was tyre damage a truck would be taken out of service; but the emphasis on avoiding impediment to production was plainly enough as a workplace rule, not dependent on calculation of the actual effect of any interruption in the flow. In my opinion, the evidence amply justified a finding that drivers were expected to remove rocks from the roadway whether or not they were blocking the paths of the trucks. Rocks were regarded as obstructing the roadway, and to be cleared from the roadway, if they could possibly be run over or scraped against. This was quite understandable in order to reduce the risk of tyre damage and impediment to production; it would not have been sensible to require drivers to slalom around rocks or keep only to that part of the roadway which was unimpeded. I do not think the judge erred in finding that the system of work extended to removing rocks from the roadway even if they were not blocking the paths of the trucks. 43 As a particular matter, Boral submitted that the judge erred in admitting evidence of instructions to and the "expectation" of workers other than Ms Watts. The paradigm case was the evidence of Mr Baker. There is nothing in the submission. The evidence went to establish the system of work. The instructions of which Ms Watts gave evidence were to be understood in the light of the wider evidence, and were not all that moulded her conduct; nor were they the sole basis of the system of work.

(c) Beyond the case at trial 44 Boral submitted that the breach of duty found by the judge was not Ms Watts' case at the trial, and first emerged in her counsel's submissions at its conclusion. It submitted that the case at trial was limited to a case that Ms Watts was instructed to remove rocks which blocked the path of her truck and thus adversely affected the carriage of rock to the crusher, and was instructed that she was required to move the rocks manually whatever their size. The breach of duty found was as to movement of rocks whether or not they blocked the path of the truck, and contemplated that the loader might be used. This, it was said, was a case which had come about when it was conceded in cross-examination that the rocks which caused Ms Watts injury did not obstruct the path of her truck, and it was submitted that Boral did not have a fair opportunity to meet the breach of duty found. 45 The case as pleaded and particularised in the still further amended statement of claim was not limited in the manner suggested. The particulars included that Ms Watts had been directed "not to pass over the rocks without removing them from the path of the vehicle". They went further, however, extending to failure to take reasonable steps to prevent her from removing the rocks and the generalities of failure to provide a "reasonable safe system of removal of the rocks" and failure to ensure the health, safety and welfare at work of all employees. 46 The opening was consistent with the breach as found. The judge was told that Ms Watts would give evidence that she was expected to move by hand whatever she could move and that another driver would give evidence that they had to move large rocks and sometimes get help to move them manually because the loader was not available; he was told - " … the plaintiff's case here is your Honour, is that the overriding instruction that rocks had to be moved, and there was no limitation on what had to be moved in terms of size , she had to do all that she could possibly do to get these big rocks off the road, to avoid the tyres being damaged. And she will tell you that that was a regular feature of the job and I anticipate another witness will tell you exactly the same." (emphasis added) 47 It can hardly have been thought, in the course of the trial, that Ms Watts' case did not involve moving rocks whether or not they blocked the truck, and possible use of a loader. The evidence in chief was that the loader was to be used if necessary. While Ms Watts was under cross-examination there was an exchange between the judge and counsel, in which Boral's counsel said that a document signed by Ms Watts concerning safe lifting was irrelevant because the instruction was only not to drive over the rocks. Ms Watts' counsel said "and remove them". The judge said that management would not expect the rocks would be left if there were a "fine gap" through which the truck could be driven, and after agreement from Boral's counsel said - "HIS HONOUR: Surely one would think that if you're out on the road you move the rocks that's caused you to stop. You may persuade me otherwise but surely that would be point [sic] - and that may be reinforced by that document if it comes into evidence saying that the road's to be kept clear." 48 The substance of the evidence, as earlier described, was that the drivers were expected to get out of the trucks and move the rocks, even large rocks, but could call for the loader if it was available. Ms Watts was not specifically asked about instructions upon which rocks should be left to be moved by the loader, but her evidence was quite against any guidance on that, and the cross-examination of Mr McLeod included - "Q. And one of the tasks that you've told his Honour about involved the possible presence of rocks on the roadway? A. Yes. Q. No doubt that was something that you discussed with the plaintiff that this might happen in the quarry? A. Yes. Q. Well you gave some evidence, you told his Honour that you told everybody as a matter of your practice in relation to the rocks, not the strain, I thought you said, use the crane, although I may be different [sic] --- A. Yes, Q. And use the loader? A. Yes. Q. Well what did you mean by, use the crane? A. Of if there was a rock - what I - in the induction I didn't want people lifting loads. I would say use a crane, or use the loader, don't lift heavy loads. Q. I see. Well did you define heavy load? A. No, I didn't. Q. Well did you assess her capacity to make that decision? A. No, I didn't. Q. That's one of the things surely that you would have been concerned about for her to assess whether she had the necessary skills and experience to perform the tasks allocated? A. The - my assessment of Vicki relied heavily on the leading hand who I'd given Vicki to to go for a ride with and she would spend some time with that operator. And then he would report back to me on what he - how he assessed the operator, whether it be Vicki or anyone else." (emphasis added) 49 A little later in the cross-examination of Mr McLeod instruction upon what rocks to leave was again raised - "Q. And you've told us that the words you used were, don't strain? A. Yeah. Q. Presumably you used that in the context of physical lifting? A. Yeah. Q. But you didn't specify to her at any stage what criteria she should adopt in terms of whether she should --- A. No, I didn't. Q. You left that to her discretion? A. The training in the truck with the driver is important to show her the route, to show her you know basically how we operate within the quarry." 50 Ms Watts' submissions to the judge were to the effect that drivers were to remove rock spillages, including heavy rocks and rocks not in the immediate paths of the trucks, with the expectation that the rocks would be removed if it could safely be done but no instruction as to size or weight of rocks which should be left for the loader. It was said that Boral should have "implemented a policy and practice" which included "not to attempt to remove rock spillages over a specified dimension or size". Boral's submissions to the judge included that the case was not conducted on that basis. In this Court, Boral complained that the judge did not determine its objection to the new case or give reasons for allowing it to be put. 51 His Honour plainly enough did not consider that it was a new case, and was correct. In the circumstances I have described, it is impossible to say that Boral did not have a fair opportunity to meet the breach of duty found. There was no necessity, in the circumstances, for the judge to spell out why.

(d) Causation 52 Boral submitted that, because the larger rocks did not block the path of Ms Watts' truck, the cause of her injury was her decision to move the rocks rather than any deficiency in the system of work. It said in particular that Ms Watts could have radioed for a loader, and that even if (which was disputed) she was in a radio black spot, she would have had radio contact within minutes after driving on, or that she could have waited for help from the driver of the next truck using the roadway in the shuttle service. It said that keeping production flowing was not a reason to attempt immediate removal of the rocks, since the times involved in obtaining assistance from a loader or waiting for the next truck were small and stockpiling at the crusher meant that a brief delay was of no significance. It said that Ms Watts knew about correct lifting procedures, and the risk to her from moving a heavy rock was obvious, and she should have realised that the larger rocks were not to be moved manually. Further, it was said, there was no evidence from Ms Watts that, if she had been instructed not to move rocks of the weight of the larger rocks, she would have obeyed the instructions. 53 Although not in the category of repetitive work under strain (Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309), there was a strong possibility that drivers would move rocks beyond safe capacity of manual movement. This was not a case such as Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204, in which a person experienced in the work could be expected to perceive an obvious workplace risk and avoid it. A system of work in which workers were not exposed to attempting unsafe movement of rocks, because of the stress on keeping the roadway clear in order not to impede production and the times when the loader was not available, was required. As was said in Czatyrko v Edith Cowan University (2005) 79 ALJR 839 at [12] - "An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work." 54 The matters the subject of Boral's submission occupied some time at the trial, but they did not meet the basis of Boral's liability. No doubt Ms Watts could have acted as suggested, but she did not. She did not call for the loader or wait for the next driver, because the expectation was that rocks should be moved off the roadway when they were encountered. The roadway was to be kept free of rocks, to avoid the risk of interruption to production, and the loader was generally unavailable at that time of the day. In the absence of instructions as to what rocks to move and what to leave, Ms Watts attempted to move the larger rocks. Following the system of work was not an independent causal act, and the deficiency in the system of work was leaving to her the decision to move the rocks. 55 It was well open to the judge to conclude that, if Boral had provided instructions on the size of rocks to be moved manually, Ms Watts would have obeyed the instructions. Boral's submission in this respect is a little odd in that it postulates that Boral's system of work would have been ineffective. No point was taken that the appropriate guidelines may have been such that the larger rocks moved by Ms Watts were within permitted manual movement, apparently because a rock of the dimensions which the judge found was moved was recognised as being beyond safe capacity of manual movement.

Contributory negligence 56 The judge said - "On the issue of contributory negligence, I have found that the defendant had an unsafe system of work. It is only in exceptional circumstances that a finding of contributory negligence, in my view, would be made in such a matter. The plaintiff was an enthusiastic worker. She did the job as directed by her superiors. What she was doing at the time of her injury was moving a rock which, in her discretion, she should move so as to maintain production. It was foreseeable that the plaintiff would do exactly what she did in the occasioning of this injury. I am unable to be satisfied by the defendant that there was any contributory negligence." 57 Boral submitted that Ms Watts knew about correct lifting procedures and that she should take care to prevent injury to herself, that there were alternatives open to her, and that a "substantial deduction for contributory negligence was warranted". 58 In McLean v Tedman (1984) 155 CLR 306, in which the plaintiff was injured when following an unsafe system of work where the employer either failed to establish a safe one or acquiesced in the unsafe one, it was said at 315 - "The issue of contributory negligence presents a little more difficulty, as the primary judge acknowledged. However, we are inclined to think that the difference between the approach adopted by the Full Court and that adopted by the primary judge largely reflected the difference in attitude to Brambles' responsibility in providing a safe system of work. The issue of contributory negligence has now to be approached on the footing that Brambles failed to discharge its obligation to provide a safe system, that is, to take appropriate precautions against the risk of injury arising from the motorist's negligence and the employee's failure to observe an oncoming vehicle as he carried out his allotted task. The question is whether that failure should be characterized as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognized distinction between the two. It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact." 59 Inattention and inadvertence has also been referred to as thoughtlessness, and in Ghunaim v Bart [2004] NSWCA 28 at [61]-[65] McColl JA said - "61 The notion of "thoughtlessness" referred to in Bourke v Butterfield is also expressed in synonyms such as temporary inadvertence to danger, lapse of attention, taking of a risk, carelessness by an employee due to confusion, fatigue or natural slackening of attention or preoccupation in what he or she is doing. In Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 176, Lord Wright, speaking of the degree of want of care which constitutes contributory negligence, said '[t]he jury have to draw the line where mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins'; see also John Summers & Sons Ltd v Frost [1955] AC 740 at 777. 62 Lord Wright's metaphorical reference to drawing the line should not obscure the fact that the question whether an employee has been guilty of contributory negligence is one of degree. The authorities upon which the appellant relies are useful illustrations of how the court should approach the task of distinguishing between thoughtlessness and negligence. 63 The fact that there is no clear demarcation between an act done without reasonable care for one's own safety and an inadvertent, thoughtless act was emphasised in Sungravure Pty Limited v Meani [1964] HCA 16, (1964) 110 CLR 24 by Kitto, Menzies and Owen JJ. Referring to a submission on behalf of the respondent (plaintiff) that he had merely acted thoughtlessly or inadvertently and not negligently and that in those circumstances a finding of contributory negligence should not be made, the majority said (at 33): 'An inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it, and whether it is so or not is a matter for the consideration of the tribunal of fact.' 64 Windeyer J set the matter in context, saying (at 36-37): 'A safe system of work is one that is safe for the average workman taking reasonable care for his own safety. It is not a system which is safe only for persons of superior skill whose attention never wanders…. In the press of affairs anywhere a need to act promptly may sometimes lead to something being done, which has unfortunate results, but which is attributable to an error of judgment rather than a blameworthy want of due care.' 65 In Commissioner for Railways v Halley (1978) 20 ALR 409 at 415, Jacobs J emphasised that it was not sufficient for an employer seeking to establish that an employee was guilty of contributory negligence merely to demonstrate that the employee knew the task at hand was 'highly dangerous'. … " 60 In the present case the circumstances in which Ms Watts had to do her work included the expectation that rocks were to be moved, under pressure of avoidance of tyre damage and interruption to productivity, and the likely unavailability of a loader. As indicated by the judge, it was foreseeable that Ms Watts would do exactly what she did. Her attempting to move the larger rocks was brought about by enthusiastic following of the unsafe system of work, and in my view was not on the negligence side of the line.

Waltron's contribution 61 Ms Watts had worked driving machinery elsewhere in New South Wales, then moved to the Central Coast and registered with Waltron and other labour hire organisations for work. For some time she worked as a traffic controller for the RTA. She was having difficulty in getting further work, and approached Boral. She began work for Boral, but after a few days Mr McLeod said that she should "update [her] registration" with Waltron because it would be paying her wages. She did so, and was hired out by Waltron to Boral. The arrangement was not further explained, but Ms Watts said that she contacted Waltron about (for example) work clothing and that, although she did not see them, Waltron personnel came on site. 62 Waltron accepted that it was Ms Watts' employer and owed her the non-delegable duty of care owed by an employer to an employee. 63 The judge said - "On the issue of the cross-claim, the cross-defendant is the employer. The cross-defendant owes the plaintiff a duty to take reasonable care. The hallmark of a system is reasonableness. In finding that the defendant breached the duty, I have not resorted to a perfect system, just a reasonable system. In my view, the cross-defendant did virtually nothing to protect the plaintiff from the injury that she suffered, or the risk of the injury she suffered. There is no evidence called by the cross-defendant. There is no evidence that the cross-defendant was aware of the system of work in place. There is no evidence that the cross-defendant even enquired as to whether workers were expected to, on their own judgment, physically move heavy rocks. The employer cross-defendant seems to have taken the attitude that it could discharge its duty to the plaintiff by virtually doing nothing and abdicating its duty to the defendant. In my view, a fair apportionment between the parties is 60 per cent to Boral and 40 per cent to the employer cross-defendant. I have attributed a higher percentage to Boral because Boral was the organisation that put the system in place, it had day-to-day contact with the plaintiff, and its responsibility, in my view, was greater." 64 The relevant grounds in Waltron's cross-appeal were - "1. His Honour erred in not holding that it was just and equitable that there be no contribution by the Appellant to the Respondent with respect to the Plaintiff's judgment.

2. Alternatively the finding of 40% contribution was manifestly excessive in the circumstances." 65 These grounds accepted that Waltron would have been held liable to Ms Watts if sued, and were directed to the extent of its contribution including that the contribution should be nil. Waltron's written submissions at one point said that "[t]he claim against Waltron fails on the issue of causation". The argument was to the same effect as Boral's argument earlier considered. It is not entirely clear whether Waltron meant that the claim against it failed because the claim against Boral failed on the issue of causation, so there was nothing to which it could be required to contribute, or that the notional claim against it would have failed on the issue of causation, so that it could not be required to contribute. If the latter, it does not seem to have been within the grounds of appeal. In any event, for reasons earlier given the causation argument should not be accepted. 66 The constraints upon appellate intervention in the judge's apportionment are well established, see Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 537 - "A finding on a question of apportionment is a finding upon 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. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed." 67 Waltron submitted that Ms Watts was known to it as an experienced driver, and that on 13 February 1998 she completed for it a "lifting questionnaire" in which she answered questions demonstrating that she knew the proper way to prepare to lift, to lift and to carry a load. It referred also to Ms Watts' resume, in which she said that she had "[e]xcellent OH&S workplace knowledge", although it was not clear that the resume was provided to Waltron: for present purposes I will assume that it was. It said that Ms Watts first approached Boral herself, and asked to be registered or reregistered with Waltron so that she could be employed by Boral, and that if Waltron had enquired into Boral's system of work it would have been told that the loader was available to move heavy rocks. 68 The thrust of the submission was that Waltron was entitled, in the knowledge of Ms Watts' experience and the availability of the loader, to regard the system of work as satisfactory because Ms Watts could be relied on to exercise sound judgment in not moving heavy rocks but instead calling for the loader. It was said also that Waltron had no "access" to assessing Boral's system of work in any greater depth. 69 I do not think there is any substance in the submission. If Waltron had properly enquired into Boral's system of work, it would have been told that the loader was not always available to move heavy rocks, and would have found out that (as Mr Baker said) if there were rocks on the road the driver was expected to get them off the road. It would have found out that drivers moved heavy rocks manually, and without guidance on when to call for the loader if it was available. But so far as the evidence showed, Waltron did not enquire; it left its employee exposed to what, to it, was the unknown. The basis for the judge's apportionment was well open, and no reason has been shown to vary the apportionment.

Costs 70 Waltron did not dispute that the judge could revisit and add to his earlier costs orders. 71 The judge's reasons for the 40 per cent costs order were - "I conclude that the cross defendant did test much of the plaintiff's evidence, not so much in a lengthy cross-examination but it adopted much of the evidence elicited by the first defendant's cross-examination. It made a number of submissions relating to the evidence. In that sense it clearly prolonged the plaintiff's case and it had the benefit of the material elicited by the defendant in cross-examination. In my view, when I look at the cost situation as a whole, it would be fair that the cross defendant bear the proportion of his responsibility for the plaintiff's injury, namely 40 per cent as regards any cost order payable by the defendant." 72 Waltron submitted that the order was made because, in the judge's view, it "prolonged the plaintiff's case" and "had the benefit of the material elicited by the defendant in cross-examination". It said that it had not prolonged the case, and that his Honour's exercise of discretion had therefore miscarried. Although unstated, this treated the costs order as in the nature of a Bullock order. 73 Waltron did not call evidence. Its cross-examination of Ms Watts and the other witnesses called by Ms Watts and Boral was not extensive. In any instance of a defendant's claim to contribution, the cross-defendant is entitled to participate in whether the defendant is liable to the plaintiff, including by taking advantage of the defendant's cross-examination and by seeking to seek to elicit material which may reduce its responsibility for the damage of which the plaintiff complains. The fact that Waltron did so, not in an excessive manner, could not in my opinion warrant a Bullock order against the defendant. 74 It is not clear, however, that the judge's order was by way of a Bullock order, or that his reasoning was as Waltron submitted. His Honour considered that Waltron should bear the same proportion of responsibility for both the verdict and the costs payable to Ms Watts. He may have been doing no more than note that Waltron had contested its liability to contribute and the extent of contribution. The judge appears in the end to have considered that, in the exercise of his discretion, Boral's costs burden should attract the same contribution. Boral put a submission to this effect. 75 Regrettably, neither party adverted to the many cases demonstrating that contribution is ordered in respect of the plaintiff's costs as well as his damages, or to the recent decisions that the order is made not as an exercise of discretion but as a matter of right: see James Hardie v Wyong Shire Council (2000) 48 NSWLR 679, especially at [14], [23], [33], [43]-[44], followed in Misiani v Welshpool Engineering Pty Ltd (in liq) [2003] WASC 263. Even if it were a matter of discretion, many cases have extended a percentage contribution as to damages to costs, see for example Patten v Moffatt (No 5) [1999] NSWSC 1322; Proctor & Gamble Pty Ltd v Australian Slatwall Industries Pty Ltd [2001] NSWSC 398. 76 Even if the judge made the costs order on an incorrect basis, it was the only order properly to be made in the exercise of his discretion and, more correctly, the order to which Boral was entitled as of right.

Orders 77 I propose that the appeal and cross appeal be dismissed with costs. 78 SANTOW JA: I agree with Giles JA. 79 YOUNG CJ in EQ: I agree with Giles JA. **********

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