Curtis Barrier's liability to the plaintiff
103Curtis Barrier's liability in negligence as the company with contractual responsibility for the installation of the plastic membrane where the use of Aggcon's employees was integral to that process falls to be determined in accordance with the Civil Liability Act .
104In final submissions, Curtis Barrier resisted liability for the plaintiff's injuries on a number of interrelated bases although (unhelpfully) not referable to the governing sections of the Act.
105Counsel's primary submission was that Curtis Barrier's duty of care to provide a safe system of work did not extend to instructing the plaintiff in the safe operation of the front end loader as they were entitled to rely on Aggcon to supply an operator who was appropriately skilled and competent to deploy the plastic in accordance with the method it had designed, including the modifications it was necessary to effect to the front end loader. Curtis Barrier's duty, so it was submitted, was limited to effecting the modifications safely and designing a safe work method using the vehicle configured in that way. It was implicit in this submission that Curtis Barrier claimed to have discharged its duty without relevant breach.
106The matters to be considered in determining whether duty has been breached are set out in ss 5B and 5C of the Civil Liability Act :
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
107Counsel for Curtis Barrier did not direct submissions to these as the governing sections perhaps, not surprisingly, since Mr Curtis and Mr Dakin acknowledged the foreseeable risk that the front end loader might become unstable on the batter, particularly under load. Counsel's submissions did not attempt to deal with the expert evidence that the front end loader, modified to conform with Curtis Barrier's methodology, positively increased the risk of it becoming unstable, and further, that configured in this way, if the vehicle traversed the batter (for whatever reason) there was a grave risk of it tipping over, or with the fact that the JSEA failed to contemplate the risk that an operator of the front end loader may (in error) seek to traverse the batter even if the two alternate approaches expressly provided for were not altered. Counsel described these approaches as a supplying a "self limiting aspect" to the process. Be that as it may that does not address the issue of breach as a matter of law.
108Further, counsel's submission also ignored the necessary interdependence between Curtis Barrier's staff and Aggcon's staff engaged in the process of installing the membrane, and that it was Curtis Barrier's contractual responsibility to coordinate that process. In Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 Mason J at 31 described a similar process as calling for:
... the prescription and provision of a safe system by Brodribb [Curtis Barrier]. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.
109I am satisfied that in this case the provision of a safe system for lining the pond necessitated that Aggcon's staff (in this case the plaintiff) were instructed by Curtis Barrier (in this case Mr Dakin) not only as to what was to be done to deploy the plastic but that in that process the front end loader was only to ascend (and descend) the batter strictly on the vertical. Even accepting that Mr Bromage proposed that the plastic be installed in the corner of the pond using the front end loader contrary to the method Curtis Barrier had designed (a finding which I regard as borne out by the evidence), that did not alter the fact that Curtis Barrier had the obligation of making an assessment of the risk of using the front end loader in that way inclusive of an assessment of the possibility that an operator might deliver the plastic to the bobcat by approaching at an angle to the corner. Because the evidence reveals that were a risk assessment undertaken it would necessarily have identified an unacceptable risk of the vehicle tipping under load, the approach to lining the corner proposed by Curtis Barrier as "Approach 2" should have been adhered to and Mr Bromage's views disregarded. Curtis Barrier was obliged, both under contract and under the general law, to undertake the task of lining the pond safely. Where there was a foreseeable risk of injury they were not entitled to rely on the demands of an Aggcon employee that it be done differently, or to subjugate their own expertise to accommodate the views of Mr Bromage.
110Strictly of course, it was not the inversion of the use of the front end loader and the bobcat that prompted the plaintiff to approach the corner of the pond at an angle (thereby traversing the batter), but the instability he experienced on the upper ridge of the pond. Curtis Barrier required the front end loader to travel from the base of the pond to the ridge carrying a roll of plastic irrespective of whether the plastic was to be fixed in the corners or on the batter and, as I have found, no instruction was given that this be strictly on the vertical. For this reason Mr Bromage's intervention does not extinguish Curtis Barrier's liability although it will have a bearing on the issue of apportionment.
111In final submissions counsel for Curtis Barrier appeared to rely upon the plaintiff's expert evidence in support of the proposition that it had no duty to warn the plaintiff against the risk of the front end loader tipping over because it was an "obvious risk" and, for that reason, that it was not liable in negligence in accordance with s 5G of the Civil Liability Act . Not only was this contradicted by the case Curtis Barrier advanced at trial (to the extent, at least, that both Mr Dakin and Mr Curtis gave evidence that there was a foreseeable risk of the front end loader tipping over requiring warning) but the submission was not developed further, either by reference to the evidence or Division 4 of the Civil Liability Act or authority. It was not pleaded in Curtis Barrier's filed defence. It was not addressed by the plaintiff's counsel at all in submissions and no evidence was led from the plaintiff to address the operation of the section.
112Division 4 of the Civil Liability Act deals with the question of assumption of risk. Section 5H(1) provides that the defendant (in this case Curtis Barrier) does not owe a duty of care to another person (in this case the plaintiff) to warn of an obvious risk to the plaintiff. Subsection (2) provides:
This section does not apply if:
(a) the plaintiff has requested advice or information about the risk from the defendant, or
(b) the defendant is required by a written law to warn the plaintiff of the risk, or
(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.
(The exclusions have no application in this case.)
113Section 5F defines "obvious risk":
(1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable
114Section 5G provides that:
(1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
115In Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [75]-[76], Beazley JA (with McColl and Basten JJA agreeing) summarised the relevant law as providing, inter alia, that the question of obvious risk is determined objectively requiring a determination as to whether the injured plaintiff's conduct involved a risk of harm which would have been obvious to a reasonable person in the plaintiff's position. This requires an identification of the particular circumstances in which the risk materialised and the extent to which the position of the plaintiff (including his knowledge and experience of the relevant area and condition) are to be ascribed to a reasonable person. While s 5F requires a focused consideration of the precise risk of harm (which in this case can be readily identified), the individual circumstances of the plaintiff, in the position of a reasonable person operating the front end loader, also need to be considered. Since neither counsel advanced submissions directed to this issue I do not propose to undertake an analysis as to whether a reasonable operator (which may or may not include a certified operator) would have discerned that the approach to the batter taken by the plaintiff carried an obvious risk of harm. I do note, however, that Mr McClymont, an experienced plant operator, was cross-examined by counsel for Curtis Barrier, apparently with a view to establishing the plaintiff's lack of competence or his contributory negligence or both. He gave the following evidence:
Q. Tell me, you worked as a trainer/selector of drivers, is that correct?
A. Trainer/assessor, yes.
Q. If you were assessing somebody and you saw them driving a front end loader up a wall, a bank, a 1:4 angle?
A. Batter.
Q. Yes. And doing it at a 45 degree angle and under a load, about 2 tonne, would you assess them as being a competent driver doing that?
A. I would have to see how it happened, seeing where the load was sitting in consideration of the ground. A number of different aspects you could look at there.
...
Q. The load is raised because it has to be to get up the angle, it is a one in four slope?
A. How high--
Q. Almost the full extension?
A. Full extension, four in one batter, 45 degree, not that bad. I've done it, seen it done a lot.
Q. With a two tonne load?
A. With a two tonne load. I pick up 60 tonne a bucket in the loader I drove in a two in one batter, 45 degrees.
Q. If the load is extended some distance either side of the body of the loader, that is not in a bucket but extended along a lateral load and the driver was taking the slope at a 45 degree angle does that assist you to offer a view as to whether that is a wise or an unwise thing to do or whether it reveals anything about the driver's or the operator's level of competence?
A. No, it doesn't say anything about the operator's level of competence.
Q. Would you say it would be wise or--
A. I'd say it wouldn't be wise as an operator.
Q. Why is that?
A. There is always a chance of roll over. You can be going straight up a batter and something happened, with a load shift.
Q. But going straight up--
A. There is always chance of load shift, your Honour, like different ground levels.
Q. Yes. But assume the load is reasonably balanced and confined within the mass of the equipment and the operator is taking the slope on the vertical?
A. Yep.
Q. That is the optimum approach, isn't it?
A. Yes, exactly.
116Whatever else this evidence might go to it does nothing to advance counsel's contention that there was an obvious risk in traversing the batter such as to relieve Curtis Barrier of liability under s 5F.
117I am satisfied that in applying ss 5B(1) and (2) of the Civil Liability Act the risk of the front end loader tipping over and causing injury was foreseeable and productive of a risk that was not insignificant. I am also satisfied that a reasonable person in Curtis Barrier's position would have warned against that risk given the probability that serious harm would occur if the operator were not alerted to the risk. I am satisfied that, viewed objectively, a contractor in Curtis Barrier's position could have provided for the risk in an entirely cost neutral form by preparing and supplying a detailed risk analysis which included the risk of the vehicle tipping under load and an induction session for the operator by an experienced site supervisor prior to commencing the deployment of the plastic.
118Curtis Barrier also submitted that it was not the modifications to the front end loader or the failure to warn of the risk of traversing the batter which caused the accident but the unilateral and erroneous decision of the plaintiff to approach the corner of the pond at an angle - in effect, an error of an incompetent and untrained operator for which Aggcon was primarily responsible as employer. Despite Aggcon's failure to satisfy itself that the plaintiff was certified or licensed to operate the front end loader before assigning him to the task, I am not satisfied that his lack of formal qualifications was causative of the harm the plaintiff suffered such as to relieve Curtis Barrier of liability. Irrespective of whether an operator had previous training and/or certification, Curtis Barrier's own case dictates that any operator engaged in the installation process required instruction and a safety induction in order to apply himself safely to the particular task involved in lining the pond. I am satisfied the front end loader rolled over and injured the plaintiff because of the intersection of Curtis Barrier's inappropriate choice of vehicle and its failure to provide any instruction in its use on the batter or any supervision in that task. I am satisfied in accordance with s 5D(1)(a) of the Civil Liability Act that factual causation has been established by the plaintiff in that Curtis Barrier's negligence was a necessary condition of the occurrence of the harm and that it is appropriate for its liability to extend to its proportion of the harm the plaintiff suffered within the terms of s 5D(1)(b) (see also Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; 239 CLR 420 at [44]-[45]). I am satisfied, however, that it is proper to regard the plaintiff's lack of certification as contributing to the accident (in the sense that a certified operator may not have taken what Mr McClymont regarded as an "unwise" approach to the batter) which will be factored into Aggcon's apportioned liability in damages. While the plaintiff's status as an unlicensed operator is not irrelevant to the issue of contributory negligence, to which I will turn presently, it is not determinative of it.
119In addition, and to the extent that it is material (see Lym International Pty Ltd v Marcolongo [2011] NSWCA 303), I have no doubt that were the plaintiff warned against the risk of traversing the batter he would not have attempted that ascent. Ironically, it was because the plaintiff was concerned about the vehicle's instability that he sought to address that very risk. Unfortunately, he was not sufficiently alert to the fact that his decision to approach the corner at an angle actually increased the risk of the front end loader tipping over.