Coregas Pty Limited v Penford Australia Pty Limited

JUDGMENT 1MEAGHER JA: I agree for the reasons given by Hoeben JA that the orders his Honour proposes should be made. 2HOEBEN JA: Nature of appeal During 2005, the appellant (Coregas Pty Ltd) supplied hydrogen chloride gas in cylinders to the respondent (Penford Australia Pty Ltd). The cylinders were delivered in a cage, one side of which operated as a ramp. On 25 October 2005 Anthony Spence, an employee of the respondent, was injured while using such a ramp to unload a gas cylinder. The employee brought proceedings against the respondent in negligence. Those proceedings were settled as between the respondent and the employee for $435,000, inclusive of costs, but clear of workers compensation payments. $469,641.27 was paid to the employee on 5 June 2008. 3The respondent brought proceedings against the appellant for contribution and/or indemnity in respect of the $469,641.27, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The respondent was successful in those proceedings. Lakatos DCJ apportioned liability equally between the respondent and the appellant and entered judgment in favour of the respondent for 50 percent of the amount paid to the employee. 4The appellant has appealed from that judgment. 5The respondent also brought proceedings pursuant to s 19 of the Sale of Goods Act 1923 (NSW) and for an indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act, 1987 (NSW). His Honour dismissed the claim under the Sale of Goods Act 1923. He suggested that the claim to an indemnity under s 151Z(1)(d) of the Workers Compensation Act 1987 be dealt with consistently with his conclusion as to contribution. That claim was not addressed in the short minutes of order agreed by the parties and is not the subject of any relief sought by the notice of appeal. Factual background 6With the exception of two matters, the parties were in agreement as to his Honour's findings of fact. 7The respondent's premises where the accident occurred operated as a dextrin plant. The process involved taking starch and by a chemical reaction, converting it into dextrin. Dextrin is a dry product which is used as an ingredient in the confectionary industry and as a flocculant in the mining industry to separate ore. The hydrochloric gas/liquid supplied by the appellant was injected into a dextrin reactor and blended with the product. 8The reactors in the plant were supplied by a German company and the gas installation was set up by a predecessor to the appellant. The gas installation comprised a mechanical connection through the building involving pipe work from gas cylinders to the dextrin reactors. 9The gas cylinders were stored in the cage in which they were delivered in an area outside the factory in the open air. This was done for safety reasons because they contained a dangerous toxin that needed ventilation. In due course, the cylinders were transferred from that location to another open area which had a roof over it on the outside of the building. It was there that the cylinders were connected to the pipe work. 10The agreement for the supply of gas by the appellant to the respondent was in evidence (Blue 2). In that agreement, the appellant undertook to: "Supply materials and services to specification subject to agreed lead times." 11The appellant called no oral evidence. Mr Segerius, the Operations Manager of the respondent in 2005, gave this evidence. "Q. Does that help you to recall that when you inspected the area shortly after the accident, you observed that the cages were marked with the brand name "BASF"? A. Yes. Q. And the gas bottles were similarly marked? A. Yes. Q. May I have that document back please. And to your knowledge BASF was the manufacturer of the gas that you used, is that so? A. I don't know. Q. Do the cages as they now present themselves --- ... Q. Do they have a BASF marking on them or not? A. I don't know." (Blue 39D-N) 12On the basis of that evidence, the trial judge was asked to infer that the appellant did not manufacture the gas and did not manufacture the cages, but that both these items were manufactured and provided to the appellant by another entity, BASF. There was no evidence as to the relationship between the appellant and BASF. While he was not prepared to draw that inference, his Honour approached the claim on the assumption that this proposition was correct. 13As indicated, the cylinders were delivered by the appellant to the respondent already loaded in a cage. There were usually two cages on a truck. The cages were taken from the truck by forklift to a designated area in the respondent's premises. Such designated areas were located in the open 10 to 15 metres from the plant on a concrete slab. There were 12 cylinders to a cage in three rows of four cylinders. Each cylinder was approximately 1.6 metres in height and weighed 125 kgs when full. 14Other than the Incident Report (Blue 21) which contained some black and white photocopies, there were no photographs of the cage from which Mr Spence (the worker) was removing a cylinder when he was injured. The parties implicitly accepted that photographs taken in 2009 by Dr Cooke, an expert retained on behalf of the respondent, depicted a cage similar to that involved in the accident. 15Dr Cooke measured the floor of the cage at 140mm above ground. The front of the cage had a hinged flap made of steel chequerplate. That flap or ramp came in two lengths - 500mm and 695mm. The slope of the 500mm ramp was 28.6 percent (16 degrees) and that of the 695mm ramp 18.4 percent (11.7 degrees). 16At the time of the accident, the worker had been doing the job of unloading cylinders from such a cage for approximately four years. When he commenced that work, he had been given instruction by a supervisor as to the method to be used for removing cylinders from the cage. This method was: The front of the cage was opened and the ramp was lowered. The safety bar and the harness around the gas bottles were undone. The cylinders were then manoeuvred by hand down the ramp to a trolley, which was specifically designed for the movement of cylinders. The trolley base onto which the cylinder was placed had a wind-up mechanism so that it could be raised above ground level. Both the worker and Mr Segerius said that the wind-up mechanism was working in 2005 when the accident occurred. 17The worker described the circumstances of the accident as follows: "Q. ... So the trolley is off to the side I think you said, you lower the ramp, and what happens next? A. Undo the safety bar that goes across the front of the gas bottles and undo the harness that goes around the gas bottles, and then it is a matter of getting them down the ramp onto the ground so you can use the trolley. Q. Well before I describe or ask you to describe how that occurs, can I ask you this, when a cage is full, do the cylinders come right up to the edge of the ramp? A. Yes. Q. Can you get your feet in there at all? A. No. Q. If you are removing the very first cylinder or the second one? A. No it is too awkward. Q. Why? A. Because there's not enough room because you have to wriggle the bottle until you get it out from the others so then you can tilt it to roll it down the ramp. Q. And this was the method taught to you by a Penford person? A. Yes. Q. Why wouldn't you just take the trolley up the ramp, Mr Spence? A. It won't go up the ramp. Q. Why? A. Because you've got two straight bars, once it goes up then you're on a - because its got a back wheel and it will rock like that on the back. Q. And there is a risk the thing will fall off? A. Yes. Q. All right, I got you to the point Mr Spence where you - I think you said shimmying, what happens next? A. Shimmying, then you've got to slowly roll it down the platform onto the level ground. ... Q. Are they heavy to manhandle? A. Yes. Q. Does it take all your strength? A. It does take a bit of work to get them out. Q. Can we presume from your answers that the first row are harder than the latter rows? A. Yes." (Black 16S - 17R) "Q. It was a poor question Mr Spence I will ask it another way, was it a full cage that you were approaching? A. Yes. ... Q. You put how many - were both feet on the ramp? A. Yes. Q. You were fairly close to the cylinder? A. Yes. Q. Indeed because of its weight and how it is - how they come stacked, do you keep your body weight close to a cylinder to try and shimmy it? A. Yes. Q. What happened next? A. I was shimmying the gas bottle out and then I had to take a step back so that once I got it out far enough, so I could tilt it to get it onto its edge to roll down the ramp, my back foot slipped which was my left foot, slipped and as I slipped the bottle come towards me, I got down on a knee and pushed the bottle to one side and that's when the accident happened." (Black 19E - P) 18It was common ground that the ramp was wet at the time, either from dew or light rain. 19The worker said that although the respondent provided ongoing safety training, he had missed it because such training occurred on his rostered days off. He said that he had reported problems concerning the use of the trolley to the respondent on one or two occasions, about two years after he started doing that work. This report of problems had been made at safety meetings, but the problem was not remedied. Neither the worker nor Mr Segerius were aware of any other accidents where someone had slipped on a ramp while unloading cylinders in the five years before the accident. 20Mr Segerius gave evidence that in recent times a change had occurred in cage construction. He said: "Q. What is that change? A. There is no longer a ramp on the cage. Q. Did Penford remove the ramps? A. No. Q. Who did? A. Coregas. Q. Did you see men or women working on these cages to remove the ramps yourself? A. No. Q. Did any of your employees remove the ramps? A. No. Q. The cages are the property of Coregas are they not? A. Correct. HIS HONOUR: Q. Just so it is clear Mr Segerius, the position is that in recent times, whenever that was, when the cages were delivered, you observed that they had no ramps? A. Yes they no longer have ramps now." (Black 36T - 37H) 21There was an issue between the parties as to the extent to which the appellant had power to direct or specify where cylinders were to be positioned at the respondent's premises. The appellant submitted that while it had a power of approval, that power did not amount to a power to direct any specific location for the storage of the cylinders. Put another way, the appellant could veto a particular location but could not tell the respondent where or how to store the cylinders, other than to ensure that they were stored in circumstances where if any gas vented, it would vent into the atmosphere and not into an enclosed space. 22The relevant evidence was that of Mr Segerius: "Q. Why were the cylinders kept outside and not indoors? A. For safety reasons. Q. Under whose recommendation was it that they be kept outside? A. It would be the supplier. Q. Who is that? A. Coregas." (Black 36A - D) "Q. The location where the cages were to be delivered with the full gas bottles, that was a point selected by Penford within the yard? A. It would have been selected by Penford in conjunction with Coregas. Q. Were you party to any discussions in which that occurred? A. No. Q. So you're speculating in that respect? A. We have a number of gas installations on site and they all have to be approved by the supplier before you can be supplied by gas. HIS HONOUR Q. Just so I'm clear on that answer, Mr Segerius when you talk about installations in this context what is it? A. Installation where there is a gas bottle been installed and supplied by the supplier to meet the safety regulations that has to be installed in a certain way and has to have a certain clearance around it so a supplier won't supply gas unless it is correctly installed and we have other gasses on site and other positions on site for other things. Q. When you refer to correctly installed, are we talking about the cages in this particular context, these facts both the location of the cages and where the bottles are taken to be hooked up to the pipes, both of those or? A. Yes. Q. Both of them? A. Yes. ... COUNSEL: Q. And where they were stored on your site was outside? A. Correct." (Black 42L - 43G) 23I am satisfied on the basis of that evidence that the appellant played an active role in the positioning of the cages containing gas bottles on the respondent's premises. I agree, however, that what was exercised was a power of approval and/or veto, rather than a power to direct of its own motion, where gas bottles should be located. The impression I gained from that evidence is that such a decision was jointly made by the appellant and the respondent. What is clear from that evidence, however, is that the appellant would have known that gas cylinders were being stored at the respondent's premises in the open air and as such, were exposed to the elements. 24The second factual issue which was not agreed between the parties was whether the ramp on which the worker slipped was of the longer or shorter kind. Although the evidence is not clear on this issue, what is clear from an exchange between counsel for the parties and his Honour at Black 80F - N, is that at the trial both parties proceeded on the basis that the worker had slipped on the longer ramp. In the absence of clear evidence to the contrary, the appeal should proceed on that basis. The expert evidence 25There was evidence from three experts - Mr Dohrmann and Dr Cooke (for the respondent) and Mr Horrigan (for the appellant). Only Dr Cooke was required for cross-examination. There was little, if any, disagreement between those experts. 26Mr Dohrmann was a professional consulting engineer, with expertise in slips and falls, who was commissioned by the worker to provide expert evidence in his claim against the respondent. The focus of his report of September 2007 was on the liability of the respondent. Mr Dohrmann did not inspect the respondent's premises nor a similar cage and ramp. 27Mr Dohrmann found that there was insufficient room on the ramp to use the supplied trolley and as a result, there was no option but that the worker manhandle the unstable, heavy metal cylinder down a slope. He considered that this task was made more difficult because the sloping metal surface was wet. He concluded that the worker slipped partly due to the lack of traction underfoot and partly due to the posture which he adopted while manhandling the cylinder. Mr Dohrmann characterised the system of work as "a recipe for an accident". (Blue 32W) 28Mr Dohrmann concluded that the respondent could have taken the following measures to prevent exposing the worker to such a risk of injury: Carrying out a safety audit. Providing effective training in safe lifting techniques. Providing a wider platform at the front of the cage to enable a trolley to be used on the horizontal surface. Providing a slip-resistant surface on the ramp. Providing a roof over the cage and storing the bottles level with the ground on a concrete pad. 29In relation to the respondent's "Incident Report" (Blue 21) which asserted that "it is standard practice around Australia to manhandle cylinders in this way", Mr Dohrmann said: "I would agree that the practice of rolling and manoeuvring gas cylinders onto flat platforms on trolleys (at ground level) is common; however, the practice of requiring people to manoeuvre a heavy cylinder down a wet (and assumed slippery) surface certainly is not, and ought not be regarded as "standard practice"." (Blue 39L - M) 30Dr Cooke was a consulting architect and a member of the Standards of Australia Sub-committee of the Royal Australian Institute of Architects. He also was an expert on slips and falls. As indicated, he inspected cylinder cages at the respondent's site in June 2009 and conducted co-efficient of friction tests on a similar kind of ramp. His Honour was satisfied that the cage and ramp tested in 2009 by Dr Cooke were sufficiently similar to yield results which were indicative of slip resistance of the ramp involved in the accident in 2005 (Red 27G). 31Dr Cooke considered that Australian Standard AS1657-1992 was relevant in that it applied to ramps used in industrial situations. By reference to that standard, Dr Cooke tested the slip resistance of the chequerplate surface of a ramp by employing the test devices referred to in the standard. Although the standard indicated that highly profiled surfaces (such as steel chequerplate) might not be suitable for testing, Dr Cooke was of the opinion that it was possible to obtain a reliable reading on steel chequerplate under wet conditions provided care was taken to set up the slider so that it had a smooth passage across the surface of the raised profile. 32Under the Australian Standard, a minimum dynamic co-efficient of friction of .63 was required for ordinary pedestrian use of the longer ramp. The worst result obtained by Dr Cooke when measuring the co-efficient of friction of the longer ramp was 0.65. By reference to that test result, Dr Cooke concluded that "the cages have not been designed to provide a safe ramp surface for unloading full cylinders. The chequerplate surface is not adequately slip resistant under wet conditions for the task of manoeuvring a full cylinder down the ramp". (Blue 44F - G) 33The reasoning for Dr Cooke's opinion was that although the Australian Standard did not specifically apply, it provided a guide against which the slip resistance of the ramp could be assessed. This was because the specific use of the ramp in the present case was not an ordinary pedestrian use. It followed that although the tests produced an objective reading, the level of risk needed to be assessed by reference to the actual task. In this case that task involved the manual handling of a very heavy object by an employee, walking backwards down a ramp. Under wet conditions, there was a greater risk that an accident of this kind would occur. 34Dr Cooke was not cross-examined specifically as to this conclusion but on the basis that he could not accurately carry out a test for slip resistance on a heavily profiled surface such as the ramp. He was also cross-examined on the basis that his conclusion did not have adequate regard to the fact that there had been no accidents of this kind during the preceding five years. Dr Cooke did not accept those propositions. 35In relation to alternative systems, Dr Cooke said: "I have found that, with the ramp propped up on blocks of wood to provide an approximately level surface it would have been possible to bring the base of the trolley into a position where it was underneath the outer edge of the raised flap ... with the trolley in that position it would have been possible to roll a cylinder to the edge of the horizontal flap and work it onto the trolley base. The task would have been less hazardous than the task being performed by Mr Spence at the time of the accident because the flap would not have been steeply sloping. If appropriate fold out legs were fitted to the flap, it could be dropped down to provide a horizontal surface. Alternatively, blocks of wood or other supports of the correct height could have been used to make the flap into a horizontal surface. However, the ramp in that position (propped up to make a horizontal platform) would not have provided a completely safe working platform because of the need to manhandle the cylinders onto the trolley." (Blue 51W - 52K) 36Mr Horrigan was an expert in engineering and ergonomics. When preparing his report, he had available the reports of the other two experts. The only difference between his opinion and that of Dr Cooke was that he had some reservations about the accuracy of using a pendulum tester to measure the co-efficient of friction of a profiled surface. Mr Horrigan said: "Dr Cooke was able to inspect the ramp and conduct measurements. He also concludes that Mr Spence could have slipped on the ramp because his measurement of co-efficient of friction indicates that the shallow ramp is on the limit for possible slipping and the steep ramp requires a higher co-efficient of friction from that provided by the chequerplate surface. I also note that he has used a pendulum tester to obtain these values of co-efficient of friction even though it is unsuitable for profiled surfaces. Irrespective of the validity of these readings, it is probable that Mr Spence did indeed experience a slip leading to a loss of control of the cylinder rather than simply losing control of the cylinder." (Blue 156N - Q) 37Otherwise the opinion of Mr Horrigan is in accord with that of Mr Dohrmann and Dr Cooke. 38Mr Horrigan set out the actions required to be performed by Mr Spence when removing a cylinder from the cage as follows: "1. Lower the cage door. 2. Move up the ramp and place his right foot on the floor of the cage (this would only be easily achieved after at least one cylinder had been removed) retaining his left foot somewhere on the ramp. 3. Grasp the cylinder to be removed and tilt it toward him. 4. Roll the cylinder on its edge across the floor of the cage and down the ramp until it was on the concrete floor, making continual adjustments to grip on the cylinder, body posture and his foot position. 5. Continue to roll the cylinder across the concrete floor until it reached the lifter trolley." (Blue 154H - L) 39Mr Horrigan commented on that system of work as follows: "This method of rolling cylinders is an old method of moving gas cylinders. It was adopted as a method of moving gas cylinders which were traditionally supplied individually. The weight of the gas cylinders and the dearth of readily available commercial manual handling equipment encouraged this rolling method. The use of caged pallets for gas cylinders began in the late 1960's. The pallet cages usually have incorporated ramps and/or platforms to allow the removal of cylinders using the "rolling" method. The floor of the cage is normally above the level of the factory floor due to the requirement for space underneath to accommodate forklift tines. ... The "rolling" method does involve a specific skill which has to be learned and practised. ... When a person is skilled in using this "rolling" method they can usually control the movement of the cylinder on a hard level surface because their posture is reasonably stable. However, there still remains a risk of a loss of control and therefore a risk of injury and damage. When the employee tries to use this method on a slippery ramp, there is an increased risk of loss of control. This relates to the principal of three points of contact onto rigid supports. ... In the situation of accessing the cylinder up the ramp, to have three points of support it is necessary to hold onto the cage with two hands, while placing one foot on the ramp when moving the second foot onto the cage floor. However, even with two feet in a stable position, it is impossible to maintain three points of contact because two hands are required to "roll" the cylinder down the ramp. If a foot slips there is less chance of recovery. This is why this method of moving the cylinder from the cage down a wet ramp is inherently unstable and undesirable. This Incident Report by Mr Bailey indicates that there had been no incidents of that nature in the last five years. This implies that the workers had been able to use the method for five years without losing control, or had lost control but had not been able to regain control without causing damage or loss, or had lost control but had not reported the incident. They had at least been able to use the method for five years without causing a serious injury. ... The nature of hazards and risk is such that an inherently risky activity such as the work method used by Mr Spence can be undertaken for an extended period without the injury scenario occurring. ... Moving a 125 kg object using an inherently unstable method should have triggered a review and risk assessment of that method. ... The obvious factor raised in all reports was the ramp was wet and therefore more slippery." (Blue 154 - 155) 40In relation to the alternative suggested by Dr Cooke, Mr Horrigan said: "A level surface is always more preferable than a ramp. I note Dr Cooke suggested using drop down feet to "automatically" ensure the ramp became a level surface. Properly designed, maintained and used, this would provide a stable and more level surface. The lifter trolley would be able to be slipped under the level surface and the cylinder rolled to the lifter trolley. There is still a need to ensure the cylinder was upright and stable before the worker stepped off the edge of the level surface (if necessary, if they became cramped for space) but the chance of maintaining control would be better. It would of course be necessary for the worker to ensure the drop down feet/legs had deployed correctly because a collapse of one leg could also create instability. Dr Cooke also suggested chocks under the ramp could be used to bring it up to a more level surface. This too will work. It does rely on the worker actually using the chocks and positioning them correctly to ensure the legs of the lifter trolley would slide under the level surface. It would require the chocks to be stored nearby and off the floor to avoid a tripping hazard." (Blue 158S - 159E) 41Mr Horrigan concluded with the observation that by continuing with the work method which involved rolling the cylinder down a ramp, the respondent allowed an inherently unstable activity to continue. He thought that the wet surface contributed to the occurrence of the accident and suggested that the area could have been roofed. 42Reference has already been made to the Incident Report by the respondent, dated 31 October 2005. This report was compiled by a Mr Stuart Bailey. There was no evidence of Mr Bailey's qualifications which enabled him to complete this report. It can, however, be inferred that he must have had some qualifications and/or experience, otherwise there would have been little point in the respondent having him compile such a report. 43Under the heading "Risk Rating" the risk was rated "3 out of 5 - Substantial risk". Relevant "factors" were recorded as follows: "1. This is the only incident of this nature to have occurred in the last five years. 2. The design of the pallet and ramp do not allow the lifter to access the cylinders on the pallet. 3. It is standard practice throughout Australia to manhandle cylinders in this way. 4. The chequerplate ramp was damp with dew. 5. [The worker's] stance was too wide with his left foot at an angle on the ramp. 6. Bottle weight of approximately 125 kg when full." In relation to "Actions", the following was set out: "Short term:

1. Trial the use of anti-slip matting on the pallet ramps.
2. Assess and train operators in gas cylinder handling. Medium term:
3. The company supplying the cylinders has been contacted on alternative handling methods - awaiting reply.
4. Materials Handling Equipment Company is designing a machine to lift the cylinders off the pallet - awaiting pricing. Note: A number of designs have been trialled over the years with none proving successful." 44The tender of Dr Cooke's report was objected to at trial. The appellant submitted that its tender should be rejected, or it should be given little weight, because it involved theoretical testing conducted four years after the accident on a ramp not established to be the one on which the accident occurred. 45The appellant submitted that the variety of results indicated that the testing was not precise and that there was no evidence that Dr Cooke tested the exact spot where the worker placed his foot immediately before the accident. 46His Honour allowed the tender of the report because it was relied upon to show that a substantially similar ramp (such as confronted the worker in 2005) was unsafe for the task of manhandling a 125 kg cylinder to ground level. His Honour noted that apart from commenting upon the potential invalidity of the testing by Dr Cooke, Mr Horrigan substantially agreed with his approach and conclusion. Liability findings at trial Duty of care 47Although the contest was between the respondent and the appellant, the parties appreciated that for the respondent to succeed it had to establish that the appellant was a party who, if sued by the worker, would have been found liable to the worker as a "tortfeasor liable in respect of" his injury (Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c). In other words, for the respondent to succeed it had to establish that the appellant owed a duty of care to the worker, that the duty had been breached and that the breach of duty caused the worker's injury. 48At trial, and on appeal, the appellant denied that it owed any duty of care to the worker. It submitted that it merely supplied gas cylinders to the respondent under a contract and provided a receptacle in which those cylinders could be stored. It submitted that this occurred in a work environment where the respondent had a non-delegable obligation to exercise reasonable care for the safety of the worker. It was no responsibility of the appellant to design a safe system of work for employees of the respondent. Because the cylinders and cages were branded "BASF", the appellant submitted that it was to be treated as a non-manufacturing distributor of goods and, in that regard, the principles set out in McPherson's Limited v Eaton and Ors [2005] NSWCA 435; 65 NSWLR 187 had application. 49In reaching his decision, his Honour relied upon Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361. In particular, his Honour rejected the implicit submission that just because the respondent, as the worker's employer, had a non-delegable duty to exercise reasonable care for the safety of the worker, this excluded a duty of care being owed by another party. 50His Honour's findings as to the existence of a duty of care, owed by the appellant to the worker, are at Red 39C - S as follows: "85 An examination of the salient features of the relationship between the plaintiff and the defendant discloses that the defendant by contract, was responsible for "the provision of compressed gases for the Dextrin plant ... and industrial maintenance gases ... including ... HCL" to the plaintiff in the form of heavy gas bottles in a cage with an attached ramp. I am prepared to assume that the defendant did not itself construct the cage and the ramp. It nevertheless agreed to "supply materials and services to specification" and was responsible for approving the location of the cage outside - hence it knew or ought to have known that the cage and ramp would be subject to the weather conditions. 86 The defendant would be taken to be aware of the dimensions of the cage and ramp and the gas cylinders including that the bottles weighed approximately 125 kg when full, the limited horizontal area for a worker to stand when attempting to remove cylinders in the first row, and that individual workers working alone, would be required to move full cylinders by negotiating the chequerplate metal ramp. The defendant would also be taken to know that the task was likely to be a repetitive task, performed in a diminishing space (as to which there is evidence) and to have been attended by inadvertence (as to which there is a reasonable inference given the worker had undertaken the task on a regular basis over some years) cf Czatyrko v Edith Cowan University. 87 I conclude that the defendant did owe [the worker] a duty of care to take reasonable steps to supply a cage and ramp for its gas cylinders, which would not subject foreseeable users to the unreasonable risk of injury whilst moving the gas cylinders cf Kuhl at [27]." Breach of duty and causation 51His Honour appreciated that a finding of breach of duty required more than proof that a particular preventative measure was reasonably practicable. His Honour said: "It must be shown that a reasonable person in the defendant's position would have foreseen that his or her conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff before determining what a reasonable person would have done in response to the risk." (Red 40L - O) 52In relation to breach, his Honour said: "94 In my view, a reasonable person in the defendant's position would have realised that moisture in combination with the slope of the ramp and the need for a worker to physically manoeuvre the heavy cylinder down the ramp, would have made the worker susceptible to slipping and consequently to be injured. Such a person would also have realised that should a worker slip and fall, the risk of injury resulting from the impact of a heavy gas cylinder would be high and any injury, potentially serious. 95 The experts variously stated that the situation was a recipe for an accident; the ramp was inadequately slip-resistant and that there were increased chances of slipping on a wet surface when combined with an inherently unstable method of moving the cylinders. Neither Dr Cooke nor Mr Horrigan was persuaded that the absence of reported accidents in the previous years invalidated that opinion. Mr Horrigan offered a number of explanations which might account for the absence of complaint, which in my view, accord with common sense. In my opinion, the risk of injury was not insignificant cf s 5B(1) of Civil Liability Act 2002. 96 A reasonable person in the defendant's position would have recognised that serious injuries might occur to a worker if he slipped and fell whilst handling a heavy cylinder. Because the defendant distributed the cylinders in the cage and required that the cage be kept outside, the burden of taking precautions fell partly on it (and on the plaintiff) cf s 5B(2) of Civil Liability Act. A reasonable person in the defendant's position would have advised the employer to have taken steps to make the ramp horizontal by way of advising that chocks be used, or by itself inserting fold out legs in response to the risk." (Red 41Q - 42L) 53In relation to whether these responses were reasonable and as to causation, his Honour said: "101 The alternatives suggested by Dr Cooke were the use of chocks or the use of fold out legs to reduce or eliminate the slope of the ramp. There was a measure of agreement between experts. The suggestions involved no apparent complexity or sophistication; where the opinions do not offend commonsense and appear feasible that in my view, is a sufficient basis to conclude that the measures are reasonably practicable, especially in the context where no evidence pointing to lack of practicability, has been adduced by the defendant. 102 The defendant argued that the measures suggested by Dr Cooke were not demonstrated by him, to be feasible or cost-effective. It argued that, unless there was proper testing and costing, those opinions lacked sufficient validity to be persuasive. The defendant did not adduce evidence on this issue, although it had or had access to "knowledge of the nature, cost and practical consequences" of the suggested alternatives cf Nelson v John Lysaght (Australia) Ltd. 103 I remain unconvinced that in this context a lack of costing is significant; the efficacy is adverted to by experts. The argument relating to lack of testing, may have force, if the measures recommended, were sophisticated and involved significant research and development. On their face, the suggestions of Dr Cooke do not fit that description. The use of chocks and/or legs on the ramp, to enable the ramp to be level, do not appear to be highly sophisticated or difficult matters to achieve. I am fortified in that view by the agreement of the defence expert, Mr Horrigan, to the efficacy of the measures. I would have expected that if there were significant cost and/or difficulties in implementing these measures, Mr Horrigan would have pointed those out. This is especially so given Mr Horrigan was alive to the need to consider any measures in the light of any consequential changes to the system of storing, transporting and moving the gas cylinders in cages and ramps. 104 In the circumstances, I consider that it was reasonably open to the defendant to cause these measures to be implemented. In my view, if it had done so, the risk of injury to any worker, moving gas cylinders would have been reduced. This would have been achieved by the reduction of any slope on the ramp and by permitting easier access of a trolley to the lip of the ramp. These measures, of course, would not eliminate all risks, because a worker would still be required to manhandle the gas cylinder from the cage, across a level chequerplate ramp and lower it into a trolley some 15 cm below the level of the ramp." (Red 43L - 44P) 54Having found liability established in favour of the respondent, his Honour then dealt with the question of apportionment. In approaching that question, his Honour set out the relevant principles and then proceeded to apply them to the facts of the matter before him. "109 The question of apportionment of responsibility between joint tortfeasors involves a finding upon a question of proportion, of balance and relative emphasis, and of weighing different considerations. It involves a choice or discretion as to which there may be differences of opinion by different minds. Apportioning liability as between a plaintiff and a defendant with respect to their respective shares in the responsibility for the damage involves a comparison of culpability, i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case - Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; 59 ALJR 492 at 493-4; Oxley County Council v MacDonald & Ors; Brambles Holdings Limited v MacDonald & Ors [1999] NSWCA 126 per Sheller JA at [57]. 110 The evidence establishes that the defendant supplied the cylinders in a cage and attached ramp. The ramp was made of chequerplate steel. The floor of the cage was raised from the level of the ground and accordingly the ramp was sloped to ground level - the degree of slope varying between the shorter and longer length of the ramp. The defendant stipulated that the cage be stored outside and therefore exposed to the elements. When the cage was fully loaded with cylinders, there was limited or no access to the front row of cylinders by trolleys used to convey the cylinders to the installation. The design of the cage and ramp was outside the plaintiff's control and within the control of the defendant (accepting that the defendant did not produce the gas or construct the cage and ramp). 111 The plaintiff had been supplied with gas bottles in the same form over a considerable period of time. It was the plaintiff's responsibility as an employer to conduct a proper risk assessment and to ensure a safe system of work. Similarly to the defendant's position, the plaintiff was aware of the location of the cage and ramp, the fact that it was accessible to weather, the slope and potential slipperiness of the ramp when wet, and the fact that workers were required to manhandle 125 kg gas cylinders. 112 Based on these factors, I conclude that the plaintiff and the defendant were equally responsible for the risk to the worker and for the injuries he received. In my opinion the proper apportionment therefore is 50-50." (Red 45Q - 46U) The appeal Ground 1: The learned trial judge erred in finding that there was a duty of care owed by the appellant to Mr Anthony Spence. 55The appellant submitted that the finding that it owed a duty of care to the worker in the circumstances of this case extended the legal responsibility of a distributor to the employees of a customer further than had hitherto been recognised. It submitted that this unauthorised extension of the law was based on an erroneous understanding of the basis of the decision in Kuhl. The appellant submitted that this case fell outside a recognised relationship giving rise to a duty of care so that the "salient features" identified by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [103] should be taken into account. The appellant submitted that when regard was had to those salient features, it was obvious that they did not apply in this case. 56The appellant submitted that the determinative feature in Kuhl, which led to the plurality finding that a duty of care existed, was that it had done "something more" than simply supply plant or equipment. The "something more" comprised setting up the hose, clearing the blockages and directing and supervising the two operators. The appellant submitted that such features of active participation in the unloading of the cylinders by the appellant were absent in this case. 57The appellant submitted that the respondent received no assistance from Oxley County Council v MacDonald [1999] NSWCA 126. In that case Brambles was held liable to the injured worker because it exercised control over the reloading of the truck which caused the load to become unstable so as to eventually cause injury to the worker when he attempted to unload the truck. There had been no similar action by the appellant in this case. 58The appellant submitted that for a non-manufacturing distributor of goods such as it to owe a duty of care, it must know or have reason to know that there was a circumstance which foreseeably could cause injury. Exercising control over the way in which goods are loaded on a truck was plainly sufficient. The appellant accepted that knowledge of an inherent defect was also sufficient. The appellant submitted that there was no such inherent defect in this case since, as his Honour found, the longer ramp was "just within the limits of slip resistance", i.e. there was nothing inherently defective about it. 59The appellant submitted that when determining whether or not a duty of care existed, control was always important. In this case the appellant had no control over the unloading of the cylinders. It submitted that in the absence of the element of control, or there being something defective about which the appellant knew or ought to have known in relation to the gas cylinders, the appellant's case lacked the "something more" required to establish a duty of care on its part. 60In that regard, the appellant relied upon the statement of Hodgson JA in McPherson's Limited v Eaton at [27] where his Honour said: "27 ... there is ... a world of difference between originating and putting into circulation something which otherwise would not exist, and merely being one of a number of persons involved in the distribution of something originated by someone else." 61I do not agree that his Honour misunderstood or misapplied the decision in Kuhl. That case involved Mr Kuhl, as an employee of Transfield, entering reactors used in the production of iron and using a powerful vacuum hose to remove waste material. The vacuum hose, and associated equipment, was supplied and set up by WOMA, which also supplied two operators. The power which created the vacuum came from a truck which was also supplied by WOMA. WOMA was responsible for directing and supervising the operators and for setting up the vacuum hose and clearing blockages in it. On the day of the accident, a blockage occurred. In the course of trying to clear the blockage, an employee of WOMA passed the hose to Mr Kuhl whose left arm was sucked into the hose causing him severe injury. It was not suggested that the employee of WOMA who passed the hose, did so negligently. 62Mr Kuhl's case was that WOMA had breached the duty of care which it owed to him by failing to issue instructions not to pass the hose while the power was on and by failing to install a break-box, 10 or 15 metres from the head of the hose which could be employed to break the vacuum pressure at the hose end by letting air in. 63Contrary to the submissions of the appellant, the decision in Kuhl is analogous to the facts of this case and the statements of principle by the plurality and the minority on this issue are helpful. In that respect, the facts of this case are not as novel as the appellant submitted. 64The plurality found that WOMA owed Mr Kuhl a duty of care. Their reasons were: "79 The nature of the duty. It was reasonably foreseeable to WOMA that the vacuum facility it provided to Transfield, and particularly the hose, would be used by Transfield employees to clean out the reactors. It was also reasonably foreseeable that from time to time the hose would get blocked and have to be unblocked. And it was reasonably foreseeable that different workers, whether employed by Transfield, WOMA or Hydrosweep, might work on the task of unblocking the hose, and hand it back and forth while the suction-creating power unit was in operation. Thus there was a duty on WOMA to provide a hose, truck and vacuuming facility that would not subject foreseeable users of the hose (including those who might be inadvertent at times) to an unreasonable risk of injury in relation to the uses to which it was reasonably foreseeable that it might be put. On that basis WOMA's duty of care extended to risks in relation to the passing of the hose, whether those risks arose from the way the hose was designed (for example, without a break box), or the way it was to be used (for example, without the protection of instruction to turn the power off while it was being handed back and forth between workers)." 65In Kuhl WOMA made a submission similar to that of the appellant in this case: "81 ... The co-existence of knowledge of a risk of harm and power to avert or to minimise that harm does not, without more, give rise to a duty of care at common law. ... The mere provision of plant and equipment to someone who intends to integrate it into their enterprise, and upon whom there is a common law duty to devise, institute and maintain a safe system of work, and to provide safe plant and equipment, cannot give rise to a common law duty of care to users of the equipment within the enterprise: something more must be needed. ... The supplier of plant and equipment may not know, and may have no means of knowing, the manner in which the plant and equipment will be integrated into its [customer's] enterprise; or how work systems might be adapted to deal with contingencies encountered; it would lead to indeterminate liability; it would make tortious that which was otherwise lawful; it would hinder the efficient operation of commerce." 66The plurality rejected that submission: "82 However sound these submissions may be when applied to other circumstances, they are not sound here. WOMA knew, and had the means of knowing, how the fruits of Transfield's work in integrating the equipment within its system of work had developed, for it supplied not only equipment but also workers. However relevant the contract between WOMA and Transfield was, the Court of Appeal majority said it was never clearly explained in the evidence. Hence it has not been established that it restricted WOMA's duty. The incident-free history of the equipment is not irrelevant, but it is not determinative. The submission amounts to the proposition that, if an employer like Transfield owes a duty to its workers to maintain a safe system of work, there can never be a possibility of others owing the workers duties of care. The existence of a duty of care depends on the circumstances of each case; in this case the circumstances were sufficient to create the duty in WOMA which was stated above, which includes the duty that was conceded in the Court of Appeal. That was because of WOMA's special role in supplying the equipment, setting up the hose, clearing blockages and directing and supervising the two operators." 67Those statements of principle, when applied to the facts of this case, favour the finding that a duty of care was owed by the appellant to the worker. The duty of care is that identified by his Honour at Red 39Q (see [50] hereof). 68It was reasonably foreseeable by the appellant that the gas cylinders would be unloaded as they were, i.e. by a single worker, using the ramp and doing his best to manoeuvre a heavy and awkward cylinder down the ramp in circumstances where he had to position his feet on the ramp, there being no room available on the surface of the cage on which the cylinders were positioned. It was also reasonably foreseeable that the ramp could become wet because it was known to the appellant that cages of cylinders were positioned in the open. For those reasons, it was also reasonably foreseeable that when attempting to perform such an activity, a worker could slip and be injured because of the weight and awkward shape of the cylinders and the slope and wetness of the ramp. 69In supplying the cage loaded with full cylinders to a customer such as the respondent, the appellant did not merely supply a product or plant and equipment. The cage was designed to enable the cylinders to be unloaded in the manner described above and that was the most likely method that the customers and their employees would use to unload cylinders from the cage. In accordance with the reasoning of the plurality in Kuhl, there was a duty on the appellant to provide a cage and ramp which did not, used in this way, subject those foreseeable users to an unreasonable risk of slipping on the ramp while doing so. 70It is not correct that there was no inherent defect with the cage because the ramp was "just within the limits of slip resistance". Such a submission misunderstands his Honour's finding and the evidence of the experts, in particular, that of Dr Cooke. The "limits of slip resistance" to which Dr Cooke and his Honour were referring related to the Australian Standard applicable to persons walking over surfaces in an industrial context. If the surface of the ramp was "just within the limits of slip resistance" in that context, it was well below such a limit when one took into account that the activity being performed was the movement of a heavy and awkward object down a wet slope. 71Even without the test results of Dr Cooke all the experts, particularly Mr Horrigan, agreed that the unloading procedure used by the worker was inherently unsafe. Such an assessment did not depend upon expert opinion as to the degree of slipperiness, but was obvious from the nature of the unloading activity itself. It was a situation like that referred to in Neill v NSW Fresh Food & Ice Pty Limited [1963] HCA 4; 108 CLR 362 where Taylor and Owen JJ said at 368: "In many cases no more than common knowledge or perhaps common sense, is necessary to enable one to perceive the existence of a real risk of injury and to permit one to say what reasonable and appropriate precautions might appropriately be taken to have avoid it." See also Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; 96 CLR 18 at 24. 72The dangers associated with unloading the cage as the worker did were real and evident. 73The appellant sought to distinguish the statements of principle in Kuhl from the facts of this case because WOMA not only supplied equipment, but also workers. That is to misunderstand the reasoning of the plurality at [82]. The significance of WOMA having some workers on the premises was that this gave it the means of knowing how Transfield had integrated the WOMA equipment within its system of work. That was not necessary in this case. The very construction of the cage invited the method of unloading which was used, i.e. the ramp was an integral part of the cage and was plainly intended for the manual unloading of cylinders and the loading of the cylinders to the very edge meant that the worker had to position himself on the ramp without three secure points of contact. 74Moreover, the Incident Report and the reports of Mr Dohrmann and Mr Horrigan made it clear that this method of unloading was "standard practice throughout Australia". Accordingly, it was not necessary for the appellant to have workers present on the respondent's site because it knew or had reason to know that the gas cylinders would be manhandled down the ramp, in the manner in which they were, in circumstances where the ramp could be wet. As Kuhl also made clear, the fact that the respondent might have owed a duty of care to the worker, did not necessarily exclude the appellant also owing such a duty. 75In line with the reasoning of the plurality in Kuhl, the question is did the appellant owe a duty of care to the worker to take reasonable care to supply a cage and ramp for its gas cylinders which would not subject him as a foreseeable user to an unreasonable risk of injury while moving the gas cylinders? The relevant relationship was not that between the worker and the respondent, but between the appellant on the one hand and the worker on the other. It was a relationship brought into existence by the distribution by the appellant of large cumbersome 125 kg gas cylinders in a cage with a purpose built integrated ramp, plainly intended to be used in unloading cylinders without the provision of a safe and stable place to stand when the first few cylinders were to be unloaded. 76As was said by Gummow J in Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 at [198]: "198 ... In determining whether the relationship is so close that the duty of care arises, attention is to be paid to the particular connections between the parties." The manner in which the appellant chose to present its goods created a direct relationship between the appellant and whomsoever might attempt to unload the cage by use of the integrated, purpose built ramp. The relationship was so close that a duty arose. It matters not whether the appellant owned the cages. That was the mechanism by which it chose to supply the gas. 77The special role of the appellant in this case was the supplying of cylinders and a cage which invited a particular method of unloading which was inherently dangerous in the knowledge that potentially the ramp could be wet. 78The facts of this case would also give rise to the existence of a duty of care owed by the appellant to the worker by reference to the reasoning of the minority in Kuhl. At [20] the minority said: "20 ... Such an approach runs the risk of predetermining the outcome before considering the first important step; whether WOMA owed Mr Kuhl a duty of care to begin with and, if so, what was the scope and content of that duty. Those questions are determined by considering reasonable foreseeability and the "salient features" of the relationship between the plaintiff and defendant." 79The minority went on to say: "26 ... WOMA was not responsible for the training of Mr Kuhl nor was Mr Kuhl subject to WOMA's control. However, the supervision of the vacuuming facility by WOMA's servants, and its obvious knowledge that persons like Mr Kuhl would be using the vacuuming hose for the purpose for which WOMA provided the hose, indicates that it was reasonable to require WOMA to have persons like Mr Kuhl in contemplation as people who might be put at risk by WOMA's negligence in providing and operating the vacuuming facility. There are also no considerations of indeterminacy or incoherence that tend against a finding of duty on the part of the WOMA. 27 The critical question in this case concerns the scope and content of the duty owed by WOMA. The evidence outlined above supports the finding of a duty to take reasonable care to provide a hose, truck and vacuuming facility that would not subject foreseeable users of the hose to an unreasonable risk of injury. This duty concerns the condition of the equipment ... Even a foreseeable user of the hose exercising proper care would necessarily include a worker who may, upon undertaking repetitive tasks, be inadvertent at times." 80The salient features in this case are: The appellant knew that the cage with its integrated ramp would be subject to weather conditions because it was positioned in the open. The appellant was aware of the dimensions of the cage, particularly when fully loaded. The appellant knew of the size and weight of the gas bottles. The appellant knew of the limited horizontal area available to the worker when attempting to remove cylinders from the first row. The appellant knew, or ought to have known, that a worker would remove the full cylinders by using the chequerplate metal ramp. The appellant ought to have known that a full cylinder would be removed in this way since according to the Incident Report and the reports of Messrs Dohrmann and Horrigan, this was the standard method used in Australia for such an activity. When contemplating the foreseeable risk of injury, the appellant knew that unloading the cylinders was a repetitive task where inadvertence may play a part because it was done on a regular basis over some years. 81Applying the reasoning of the minority to the facts of this case, the duty owed by the appellant to the respondent would be to take reasonable care to provide cylinders in a cage that would not subject foreseeable users to an unreasonable risk of injury. Accordingly, whichever approach is used, either that of the minority or plurality in Kuhl, the statements of principle when applied to the facts of this case, support the existence of a duty of care owed by the appellant to the worker. The duty was to provide cylinders in a cage that would not subject foreseeable users, including those who might be inadvertent at times, to an unreasonable risk of injury when attempting to manually unload them by using the integrated ramp on the cage. 82The facts of this case are to be distinguished from those in McPherson's Limited v Eaton in that the appellant knew or had reason to know that the cylinders and cage contained an inherent danger arising from the expected method by which they would be unloaded. The level of knowledge of the appellant in that regard was significantly greater than that of the supplier of asbestos products in Eaton where that supplier had no knowledge or reason to know that the asbestos in the products was dangerous. Ground 2: The learned trial judge erred in apportioning liability for the injury to Mr Spence on a 50/50 basis as between the appellant and the respondent. 83The appellant submitted that although his Honour had correctly stated the relevant principles, his exercise of discretion in apportioning liability had miscarried because his reasoning contained errors and omissions. It submitted that a proper apportionment would have been 90 percent against the respondent and 10 percent against the appellant. 84The errors relied upon by the appellant were: (a) That it was factually incorrect to say "the defendant stipulated that the cage be stored outside and therefore exposed to the elements" (Red 46J). (b) There was no evidence to support the finding that the design of the cage and ramp was "within the control of the defendant" (Red 46L). In relation to (b), the appellant submitted that there was no evidence that it had any influence, control or capacity to control the design of the cage and ramp. The appellant submitted that in the absence of any evidence to support that finding, his Honour should not have taken it into account. 85The appellant submitted that his Honour failed to take into account that the "duties imposed in law upon an employer in relation to the system of work required a much higher standard than is imposed upon a distributor of goods" which had no control over the occupation of the site, nor the manner in which the client to whom the goods were provided, carried out the unloading operation. 86The appellant submitted that although his Honour had correctly stated the relevant principles applicable to apportioning liability he had failed to apply them correctly because he had failed to take into account relevant factors which impacted upon the culpability of the respondent and the contribution which its conduct made to the occurrence of the accident. The appellant submitted that there were matters relevant to those questions to which his Honour had not referred when considering apportionment: The worker was not given refresher courses in relation to the task he was required to do because of his roster. The worker had complained about a problem with the job but the problem had not been remedied. The Incident Report identified actions which should have been taken by the respondent by way of injury prevention. 87The appellant's first challenge to his Honour's factual findings is not made out. The evidence clearly supported his Honour's finding that it was a requirement of the appellant that the cage be positioned in the open. 88The appellant's second challenge does, however, identify a respect in which his Honour mistook a relevant fact. In doing so his Honour also failed to take into account relevant matters, namely the "actions" available to be undertaken by the respondent and referred to in the Incident Report. There was no evidence as to who designed the cage and the ramp. The only evidence was that the cage had a "BASF" brand on it, that the cage with the cylinders was delivered by truck, by or on behalf of the appellant, and that in recent times the cages did not have a ramp. Although Mr Segerius surmised that the absence of a ramp was due to a decision of the appellant, he provided no factual basis for that surmise. 89Accordingly, his Honour erred in concluding that the design of the cage and ramp was within the control of the appellant. More significantly, he erred in proceeding on the basis that the respondent could do little about the "design of the cage and ramp" because they were outside its control. The evidence was that there were measures which the respondent could have taken to reduce the risk of injury to its employees when unloading the cage notwithstanding that it was designed to be unloaded using the sloping ramp. Those steps did not require any alteration to that current design. They included providing blocks of wood or other supports so as to make the ramp flat, providing anti-slip matting for use on the ramp, providing training to its employees directed to reducing the risk of slipping on the ramp and, possibly, providing a machine to enable the cylinders to be lifted directly from the cage. Those possible actions were either referred to in the Incident Report (see [43]) or the subject of evidence from Dr Cooke and Mr Horrigan. 90In relation to the other challenge made by the appellant, while it is not correct to say that an employer had to meet "a much higher standard" than a supplier, it is true that in relation to the worker, the respondent as his employer had much greater responsibilities for his welfare than did the appellant whose obligation was restricted to the safety of the cage itself. As the appellant submitted, it was the respondent which was in control of the unloading of the cylinders. Moreover, it is implicit in the Incident Report that before the accident the respondent had identified a problem with removing the cylinders and had tried different types of lifting machines without success. Thereafter the respondent seems to have done nothing about the problem which it had thus identified. 91There were, as the appellant submitted, other failings on the part of the respondent in its obligations to provide the worker with a safe system of work insofar as the unloading of the cylinders was concerned. Although his Honour had identified these, he did not refer to them when dealing with the question of apportionment. 92Because his Honour took into account a factually incorrect consideration and failed to take into account the matters referred to above, this Court's jurisdiction to review the discretionary judgment in relation to apportionment is engaged: A V Jennings Pty Ltd v Maumill (1956) 30 ALJR 100 at 101; Tarabay v Leite [2008] NSWCA 259 at [31]. 93Whilst the appellant owed a duty of care to Mr Spence to provide a cage and ramp which, when used as it was intended to be used, did not subject foreseeable users to an unreasonable risk of injury, the respondent as his employer remained subject to its obligation to take reasonable steps to provide him with adequate plant and equipment and a safe system of work. That obligation could not be discharged by the respondent by entrusting those tasks to others, such as the appellant: Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 at 680-681. 94Although the appellant breached its duty in providing the cage and ramp, there were a number of steps which the respondent could have taken to provide Mr Spence with a safer system of work. Those are the actions referred to above. I would apportion liability as to 75 percent against the respondent and 25 percent against the appellant. That apportionment takes account of the respondent's primary responsibility for the safety of its employees in circumstances where it was aware that the task of unloading the cylinders involved significant risk to a plant operator such as Mr Spence and did not take precautions which were reasonably available to be taken by it. Ground 3: The learned trial judge erred in admitting into evidence Exhibit A, the report of Dr J Cooke, dated 23 June 2009. 95The appellant objected to the admissibility of Dr Cooke's report at trial on a number of bases. The first was that his evidence was irrelevant unless a significant connection could be established between the ramp on which the worker slipped when the accident occurred and the ramp which Dr Cooke tested. His Honour rejected that objection because he was satisfied that there was a sufficient similarity between the ramp which Dr Cooke tested and the ramp involved in the accident. Certainly the photocopies of the actual cage in the Incident Report support such a similarity. The evidence of the worker and Mr Segerius was to similar effect. 96In rejecting that objection, his Honour made the point that the evidence of Dr Cooke was not that the test results which he obtained were the same as those which would have been obtained had the ramp involved in the accident been tested, but that those results were indicative of the sort of co-efficient of friction likely to be operative on the ramp which was in use at the time of the accident. That objection has not been raised in the appeal. That is appropriate in that there was ample evidence available to support his Honour's ruling. 97The appeal has raised two issues. The first was another aspect of relevance. The appellant submitted that the report of Dr Cooke related to slip resistance for pedestrian surfaces in an industrial context. The worker's accident did not take place on a pedestrian surface, but on a foldout ramp on a cage used for the transporting and storing of gas cylinders. The appellant submitted that Dr Cooke's opinion about the slip resistance suitability of a pedestrian surface had no relevance in a case concerning the slip resistance of a ramp on a cage. 98The second issue was that the report of Dr Cooke did not comply with s79(1) of the Evidence Act 1995. The appellant relied upon Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [32] where the plurality said: "32 To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence "has specialised knowledge based on the person's training, study or experience"; the second is that the opinion expressed in evidence by the witness "is wholly or substantially based on that knowledge"." 99The appellant submitted that Dr Cooke was not an ergonomist, nor was he an engineer, and had no qualifications which would permit him to give evidence in relation to alternative systems of work. The appellant submitted that this was what Dr Cooke had done at Blue 52G - L of his report which stated: "32 That task would have been less hazardous than the task being performed by Mr Spence at the time of the accident because the flap would not have been steeply sloping. If appropriate fold-out legs were fitted to the flap, it could be dropped down to provide a horizontal surface. Alternatively, blocks of wood or other supports of the correct height could have been used to make the flap into a horizontal surface. However, the ramp in that position (propped up to make a horizontal platform) would not have provided a completely safe working platform because of the need to manhandle the cylinders onto the trolley." 100I do not agree that the opinion of Dr Cooke in relation to the Australian Standard for a pedestrian surface in an industrial context was irrelevant in the way suggested by the appellant. There was no standard which directly applied to the chequerplate ramp used by the worker when he was injured. All that Dr Cooke did was to look for an analogous standard and by reference to that standard, indicate by way of comparative reasoning how much more slippery, and therefore dangerous, was the ramp being used by the worker when he was injured. 101Looked at in that way, that opinion of Dr Cooke was clearly relevant to the issues which his Honour had to decide. As was said by the High Court in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 62 ALR 85:- "... The passages from Wigmore on Evidence cited by Samuels JA in the Court of Appeal to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense." 102The second challenge to the opinion of Dr Cooke is also not made out. The academic qualifications of Dr Cooke went well beyond those of an architect (Blue 48C-K, 145E-147V). Academically he had degrees in science, architecture, and law and is a doctor of philosophy. From his resume he was not only a Member of the Australian Standards Committee, but is familiar with industrial standards generally, with particular expertise in slip testing. He has given evidence in court cases over many years. 103The corollary to being an expert in accidents involving slippery surfaces is that such an expert is also experienced in responses to slippery surfaces. In this case the response suggested by Dr Cooke did not require any particular expertise, but was largely a matter of common sense. If an important part of the risk to which the worker was exposed was a sloping ramp over which he had to move a heavy object, the removal of that slope as a matter of common sense would significantly reduce the risk. 104As a matter of practicality, however, the objection goes nowhere since the responses to the foreseeable risk of injury identified by Dr Cooke were fully endorsed by the appellant's engineer, Mr Horrigan. 105This ground of appeal has not been made out. Ground 4: The learned trial judge erred in finding that the ramp supplied as part of the cage was not safe for its purpose. Ground 5: The learned trial judge erred in finding that the design of the cage and ramp were within the control of the appellant. Ground 6: The learned trial judge erred in finding that the appellant knew or ought to have known that the manual system of work utilised by the respondent for unloading the heavy cylinders from the cage. Ground 8: His Honour erred in finding that it was reasonably open to the appellant to use chocks and legs on the ramp provided as part of the cage. Ground 9: His Honour erred in determining liability upon the basis that the existence of a reasonably practical alternative was determinative of whether or not the appellant was negligent in providing the cage and attached ramp which it provided. 106These grounds all raise aspects of breach of duty and can be dealt with together. 107The appellant submitted that because the longer ramp was of the type involved in the accident, the finding that it had a co-efficient of friction that was "within normal limits" meant that it was safe for the purpose for which it was being used. 108I have already indicated why that submission has not been made out. It misunderstands the evidence of Dr Cooke and the finding by his Honour. The ramp was not unsafe as a pedestrian walkway. It was unsafe when assessed in the context of its intended use. That use was the task of manhandling a 125 kg cylinder to ground level in circumstances where the ramp was wet. Mr Horrigan agreed with that assessment. 109The appellant submitted that because there was no evidence that the design of the cage and ramp was within the control of the appellant, his Honour erred in finding that a reasonable response to the foreseeable risk of injury by the appellant would have been to fit foldout legs to the ramp. 110This submission conflates two concepts. For the reasons already indicated, there was no evidence as to what part, if any, the appellant played in the design of the ramp. Whether the appellant had power to make an alteration to the ramp, raises a different issue. There was no evidence either way. There was, however, evidence that this was the means by which the appellant chose to supply gas, i.e. in a cage, with a ramp. 111When the matter came to trial, the appellant had available the report of Dr Cooke and the report of Mr Horrigan. The appellant well knew that the respondent would be submitting that a response to the foreseeable risk of injury was for the appellant to supply a ramp with foldout legs. The appellant did not adduce any evidence on that issue except for the report of Mr Horrigan. 112In those circumstances, the observations of Gibbs J (with whom Stephen and Mason JJ agreed) in Nelson v John Lysaght (Australia) Ltd [1975] HCA 9; 132 CLR 201 at 214 are appropriate: "The onus of proving that it was unreasonable not to take the precaution, of course, lay on the appellant. However, when the respondent, which must have had full knowledge of the nature, cost and practical consequences of the new installation, gave no evidence, and by its counsel asked no questions, to suggest that it was inordinately expensive or in any other way disadvantageous, the jury was entitled to infer at the very least that the advantages of the method which the respondent has since adopted were not outweighed by any disadvantages. The evidence was such as to entitle the jury to reach the conclusion that the respondent's system of work in force at the time of the accident, notwithstanding that it involved the provision of protective clothing, was such as to expose the appellant to a clear risk of serious injury, that it was practicable to eliminate or minimise that risk by the adoption of a different method, namely, that which has in fact since been adopted, and that it was unreasonable of the respondent not to have adopted that method before the accident occurred." 113It follows that in the absence of any evidence to the contrary from the appellant, it was open to his Honour to infer that the relatively simple modification to the ramp was practicable and could have been carried out by the appellant. 114The appellant submitted that there was no evidence to support his Honour's finding that the appellant knew, or ought to have known, about the manual system of work utilised by the respondent for unloading the heavy cylinders from the cage. In particular, there was no evidence that the appellant, through any of its servants, observed the respondent's process of unloading the cages. 115This submission is not made out. There is the evidence in the Incident Report at Blue 21P that "it is standard practice throughout Australia to manhandle cylinders in this way". That proposition was never traversed by the appellant. Moreover, the design of the cage with its chequerplate ramp was consistent with that evidence and invited that method of manually unloading gas bottles from the cage. Mr Dohrmann said that this method of unloading cylinders was common in Australia. Mr Horrigan said that it was an old method which had been in use since the 1960's. 116The appellant submitted that the alternative systems identified by his Honour, i.e. attaching foldout legs or advising the respondent to use chocks, were not a reasonable response to the foreseeable risk of injury. Because this manual system of unloading gas cylinders was generally used in Australia, a reasonable person in the position of the appellant did not have an obligation to do anything. In that regard, the appellant relied upon the observation of McHugh J in Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 315 at [38]: "38 A defendant is not negligent merely because it fails to take an alternative course of conduct that would have eliminated the risk of damage. The plaintiff must show that the defendant was not acting reasonably in failing to take that course. If inaction is a course reasonably open to the defendant, the plaintiff fails to prove negligence even if there were alternatives open to the defendant that would have eliminated the risk." 117This submission is not made out. The risk which required a response by the appellant was the distribution by it of large cumbersome 125 kg gas cylinders in a cage with a purpose built, integrated ramp. The ramp was plainly intended to be used in unloading cylinders without the provision of a safe and stable place to stand when the first few cylinders were unloaded. Where the potential consequences of that unsafe system of work involved the risk of serious injury to the person unloading the cylinders, inaction was not an option for the appellant. 118Once it is accepted that some response to the foreseeable risk of injury by the appellant was necessary, then the issue becomes the adequacy of the responses found to be reasonable by his Honour and that issue has already been addressed. 119Although his Honour did not deal with every aspect of s 5B of the Civil Liability Act 2002 (CLA), he did make appropriate references to it and it is clear that in his analysis of breach of duty, he followed the steps therein set out. 120His Honour considered the foreseeable nature of the risk and determined that the risk was not insignificant. As a result, he concluded that a reasonable person in the appellant's position would have taken appropriate precautions. In relation to that decision, it is clear that his Honour had regard to the matters raised in s 5B(2), i.e. the probability that harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity which created the harm. 121These grounds of appeal, which challenged his Honour's conclusions as to breach of duty, have not been made out. Ground 7: The learned trial judge in directing his inquiry on liability to the duty owed to the respondent and not to the duty owed to Mr Spence. 122This ground of appeal was not pursued. Ground 10: The learned trial judge erred in determining the question of liability on the basis that had a cage been provided with a ramp with chocks and/or legs on the ramp to enable the ramp to be level, the risk of injury to any worker moving gas cylinders would have been "reduced", rather than the correct questions namely whether it was unreasonable not to have done so in this case and whether doing so would have avoided the accident to Mr Spence. 123This ground, in terms, addresses considerations raised by s 5B(1)(c) and (2) CLA. The appellant's arguments relating to those considerations have been dealt with above. In oral argument the appellant also submitted that a finding of a "reduced" risk of injury would not satisfy the requirements of factual causation in s 5D(1) CLA because, as his Honour recognised (Red 44N-P), a worker "would still be required to manhandle the gas cylinder from the cage, across a level chequerplate ramp" and could suffer injury in the process of so doing. The appellant submitted that a finding that the risk of injury would have been "reduced" was not sufficient to establish factual causation. 124This submission is not made out. Section 5D CLA relevantly provides: "5(1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and ..." 125The most recent statement of principle in relation to s 5D is in Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267 where the plurality said: "18 The determination of factual causation under s 5D(1)(a) is a statutory statement of the "but for" test of causation: the plaintiff would not have suffered the particular harm but for the defendant's negligence. While the value of that test as a negative criterion of causation has long been recognised, two kinds of limitations have been identified. First, it produces anomalous results in particular cases, exemplified by those in which there is more than one sufficient condition of the plaintiff's harm. Secondly, it does not address the policy considerations that are bound up in the attribution of legal responsibility for harm." 126The decision in Strong recognises that the test of factual causation in s 5D(1)(a) may be satisfied in circumstances not only where the defendant's negligence was a necessary condition of the occurrence of the harm, but also in circumstances where there were two sets of conditions jointly sufficient to account for the occurrence of the harm and the defendant's negligence was necessary to complete one of those sets of conditions. "20 Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm." 127To the extent that the appellant's submission is that causation is not made out if there is more than one necessary condition for the occurrence of the injury, that submission must be rejected. 128In State of Victoria v Bryar & Anor (1970) 44 ALJR 174 Barwick CJ (with whom McTiernan Owen and Walsh JJ agreed) said at 175: "To satisfy the element of causation, generally speaking it would be necessary to identify the nature of the step which the jury on the available evidence could conclude that a teacher ought to have taken but did not take. That act, if the failure to take it is to be accounted negligent, must be such as the foreseeable risk of injury would require having regard to the nature of the risk and the extent of injury should the risk mature into actuality. It is necessary that the jury should conclude as a matter of evidence and inference that more probable than not the taking of that step or steps would have prevented or minimised the injury which was in fact received." 129Statements to similar effect were made in Kuhl by the minority at [45] and by the plurality at [104]. In Roche Mining Pty Ltd v Graeme Wayne Jeffs [2011] NSWCA 184 McColl JA (with whom Basten JA and Tobias AJA agreed] said: "81 Roche's written submissions on causation contended that the respondent had to establish that the transverse stair access system would have obviated the risk of injury and that it was not sufficient that it be established that that system would have reduced the risk. It is apparent from Kuhl (and numerous other authorities, as to which see Varga v Galea [2011] NSWCA 76 (at [25])) that that submission must be rejected. It is sufficient that the suggested precaution would have minimised the injury. The primary judge (at [118]) accepted the expert evidence that such a system would have significantly reduced the risk of injury. That was sufficient to discharge the respondent's burden of proof in this respect." See also Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239 at [98] - [102]. 130Those cases make it clear that the relevant question as to factual causation, which the trial judge was required to and did address, was whether more probably than not, the taking of steps to make the ramp horizontal by using chocks or inserting foldout legs would have prevented or minimised the injuries sustained by Mr Spence. 131Mr Spence's injuries occurred because his left foot slipped on the wet sloping ramp as he was manoeuvring the gas cylinder down that ramp. His Honour found that the use of some mechanism to prop up the ramp so that it formed a horizontal platform would have reduced the risk of injury to any worker moving gas cylinders: [Red 44N-P). He also found that although the risk of slipping was addressed by eliminating the slope of the ramp, there remained a risk of injury because the worker would still be required to manhandle the cylinders from the platform and down some 15 centimetres onto a trolley. The trial judge's findings were sufficient to justify his Honour's conclusion that the injuries which Mr Spence had sustained as a result of slipping on the sloping and wet ramp would not have occurred if the ramp had been flat, which would have been the case had the appellant or respondent taken the measures that ought to have been taken. 132For these reasons, the appellant's argument that his Honour erred in finding factual causation is rejected. This ground of appeal has not been made out. Conclusion 133It follows from the above that the appellant has been partially successful in the appeal in that I have found error in his Honour's apportionment of liability. Otherwise, the appellant's challenge to his Honour's finding of liability against it has failed. 134Since most of the appeal was devoted to the appellant's challenge to liability, the appellant should not have the whole of its costs of the appeal, even though it has been partially successful. In the circumstances of this appeal, it is reasonable that the appellant recover 50 percent of its costs. 135The situation is different in relation to the trial. Except for brief submissions as to apportionment, the trial focused entirely upon liability. Since the respondent was successful on that issue, the appellant should pay the costs of the trial. 136The orders which I propose are as follows: (1) The appeal is allowed in part. (2) The judgment that the respondent is entitled to contribution of 50 percent of the amount paid to the worker is set aside. (3) In lieu thereof, there should be judgment that the respondent is entitled to contribution of 25 percent of the amount paid by it to the worker. (4) The respondent is to pay 50 percent of the appellant's costs of the appeal. (5) Otherwise the orders made by his Honour are confirmed. 137BERGIN CJ in EQ: I agree with Hoeben JA.

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