Davies v Whitehaven Coal Mining Limited

Court of Appeal (NSW)|2020-05-18|Before: Macfarlan JA, McCallum JA, Wright J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] Rodney Davies was employed by Whitehaven Coal Mining Limited as a mine worker at the Whitehaven Colliery, an underground coal mine at Narrabri. In June 2011, Mr Davies sustained an injury to his left shoulder when he slipped while climbing down from the top of a load haul dump machine or "LHD", a large transport machine used to haul loads of material underground and above ground at the mine. The LHD engine compartment cover had been modified by Whitehaven in such a way as to make it necessary for Mr Davies to climb onto the top of the LHD in order to close the cover after refuelling the machine, where previously he had been able to do that from the ground. The LHD had two rungs (part of the original design) built in to the back of the machine which could be used as a form of ladder. There were also two small handles (also part of the original design) on the horizontal face at the top of the LHD which could be held to aid ascent and descent. Mr Davies' injury occurred when he was descending from the top of the LHD after refuelling in an underground bay which was often wet with diesel and water spillage. Mr Davies brought proceedings against Whitehaven claiming damages for breach of the duty owed to him as Whitehaven's employee. The main issues at trial were liability and contributory negligence. On 30 August 2019, the primary judge (Wright J) held that Mr Davies had failed to establish that Whitehaven had breached its duty of care. Against the risk of error in that conclusion, his Honour proceeded to determine the issue of contributory negligence, finding that Mr Davies had failed to take reasonable care for his own safety and that any damages recoverable should be reduced by 30% on that account. Mr Davies appealed from that decision. The principal issue in the appeal was whether the primary judge confined his attention to the issue of elimination or prevention of an existing risk and failed to address the separate aspect of Mr Davies' case that the modification of the engine cover created an unnecessary risk. Held (per McCallum JA; Macfarlan JA and Simpson AJA agreeing), allowing the appeal: (1) The modification to the LHD created an unnecessary risk where none existed before it was made. Whitehaven owed Mr Davies a duty not to do that: at [45]. (2) There was no evidence that any form of risk assessment was carried out and no proper basis for inferring that it was. The primary judge did not conclude otherwise: at [50], [52]. (3) The rungs and handholds were not adequate safeguards for accessing the top of the machine when refuelling the LHD underground. It does not follow from the fact that the original design of the machine included rungs and handholds which could be used to access the top of the machine that workers could safely be required to do so every time they needed to refuel underground: at [64], [65]. (4) Whitehaven failed to establish contributory negligence: at [75], [76]. Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37-9; [1964] HCA 16; Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14 at [12]; Commissioner for Railways v Halley (1978) 20 ALR 409 at 412 applied.

Judgment

MACFARLAN JA: I agree with McCallum JA.
McCALLUM JA: Rodney Davies was employed by Whitehaven Coal Mining Limited as a mine worker at the Whitehaven Colliery, an underground coal mine at Narrabri. In June 2011, Mr Davies sustained an injury to his left shoulder when he slipped while climbing down from the top of a load haul dump machine or "LHD", a large transport machine used to haul loads of material underground and above ground at the mine.
In 2016, Mr Davies commenced proceedings against Whitehaven claiming damages for breach of the duty owed to him as Whitehaven's employee. The proceedings were heard over four days in the Common Law Division. Some components of damages were agreed while others remained in dispute. The main issues at trial were liability and contributory negligence. On 30 August 2019, the primary judge (Wright J) held that Mr Davies had failed to establish that Whitehaven had breached its duty of care. Against the risk of error in that conclusion, his Honour proceeded to determine the issue of contributory negligence, finding that Mr Davies had failed to take reasonable care for his own safety and that any damages recoverable should be reduced by 30% on that account. Mr Davies appeals from those findings.
To the extent that he reasonably could, the primary judge quantified damages contingently but that task was complicated by the fact that Mr Davies had suffered a subsequent injury before leaving his employment with Whitehaven. That raised an issue as to the application of this Court's decision in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 as to which further submissions would be required and which, in light of his conclusion as to liability, his Honour did not resolve. For that reason, Mr Davies accepted that, in the event that the appeal succeeds, the proceedings should be remitted to the primary judge to assess damages.
I have concluded that the appeal should be allowed and the matter remitted for the following reasons.

Circumstances in which the accident occurred

The primary judge noted that the areas of dispute as to what happened up to and including the accident were limited. His Honour generally accepted that Mr Davies made "an honest attempt to recollect what occurred and how it has affected him": at [3]. His evidence may be summarised as follows.
At the time of his injury, Mr Davies was operating an LS171 model LHD manufactured by a company called Sandvik. He had received training as to how to operate that model. Whitehaven had four LHD machines. It is not clear whether Mr Davies always operated the same machine. To the extent that anything turns on that, it appears to have been assumed that he did and the discussion that follows makes the same assumption.
The primary judge reproduced the following photograph of the LS171 model (unfortunately that is the best photograph available in the evidence of the critical components of the machine):
Mr Davies said that more than half his time as a mine worker was spent operating the LHD. The machine operated on diesel and had to be refuelled and rewatered from time to time, sometimes in an underground bay. The primary judge found that it was not unusual for those bays to be wet with groundwater and diesel spillage: at [85].
As manufactured, the LHD's engine was covered by a single piece, light gauge hardened steel cover bent at a 90 degree angle which opened upwards on the side of the machine and was held open with the support of gas struts. In that original form, the cover could be opened and closed for refuelling by the operator from the ground. At some stage, Whitehaven modified the LHD by replacing the L-shaped cover and the struts with a heavier gauge flat steel sheet in two parts fixed together with a piano hinge. That was said to have been done because the struts were beginning to fail but there was no clear evidence about the state of the struts.
There was a factual dispute at trial as to whether the modification had in fact been made as at the date Mr Davies sustained his injury. The primary judge found that it had (at [22]) and that finding is not challenged on appeal.
A result of the modification was that the engine cover no longer held itself open. Instead, a sheet that hung vertically from the top side edge of the machine had to be lifted and rotated back through 270 degrees so as to rest on top of the horizontal sheet on the top of the truck. The original mechanism and the modified mechanism (as depicted in an expert report tendered at the trial) were as follows:
Following that modification, Mr Davies said he could still open the cover from the ground. However, once he had flipped it over onto the top of the truck, he could no longer close it from the ground. It is not clear from his evidence whether that is because he simply could not reach the leading edge of the flap once it was resting on the top of the machine or whether it was an issue with the weight of the flap (or both).
In any event, it was not in dispute that, in order to close the flap after refuelling the machine, Mr Davies had to climb on top of the LHD to lift the flap back over to its closed, vertical position. Obviously, having done that, he had to get back down again. The top of the rear of the LHD, including the engine compartment, was approximately 1.54 metres from the ground.
There were two rungs built in to the back of the machine which could be used as a form of ladder. Surprisingly, there was very little evidence at trial concerning their design and style. Their precise specifications cannot be determined. The primary evidence on that issue consists of grainy photographs such as the one reproduced above. It can be seen from that photograph that the rungs were affixed to the vertical face at the back of the LHD. They appear to be steel. Less clear in the photograph but still visible are two small handles on the horizontal face at the top of the LHD which could be held to aid ascent and descent.
As can also be seen in the photograph, there were no vertical hand rails beside the rungs; only the two handles affixed to the top of the machine. That meant that, in order to get back down to the ground, it was necessary for Mr Davies to crouch down on the top of the machine to grip the handles and support his weight from that crouched position while lowering himself backwards over the edge of the machine and placing his feet onto the rungs.
Mr Davies' injury was sustained on a day when, while climbing down off the top of the machine after refuelling in an underground bay which he described as wet with diesel and water spillage, Mr Davies' foot slipped on one of the rungs. He gave evidence that he weighed about 77kg at that time and was wearing about 15kg of equipment. The primary judge accepted that Mr Davies' left foot slipped and that he lost his balance and lost his grip with his right hand causing him to take all his weight on his left shoulder.
The finding was expressed as follows at [38]: "After closing the cover, Mr Davies was attempting to dismount the LHD by holding onto the handgrips, placing his left foot on the top rung, then putting his right foot on the bottom rung and then moving his left foot onto the ground. At the start of this process, his left foot slipped from the top rung. At the time his foot slipped, most of his body was still effectively crouched over, or at the level of, the top of the LHD, although his feet were over the end of the LHD on, or about to reach down towards, rungs on the ladder. Losing his balance as he slipped, he grabbed harder on the handhold in his left hand and lost his grip on the handhold with his right hand. This caused him to swing, bearing his full weight on his left side, and to wrench his left shoulder. He then let go and landed, feet first, on the ground."
Mr Davies suffered a traumatic partial rotator cuff tear. After a period of being treated (with mixed success) with injections and physiotherapy, he underwent surgery. His recovery from the surgery was complicated by the development of "adhesive capsulitis". The primary judge noted the evidence of Mr Davies' treating surgeon that "these partial tears tend to extend with time". His Honour appears to have accepted the joint evidence of the experts that Mr Davies had undergone numerous treatments without success. The capsulitis also failed to respond to operative and non-operative measures and was ongoing. It was Mr Davies' case that the injury ultimately "took him out of the coal industry".
An incident report filed by Mr Davies' supervisor, Mr David Moulds, on 2 June 2011 stated that Mr Davies had "lost footing on slippery surface". However, the primary judge noted that Mr Davies had not attributed his slip to the presence of oil or water on his boots in either his evidentiary statement or in his oral evidence: at [39]. In cross-examination, he was asked about the state of his boots when he ascended and descended the ladder and whether he had checked his boots for water or oil before he began the ascent. The primary judge found at [39] that Mr Davies had: "accepted that since the rungs had been fine, in the sense of not being slippery because of diesel or water, when he went up the ladder, the rungs would have been fine when he was coming down, given that he was not on top of the LHD for very long and he was the only person there. The same process of reasoning also indicates that, since his boots were not so wet or greasy that they caused him to slip when going up the ladder, they were unlikely to be the cause of his slipping when descending."
Accordingly, the primary judge concluded that Mr Moulds' description of the surface as "slippery" was speculative and that "the evidence viewed as a whole did not reliably establish any specific cause for Mr Davies' left foot slipping as he started to descend": at [39]-[40]. For my part, I do not see how Mr Davies could have walked around the refuelling bay and then climbed up and down the two rungs without transferring some moisture and dirt onto the rungs. Certainly, I do not accept that the fact that the foot did not slip on the way up (as opposed to the way down) indicates that it was free of grease or moisture. They are entirely different movements. In any event, probably nothing turns on that. The fact is that, for whatever reason, Mr Davies' boot slipped on one of the rungs on the way down.
There was no explanation in the evidence as to why, when faults with the gas struts were discovered, it was decided to modify the engine cover in-house rather than sending it back to the original manufacturer for repair. The expert for Whitehaven, Professor Hebblewhite, stated in his report that the modifications were made "as a result of regular problems with the original design". He also stated that the modification was "a relatively simple change, and would have been carried out in consultation with engineering staff at the mine." However, as submitted on behalf of Mr Davies, those assertions were not admitted as to their truth and were not otherwise proved. There was no evidence that there was any consultation with engineering staff before the modification was made.
Further, there was no evidence of any consultation with the manufacturer, Sandvik. In advance of the trial, Mr Davies served a subpoena on Whitehaven seeking: 1. Any documents relating to a job safety analysis, risk assessment or safe work procedure carried out to identify the hazards/risks created by the modification of the engine bay covers in the machine designated "Eimco 03" between April 2010 and 2 June 2011; and 2. Any documents relating to consultations with the manufacturer of the machine designated "Eimco 03" relating to modifications to the engine cover of the machine carried out between April 2010 and 2 June 2011.
Whitehaven responded that there was nothing to produce. It may be inferred that Whitehaven did not consult Sandvik about repairing or modifying the engine cover and did not undertake any formal risk assessment concerning the modification in fact made.

The case before the primary judge

Mr Davies' case on liability was at its core relatively simple. It was that the modification to the LHD created an unnecessary risk (the risk of falling from a height) because it required Mr Davies to climb to the top of the machine in order to close the engine compartment cover where previously he had been able to do that from the ground.
Unfortunately, the presentation of the case did not reflect that simplicity, for a number of reasons. Without seeking to attribute blame, it may first be noted that the first amended statement of claim filed 2 June 2017 included 19 particulars of negligence. Particulars (a) and (b) squarely raised the case that the modification of the engine cover created an unnecessary risk. However, there were many further particulars incorporating many references to statutory obligations, regulations and guidelines.
A proliferation of repetitive or similar allegations will always offer the temptation to summarise. The primary judge endeavoured to summarise the plaintiff's lengthy particulars at [47] of the judgment under six categories, of which his Honour said only five required consideration having regard to the state of the evidence. However, while providing a helpful distillation of the complexities of the pleading, that summary shifted emphasis away from the allegation at the heart of the plaintiff's case on liability which was the creation of an unnecessary risk where no such risk existed before and the failure to assess that risk before making the modification to the engine cover of the LHD. His Honour recorded that allegation at [44] of the judgment but it was not reproduced in the grouping of the particulars.
Further complexity was introduced by the way in which the defence was conducted. In fairness, it should be noted that the first amended statement of claim did not expressly plead an allegation that the LHD machine had been modified prior to the accident. Instead, all of the facts relied upon by the plaintiff on liability were collected in a single paragraph which was "not admitted" in the defence. Accordingly there was no pleading as to the allegation of modification. It would have been preferable for the plaintiff to have a pleading which included separate allegations so as to require the defendant to plead to the individual components of his case.
Even so, the fact that the machine had been modified prior to the accident appeared to be common ground until the commencement of the trial. Each party qualified an expert witness who was asked to make that assumption.
However, the conduct of the defence at the hearing introduced a measure of confusion in that respect. According to Mr Davies' evidence, his only reason for climbing onto the top of the LHD machine was to close the modified cover. It was not suggested to him in cross-examination that he had not in fact climbed onto the top of the machine on the day he was injured; indeed, it was put to him that he had done so on many previous occasions. However, it was also suggested (inconsistently) that he may have been wrong as to whether the machine had yet been modified as at the date of his accident. The basis for the cross-examination on that issue was the incident report form completed by Mr Moulds. In answer to a question on the form "what was the equipment problem?" Mr Moulds had written "struts missing off cover". In answer to the further question "what are root causes of this incident", Mr Moulds had written "struts missing on water cover: Rod climbed onto EIMCO to close cover and slip because of oil on boots".
Notwithstanding the inclusion of the words "Rod climbed onto EIMCO to close cover and slip because of oil on boots" (a pithy statement of Mr Davies' case), the two references to missing struts were relied upon as the basis for raising an issue as to whether the machine had in fact been modified by that time. Confusingly, it was also put to Mr Davies in cross-examination that he had been "up and down the ladder quite a lot" before the day of his accident. It was put to him that, if he had both hands gripping the handholds on the day of the accident and was unable to hold on with both of them after he lost his footing, he "simply [wasn't] gripping properly".
Furthermore, the defendant put inconsistent arguments as to the significance of the absence of any evidence of a written risk assessment carried out by the defendant at the time the modifications were made. At times the defence case assumed that the modification would not have been undertaken without a written risk assessment, relying on its absence to support the case as to when the modifications were made. Senior counsel for the defendant said "but it is with respect, the sort of thing that common sense and the evidence of Professor Hebblewhite in particular would suggest ought to be documented, that there ought to be a record of it. We know there isn't any." The primary judge was invited to infer, from the absence of a written risk assessment, that the modifications had not been made as at 2 June 2011 (leaving Mr Davies' frequent escapades up onto the top of the LHD unexplained).
However, inconsistently with that submission, the cross-examination of the plaintiff's expert put a case that there was no significance in the absence of a written risk assessment. Senior counsel for the defendant suggested the absence of any record of a risk assessment was explained on the basis that it would "go without saying" that whoever decided to make the change thought it was "an improvement". He put that "an assessment was made otherwise there wouldn't have been a determination to change it", inviting the witness to accept that as "a matter of common sense". The point of that exchange was evidently to invite the primary judge to infer that, although there was no written record of it, some evaluation of the merits of the modification must in fact have been undertaken and that those who undertook it must have inferred that it was reasonable to leave it to the mine workers to "tackle that task" (of reversing back down the ladder).

Decision of the primary judge

The primary judge noted that it was common ground that liability was to be determined in accordance with common law principles and not the Civil Liability Act 2002 (NSW). As his Honour recorded, that followed from the fact that the claim was brought under the Workers Compensation Act 1987 (NSW). Section 3B(1)(f) of the Civil Liability Act disapplies itself to such a claim (with one exception which is not relevant here).
The primary judge noted that there was little contest as to the applicable principles and referred to the explanation of the nature of the duty of care owed by an employer to an employee in the engagingly concise judgment of the High Court in Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14 at [12]: "An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work."
The primary judge then said at [79]: "A useful analysis of what the plaintiff, being an employee, must relevantly prove in this case in order to establish that his employer has breached such a duty can still be found, despite its age, in Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury, 2nd ed (1979) at 16 relevantly as follows: '(a) That there was a risk of injury which was reasonably foreseeable. (The foreseeability issue.) (b) That there were reasonably practicable means of obviating such risk. (The preventability issue.) ... (d) That the defendant's failure to eliminate the risk showed a want of reasonable care for the plaintiff's safety. (The issue of reasonableness.)'"
Again, while that may have been a helpful summary of principle, it tended to shift emphasis away from the plaintiff's primary case that the modification created unnecessary risk where previously there was none.
His Honour found in favour of Mr Davies on the "foreseeability issue" but against him on the "preventability issue", concluding at [92]: "I conclude, therefore, that although the plaintiff has established that there was a real risk of an injury to an employee in the performance of the task of descending from the LHD after refuelling and re-watering which was reasonably foreseeable, there was no failure on the defendant's part to eliminate the risk that showed a want of reasonable care for the plaintiff's safety. In the circumstances, in my view Whitehaven provided adequate safeguards, even taking into account the possibility of thoughtlessness, or inadvertence, or carelessness on the part of an LHD operator such as Mr Davies."
The central complaint in the appeal is that, in reaching that conclusion, his Honour confined attention to the issue of elimination or prevention of an existing risk and failed to address the separate aspect of Mr Davies' case that the modification of the engine cover created an unnecessary risk.

Creation of unnecessary risk (grounds 1 and 4)

That complaint is addressed in grounds 1 and 4 in the amended notice of appeal, as follows: (1) His Honour the primary judge erred in: (a) failing to consider the appellant's contention that the respondent breached its duty of care to the appellant by creating an unnecessary risk of injury; and (b) failing to find that, in carrying out the modifications to the LHD it carried out, and in the circumstances in which it did, the respondent breached its duty to the appellant. (4) His Honour should have found that because: (a) as a result of the modifications being made it was necessary for the operator to climb onto and descend from the top of the LHD; and (b) it was occasionally necessary for the operator to perform that task in underground fuelling bays where the surface would be wet and contaminated by diesel and grease; and (c) the task of maintaining three points of contact whilst ascending and descending in the conditions was difficult the respondent should not have carried out the modifications that it did.
The primary judge accepted at [75] that there was a risk of injury to an employee as a result of modifying the engine compartment cover: "I find that as a result of the modification to the engine compartment cover, an operator such as Mr Davies was required to go to the top of the LHD to close the cover after refuelling at the underground diesel bay and that there was a risk of falling or slipping while he descended from the top of the LHD, which was the risk that was relevant in the present case."
Mr Davies submitted that those findings indicated an acceptance that the modification to the engine cover had created a risk of injury where none had previously existed. However it was submitted that, apart from recording the submission at [44], the primary judge did not deal with the contention that the creation of unnecessary risk amounted to a breach of duty.
Whitehaven disputed that analysis of the primary judge's reasons, submitting that it was "beyond dispute that the rungs and handholds were there as part of the machine because there would from time to time be a need for people to use them to get up onto it" (respondent's written submissions at par 5). It was submitted that, although Mr Davies was required to use the ladder more often after the modification, the necessary controls for that task (the rungs and the handholds), being part of the LHD's original design, adequately addressed the risk.
Whitehaven's submissions on this issue glossed over the very issue Mr Davies contends the primary judge did not address. It was submitted that "plainly difficulties had developed with the gas operated struts" and that "it must be a reasonable expectation that that was a recurrent problem which so long as the struts were in use might bedevil the refuelling task and lead to operators climbing up in any event." There was no evidence to support those assertions. The suggestion that the asserted difficulties with the struts (as to which there was scant evidence at best) might prompt operators to climb up "in any event" makes no sense. The unequivocal evidence was that the only reason Mr Davies needed to climb onto the top of the machine was to reach the modified cover. Struts or no struts, he could reach the original cover from the ground. The submission failed to grapple with the central point of the appeal, which was that the primary judge did not address whether there was a need in the first place to make a modification that would create a risk of injury that did not previously exist.
There is no dispute as to the fact that the modification created the need for Mr Davies to climb onto the top of the LHD machine whenever he refuelled in an underground bay whereas previously, so far as the evidence reveals, there was no need for him to climb onto the top of the machine at all. Further, both expert witnesses accepted that climbing onto the top of the machine entailed a risk of slipping or falling. There was no explanation as to why the decision was made to modify the machine rather than have it repaired by the manufacturer. I am satisfied that the modification created an unnecessary risk where none existed before it was made. Whitehaven owed Mr Davies a duty not to do that. I would uphold grounds 1 and 4.

Failure to carry out a risk assessment (ground 2)

The parties addressed grounds 2 and 3 together but in my view ground 3 is more conveniently dealt with together with ground 5. Ground 2 is: 1. (2) His Honour the primary judge erred in failing to find that the respondent did not carry out any risk assessment before modifying the LHD.
The primary judge accepted that "no formal, documented risk assessment in relation to the modification was prepared": at [23], see also [73], [75], [82]. That finding is not challenged. Mr Davies submits that the primary judge should have gone further and also concluded that no risk assessment of any kind was undertaken.
It is by no means clear to me that, in referring to the absence of any "formal, documented risk assessment", the primary judge was indicating his acceptance that some other kind of assessment may have been carried out. Mr Davies submits that the primary judge appears to have accepted an assumption made by Professor Hebblewhite to the effect that the modification would have been made in consultation with an engineer which was likely to have included a consideration of the risks involved in the changed configuration. It was submitted that his Honour should not have accepted that aspect of the Professor's evidence because it was an unproved assumption and fell within the restriction under s 136 of the Evidence Act 1995 (NSW) limiting the purpose for which it could be used.
Whitehaven responded by repeating the unproved assumption, submitting that "the evidence showed that a change was made [to the LHD], so that it follows there was a decision to make it which must have been preceded by some consideration or assessment." It was submitted that "that was the evidence" but no references were provided to support that assertion. Instead, the submission made reference to an earlier submission where it was asserted that the proposition that "a decision had been taken to modify [the engine cover] and that that would have involved prior consideration" seemed to be "common ground". It was not. Professor Hebblewhite stated in his report: "Such a modification was a relatively simple change, and would have been carried out in consultation with engineering staff at the mine. Such consultation is likely to have included a consideration of the risks involved in the changed configuration. However, no documentation on specific risk assessments has been provided, and so this should be a matter for further evidence. However, it should also be noted that simply because Mr Davies was "not aware" of any formal change process, or risk assessment or Safe Work Procedure - this does not mean that such processes and document did not exist."
That was not proof that the decision to modify the engine cover was preceded by a risk assessment and Mr Davies did not accept it as such. As already noted, the experts' reports went into evidence subject to a direction under s 136 of the Evidence Act 1995 (NSW) limiting their use to identify the assumptions made, not to prove that those assumptions were true. Professor Hebblewhite's statement that there was likely to have been informal consideration of the risks involved in the changed configuration is speculation. There was no evidence capable of supporting a finding that Whitehaven made any consideration or assessment of the risk of injury to workers before or after carrying out the modification.
In their joint expert report, the experts agreed that, if there was no assessment of the risks in any form, the absence of such an assessment posed an increased risk of injury to operators of the LHD. They also agreed that accessing the top of the LHD in dry conditions "on the surface" (above ground) carried a risk of injury and that doing so in wet and greasy conditions in a fuel bay underground carried a greater risk of injury.
There is no evidence whatsoever that any form of risk assessment was carried out and no proper basis for inferring that it was. However, as already indicated, I am not persuaded that the primary judge concluded otherwise and for that reason I would reject this ground.

Adequate safeguards (grounds 3 and 5)

Grounds 3 and 5 are: (3) His Honour the primary judge erred in finding that, had a risk assessment been carried out by the respondent at the time it modified the LHD: 1. the respondent would have determined that the controls already in place to safeguard the appellant against the risk of injury were adequate, and 2. a reasonable person in the respondent's position would not have done more in response to the increased risk of injury caused by the modifications. (5) His Honour erred in concluding that the respondent had provided adequate safeguards for the appellant's safety, even taking into account the possibility of thoughtlessness, inadvertence, or carelessness on the part of the appellant.
My reason for addressing these grounds together is that the primary judge's finding as to what would have been concluded had a formal risk assessment been carried out was inextricably linked with his Honour's conclusion that the controls in place after the modification (the rungs and handholds) were adequate to address the risk of falling or slipping when descending from the top of the LHD machine. The primary judge found at [92] that "Whitehaven provided adequate safeguards, even taking into account the possibility of thoughtlessness, or inadvertence, or carelessness on the part of an LHD operator such as Mr Davies."
His Honour further found at [75]: "In addition, I accept that the failure of Whitehaven to undertake a formal risk assessment of that modified system of work may have led to an increase in risk, in a theoretical sense. But, if a risk assessment had been carried out, I am satisfied that, consistently with Prof Hebblewhite's evidence, any hazard arising out of the need to descend from the top of the LHD would have been assessed as reasonably and appropriately managed by the provision of the ladder and handholds on the rear of the LHD and appropriate training for, and safety checking processes and safe working practices to be carried out by, the operator in question." (emphasis added)
Mr Davies challenges those findings.
It may be accepted, as contended by Whitehaven, that the two rungs and two handholds were part of the original design and that the modifications did not alter those features. Whitehaven noted that there was no evidence to suggest that the ladder was defective. Further, there was evidence that Mr Davies was trained on how to maintain three points of contact when using a ladder and was aware that he was required to do so for his own safety.
Both experts accepted that the rungs and handholds were the controls in place for accessing the top of the LHD. However, they disagreed as to whether they were adequate. Mr Cockbain, the expert called by Mr Davies, was of the view that they were not. The basis for his opinion was the absence of any engineering controls which might prevent a fall in favour of relying upon the operator to climb safely. He expressed the opinion that training a worker to climb the ladder safely was a lower order control measure which should only be relied upon when higher order control measures are unable to be implemented. Mr Cockbain provided examples of more appropriate control measures in his expert report, including a scissor deck and a portable platform. The primary judge found those suggestions "involved ascending and descending from a height by a ladder or steps". Accordingly, he found that "none of them would eliminate the risk of falling or slipping" especially at an underground diesel bay: at [71(3)]. The primary judge rejected Mr Cockbain's suggestion that those alternative controls were "simple" and "portable".
Professor Hebblewhite was of the opinion that the ladder and handholds were adequate controls, even where the operator was working in wet and greasy conditions, provided the operator used appropriate caution. However, he also agreed with the following propositions (see also [73]-[75]): 1. The modification increased the risk of injury; 2. It was undesirable for an employee to work on top of the LHD; 3. Working on top of the LHD had only become necessary as a result of the modification; 4. The ladder affixed to the LHD was never intended to be used on a day-to-day basis;
Professor Hebblewhite considered that the additional risk posed by the slippery conditions could be managed by telling the worker to be careful.
The primary judge preferred the evidence of Professor Hebblewhite, describing him as more measured and responsive than Mr Cockbain and having more relevant experience. His Honour found that Mr Cockbain "had a tendency at times to stray into arguing in support of, and avoid anything that might detract from, the plaintiff's case rather than answering the questions asked to the best of his ability as an independent expert": at [70].
I acknowledge that the primary judge had the benefit of seeing the witnesses and so enjoyed an advantage in assessing their evidence. That said, based on a reading of the transcript alone, it is not clear to me what Mr Cockbain said to give that negative impression. He did not seem to me to be arguing the case as opposed to expressing his opinion on the question as to which it had been sought. He was clearly of the opinion that the rungs and handholds were inadequate controls. In my view, that was a respectable opinion. The cross-examiner accused him of being argumentative at times when, as far as I can see, he was simply expressing that opinion. The fact that it supported the plaintiff's case does not mean he was behaving as an advocate for that case.
Conversely, to accept Professor Hebblewhite's evidence requires acceptance of the unfounded assumption that some form of risk assessment took place when there is no evidence to suggest that it did.
For my part, I found Mr Cockbain's evidence logical and compelling. It does not follow from the fact that the original design of the machine included rungs and handholds which could be used to access the top of the machine that workers could safely be required to do so every time they needed to refuel in an underground bay. Consultation with the manufacturer or a formal risk assessment may well have led to the conclusion that they could not.
Further, I am satisfied that the rungs and handholds were not adequate safeguards for that purpose. That conclusion is informed in part by my conclusion that a modification that had the effect of requiring workers to climb on top of the machine where that had not previously been required should not have been made in the first place. To create a risk of gravity and then address it only by directing the worker to "tackle that task" using the existing handholds and steps provided inadequate protection of the safety of the worker, in my view. The manoeuvre Mr Davies was required to undertake to get down from the machine was akin to lowering himself over the edge of a cliff (albeit a short cliff). It was not a step down a ladder with handholds on the side; it was a climbing manoeuvre.
For those reasons, I would uphold grounds 3 and 5.

Contributory negligence (grounds 6-8)

The primary judge made a contingent finding that Mr Davies was liable for contributory negligence. His Honour found that if Mr Davies "had been exercising due caution in the environment of the underground diesel bay with which he was familiar and maintaining a firm grip on both handholds and having one of his feet on a rung, as he was aware was appropriate and necessary to maintain three points of contact, he would not have lost his grip with his right hand when his left foot slipped": at [98]. His Honour considered on that basis that there should be a 30% deduction from any damages recoverable by Mr Davies.
Mr Davies challenges those findings in grounds 6 to 8 as follows: 1. (6) His Honour the primary judge erred when he made a contingent finding that the appellant was guilty of contributory negligence, when what the appellant was doing when injured was required by the plant and equipment and the system of work which was supplied to him by the respondent. 2. (7) His Honour the primary judge should have found that the respondent had not proved that the appellant suffered injury because he failed to take reasonable care for his own safety. 3. (8) That his Honour the primary judge erred when concluding that it was just and equitable that any damages recoverable by the appellant should be reduced by 30% having regard to his share in the responsibility for the damage.
I would uphold those grounds.
The principles concerning contributory negligence in an employment context were not in dispute. Two key principles apply. First, contributory negligence is not established by showing mere thoughtlessness, inattention or inadvertence: Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37-9; [1964] HCA 16 (Windeyer J). The employer's duty of care to establish a safe work environment requires it to consider "the possibility of thoughtlessness, or inadvertence, or carelessness": Czatyrko v Edith Cowan University at [12].
Secondly, the Court should be slow to place blame on an employee who was merely getting on with his employer's business and had not consciously adopted a "slip-shod approach to his work or [any] disobedience to instructions": Commissioner for Railways v Halley (1978) 20 ALR 409 at 412 (Stephen J).
The primary judge's conclusion as to contributory negligence again rested on the opinion of Professor Hebblewhite. His Honour said at [98]: "As Prof Hepplewhite [sic] opined, if Mr Davies had been exercising due caution in the environment of the underground diesel bay with which he was familiar and maintaining a firm grip on both handholds and having one of his feet on a rung, as he was aware was appropriate and necessary to maintain three points of contact, he would not have lost his grip with his right hand when his left foot slipped. Thus, if he had been descending from the top of the LHD exercising due care for his own safety, he would not have swung round and wrenched his left shoulder."
Mr Davies gave evidence that he was firmly gripping the handholds with both hands when he began to descend the ladder. It was submitted on his behalf that, even with his right hand firmly gripping the hold, the sudden slip of his left foot would have forced all of his weight onto his other points of contact causing one of his hands to lose its grip. It was further submitted that even if he "was not keeping a sufficiently secure handhold, that failure should be characterised as a misjudgement on his part, rather than negligence rendering him responsible in part for his damage".
In written submissions, Whitehaven emphasised that Mr Davies had used the ladder on previous occasions without incident. It was submitted that this indicated Mr Davies "on the occasion of his injury [did] something different and by definition something inappropriate which failed to discharge his obligation to himself and to take reasonable care for his own safety".
I do not accept that submission. Whether it is possible to execute a task without incident can hardly be the test for a safe workplace. It does not follow from the fact that a person has previously navigated a task without incident that any slip indicates carelessness. It may simply indicate greater skill and carefulness on the previous occasions. The critical task is to assess the nature of the task required in the particular case and the manner in which it was executed on the particular occasion.
That task is necessarily informed in the present case by my conclusion that the safeguards provided were not adequate. On that premise, I am not persuaded that any separate carelessness on the part of Mr Davies can be found. None was identified. The defence case rested rather on the inference that if Mr Davies fell, he must not have been gripping properly, but he said he was. The finding that he was not is based on the supposition that, when his foot slipped, he ought to have been able to resist the dynamic force of that fall and maintain hold of his entire body weight plus 15kg without losing grip. I reject that argument. In my view, Whitehaven failed to establish contributory negligence.

Orders

The primary judge entered judgment for the defendant. A costs order was entered on a later date requiring the plaintiff to pay the defendant's costs. In the event of the appeal being allowed, Mr Davies sought an order that Whitehaven pay the costs of the proceedings and of the appeal. In my view, that is the appropriate order.
For those reasons, I propose the following orders: 1. allow the appeal; 2. set aside the judgment of the primary judge entered on 30 August 2019; 3. set aside the costs order entered on 26 September 2019; 4. remit the proceedings to the primary judge to assess damages in accordance with these reasons; 5. order the respondent to pay the appellant's costs of the proceedings and the appeal.
SIMPSON AJA: I agree with McCallum JA.

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