Dempsey v AM Controls Pty Ltd; AM Controls Pty Ltd v Atlas Metal Processors Pty Ltd; Atlas Metal Processors Pty Ltd v AM Controls Pty Ltd

Judgment

1. David Dempsey was injured in an accident at his workplace, Atlas Metal Processors Pty Ltd ("Atlas") on 15 March 2010. Mr Dempsey asserts that the first defendant, Mr Blaik, an electrician from A M Controls Pty Ltd trading as AM Electrical Rydalmere ("Mr Blaik") was negligent in the way he carried out work on a machine at the premises, and that Atlas, (the second defendant) provided him with an unsafe system of work. Whilst not overtly conceded, liability between Mr Dempsey and Atlas (his employer) was not in contest. No evidence at all was called by Atlas, although contributory negligence was alleged. In contrast every aspect of Mr Dempsey's case against Mr Blaik was in issue, including contributory negligence.
2. Mr Dempsey was born in 1987. At the time of the accident, he was 22 years old. He was almost 30 at the time of trial. He sustained serious injuries to his abdomen as well as psychological injuries and sequelae and has not yet returned to work.
3. After completion of the plaintiff's evidence on liability, the parties successfully mediated a resolution of damages, so this judgment is limited to findings on liability, contribution between the defendants to the extent required and contributory negligence on the part of the plaintiff.
4. Oral evidence was led from Mr Dempsey and Mr Blaik and were both extensively cross-examined. I am of the view that both witnesses gave their accounts frankly and truthfully and in accordance with their recollections. The findings that I have made that underpin the issues of liability and causation are not based on any negative finding about the credibility or reliability of either Mr Dempsey or Mr Blaik.
5. Mr Barry QC, counsel for the plaintiff, urged me to conclude that Mr Blaik's inability to recollect a specific part of his repair process was a fabrication. I reject that submission for the reasons to which I will return during my analysis of Mr Blaik's evidence.
6. The Joint Memorandum of issues in dispute filed by the parties provides a useful identification of the issues that I need to determine: 1. Whether Mr Blaik owed the plaintiff a duty of care. If so, what was the scope and content of that duty? 2. The identification of the risk of harm within the meaning of s 5B(1) of the Civil Liability Act 2002 (NSW) ("the Act"). 3. Was the risk of harm in (2) above 1. Foreseeable (i.e. was it a risk of which Mr Blaik knew or ought to have known?); 2. Not insignificant; 3. One against which a reasonable person in Mr Blaik's position would have taken precautions (s 5D consideration). 1. If so, what precaution would a reasonable person in Mr Blaik's position have taken in response to the risk of harm? 2. If a reasonable person in Mr Blaik's position would have taken precautions against the risk of harm, was Mr Blaik's failure to take such precautions, (if such can be established), causative of Mr Dempsey's injury? 3. Did Atlas breach the duty of care that it owed to Mr Dempsey? 4. Whether any breach of duty of care of Atlas was causative of Mr Dempsey's injury. 5. Were Mr Dempsey's injuries caused by his own contributory negligence? If so, what is the extent of Mr Dempsey's contributory negligence? 6. If Mr Dempsey establishes liability against the first and second defendants, how should liability be apportioned between the first and second defendants?

Mr Dempsey's case against Mr Blaik

1. Mr Dempsey framed his case against Mr Blaik in the following way. Between 2.10 and 2.30 pm on 10 March 2010, in the course of his employment with Atlas, Mr Dempsey was assisting Mr Blaik in repairing and returning the CTL-1 machine to proper operation.
2. CTL stands for "Cut to length" and the CTL-1 is a large, multi-staged machine about 47 metres long by 5 metres wide that cuts industrial sized sheet metal into particular dimensions from large coils of sheet metal. The machine has seven separate components that are arranged in order for the processing of the metal cutting. First, the "decoiler". Second, the "processor". Third, the "crop shear". Fourth, the "leveller". Fifth, the "roll feeder" or "pinch roll" in conjunction with the "PE applicator". Sixth, the "guillotine". Seventh, the "stacker".
3. One of the experts, Professor Casey, suggested that "process line" "more aptly describes the CTL-1, because it is comprised of a number of discrete machines, all standing in line, that all perform various (but different) functions. Overall, the process line is very long, 30 metres or more." I adopt Professor Casey's description of the CTL-1 as a process line. Appended to the judgment is a diagram of the CTL-1.
4. Mr Dempsey asserts that while providing assistance to Mr Blaik, he was directed by him to do certain things as Mr Blaik carried out repairs on the electrical and electronic controls of the CTL-1 and tested its operation.
5. Mr Dempsey asserts that it was part of Atlas's work practice for people such as himself to provide assistance as required to external contractors engaged by Atlas to repair machines on the premises, including the CTL-1.
6. The content of the duty of care owed by Mr Blaik to Mr Dempsey is pleaded in the Second Further Amended Statement of Claim (2FASOC) dated 7 August 2017 as: "9. …a duty of care to the plaintiff to take reasonable care to avoid or minimise risk of injury to the plaintiff while assisting in the repair and testing of the CTL1 machine because the first defendant controlled the repair and testing procedure and the circumstances required it to coordinate the assistance given by the plaintiff by reason of the first defendant's expertise as an electrical contractor."
7. Atlas's duty of care to Mr Dempsey is pleaded in the following paragraph: "10. …a duty of care to take reasonable care to avoid or minimise the risk of injury to the plaintiff in the performance of his duties and such duty of care was non-delegable."
8. This narrative then follows: "11. On 15 March at about 2:30pm while providing assistance to Mr Blaik and while working under his direction, the plaintiff went to remove a tool bag that had been left by Mr Blaik on the large sheet of stainless steel which was in the CTL1 machine. The tool bag had been taken through a pinch roller when the material in the CTL1 had moved during the repair and testing process conducted by Mr Blaik. When the plaintiff went to remove the tool bag, the stainless sheet which had been subjected to compression loading and had bent, was released and moved forward with extreme force, hitting the plaintiff in his abdomen and pinning him against another piece of machinery called the "shear unit" and the plaintiff thereby suffered injury, loss and damage."
9. The mechanism by which the stainless steel sheet was "released" is a subject to which I will return, because a critical causative step has been omitted from the narrative provided in paragraph 11 of the 2FASOC. That step was that Mr Dempsey, of his own volition, lifted the pneumatic lever associated with the pinch roller that was located on the side of the CTL-1 thus releasing the stainless steel sheet which had been held firmly in place by the pinch roller. He then - simultaneously or very shortly after, stepped into the space between the pinch roller and the shear unit, which had been left unguarded during the metal cutting process, and it was in that space and those circumstances, that the metal moved forward, pinning him as described.
10. The risk of injury that Mr Dempsey alleges Mr Blaik should have taken steps to avoid was described as: "13. …the risk of persons, including its employees and persons assisting those employees in carrying out electrical repair work on the CTL1 machine, that one of those persons may be injured if during repair and testing the person was in the area between the pinch roller and the shear unit and sheet metal in the CTL1 machine moved forward". and that the risk of injury was foreseeable, because Mr Blaik: "14. … (was) expert in the electrical system which caused the CTL1 machine to operate and (was) familiar with the CTL1 machine prior to 15 March 2010, having previously carried out repairs on the machine."
11. The risk of injury was stated to be "not insignificant", because: "15. …the sheet metal could be subject to propulsion by the CTL1 machine to cause such movement during the repair and testing process, intentionally or unintentionally by the person carrying out the process and if this occurred, a person in the area between the pinch roller and the shear unit might suffer severe injury."
12. It is alleged that a reasonable person in the position of Mr Blaik, would have: "16. …taken precautions to prevent persons in the vicinity of CTL1 machine being exposed to the risk of injury referred to above by making sure any such person did not go into the area between the pinch roll and the shear unit while the repair and testing process took place."
13. The language used in the 2FASOC is not reflective of the language of s 5B of the Act - i.e. "risk of harm". Only the term "risk of injury" is used however the context of its use in paragraph [13] of the 2FASOC does seem to be an attempt to identify the "risk of harm" as required by s 5B of the Act.
14. Mr Dempsey pleaded his case, in terms of content of the duty of care of Mr Blaik and foreseeable "risk of injury", with a significant degree of hindsight, attempting to shape the nature and content of Mr Blaik's duty of care to manufacture responsibility for what occurred, rather than objectively characterising the content of the duty, arising from the relationship created between Mr Dempsey and Mr Blaik in the circumstances pertaining to Mr Blaik's presence and activities at Atlas that day.
15. Causation is pleaded (inadequately given the requirements of s 5D of the Act), in paragraph 12 of the 2FASOC as follows: "12. The said injury, loss and damage were caused by the negligence of the first defendant and/or Atlas by themselves and/or by their servants and agents."
16. The particulars of negligence of Mr Blaik were pleaded in the initial statement of claim filed on 10 March 2013 as follows: "17 a) Failed to carry out a risk assessment of the work that had to be carried and in particular failed to identify the risk of injury as referred to above. b) Failed to warn and direct the plaintiff not to go into the area between the pinch roller and the shear unit while the repair and testing of the CTL1 machine was being carried out. c) Failed to direct the plaintiff to stand clear when test procedures where [sic] commenced and until it could be ascertained that the CTL1 machine was safe and operating normally. d) Failed to devise and put in place a safe method for carrying out the repair work. e) Failed to instruct the plaintiff as to the manner in which he could safely assist in carrying out the repair work. f) Tested the machine when it was not safe to do so. g) Carried out the repair and testing of the machine in an unsafe manner. h) Failed to ensure the CTL1 machine was completely isolated from electrical power while repairs were being carried on and that all persons were clear of dangerous parts of the machine when power was restored for the purpose of testing. i) Left a tool bag on material in machine, thereby creating a situation which caused the plaintiff to go into the area between the pinch roller and the shear unit.
17. In an amended statement of claim filed in September 2015 particulars (j), (k) and (l) and (m) were added (as well as adding Atlas to the proceedings): "j) Caused the CTL1 machine to operate in reverse and thereby caused the stainless steel sheet to be subjected to forces which potentially created a situation whereby if released it would spring forward with great force. k) Failed to warn the plaintiff that the steel sheet had been bent and subjected to compression forces and was therefore potentially dangerous. l) Failed to warn the plaintiff that by releasing the pinch roller the steel sheet was likely to be forcefully ejected from the CTL1 machine. m) Failed to direct the plaintiff not to release the pinch roller because of the potential dangers as referred to above."
18. In a further amended statement of claim filed on 16 May 2017 particulars (n), (o), (p) and (q) were added: "n) Failed to develop and implement a work plan for the repair that was methodical and safe. o) Failed to carry out inspection, testing and repair work properly in that a wire or wires on the encoder board and/or encoder for the drive unit of the pinch bar rollers; i) were not checked to make sure they were properly connect [sic] and not loose; and/or ii) were disconnected and not properly reconnected by Marcus Blaik. p) Commenced and continued the inspection, testing and repair of the CTL1 machine when the sheet material remained in the machine under the pinch roller. q) Failed to remove the sheet material from the machine or alternatively failed to request that the sheet material be removed so that inspect [sic], testing and repair of the CTL1 machine could be carried out."

Mr Blaik's Defence

1. Mr Blaik denied that he owed a duty of care of the content and scope alleged in paragraph 9 of the 2FASOC, and denied that he had been negligent at all.
2. Initially, senior counsel for Mr Blaik, Mr Cavanagh SC submitted that in the circumstances, Mr Blaik did not owe any duty of care at all to Mr Dempsey. That position was modified early in the trial to acknowledge that Mr Blaik had a duty to take reasonable care to avoid injury to others while carrying out repairs to the CTL-1.
3. Mr Blaik denied that he owed Mr Dempsey a duty to direct, instruct, supervise or control him in the performance of his work, or to prevent him from operating any part of the CTL-1.
4. Mr Blaik pleaded contributory negligence, directed to Mr Dempsey's failures to seek instruction from him before entering the area in question, for "flicking the pinch roll pneumatic switch" (thus lifting the roller from the sheet metal), and failing to take reasonable care for his own safety.
5. Mr Blaik pleaded that ss 5B(1) and (2), 5C and 5D of the Act operate to defeat Mr Dempsey's claim. He pleaded that Mr Dempsey's lifting of the pneumatic lever on the pinch roll, whilst moving in front of that pinch roll and shear unit, was an obvious risk as defined in s 5F of the Act and by operation of s 5H, no relevant duty of care to warn existed.
6. In answer to the whole of Mr Dempsey's claim, Mr Blaik pleaded s 5O of the Act that his acts were consistent with proper professional practice.
7. For the reasons that follow, I have concluded that Mr Dempsey's claim against Mr Blaik falls at the s 5B hurdle, and that Mr Blaik bears no liability to Mr Dempsey.

Mr Dempsey's case against Atlas

1. Mr Dempsey was employed as a machine operator, mainly operating the CTL-1 at Atlas's factory.
2. The duty of care pleaded against Atlas is a duty of care to take reasonable care.
3. The particulars of negligence of Atlas are set out in paragraph 18 of the 2FASOC: "a) Failing to provide the plaintiff with a safe system of work. b) Failed to properly train the plaintiff in relation to the assistance he might provide to contractors. c) Failed to direct the plaintiff to not to enter the area between [sic]. d) Required the plaintiff to assist in the repair of the CTL1 machine when the plaintiff was not trained to do so. e) Permitted the plaintiff to assist in the repair of the CTL1 machine when the plaintiff was not trained to do so. f) Failed to take any or any reasonable steps to install a guard or barrier between the shear unit and the roll feeder. g) Permitted the CTL1 machine to be operated without the existence of a guard or barrier between the guillotine and the roll feeder. h) Failed to take any or any reasonable steps to re-locate the roll feeder operating handle to the CTL1 machine's operator control panel. i) Permitted the CTL1 machine to be operated without the roll feeder operating handle having been relocated to the CTL1 machine's operator control panel. j) Failed to warn the plaintiff of the risk that the steel sheet had been bent and compression loaded by reason of the CTL1 machine having operated in reverse. k) Failed to warn the plaintiff of the likelihood that releasing the pinch roller would cause the steel sheet to forcefully eject from the CTL1 machine. l) Failed to warn the plaintiff not to release the pinch roller. m) Failed to undertake any or any proper risk assessment in relation to the ' plaintiff's involvement in the repair of the CTL1 machine. n) Failed to undertake any or any proper risk assessment in relation to the repair of the CTL1 machine. o) Failed to identify the risks associated with the repair of the CTL1 machine and the plaintiff's involvement in the repair of the CTL1 machine. p) Breached its statutory duties pursuant to ss 8 and 10 of the Occupational Health and Safety Act 2000 (NSW) as evidence of negligence. q) Breached its statutory obligations pursuant to rr 9 - 14, 16, 136A and 137 of the Occupational Health and Safety Regulation 2001 (NSW) as evidence of negligence."
4. The only Defence filed on behalf of Atlas was to the Amended Statement of claim and is dated 30 September 2015. The response to the allegation of the content of Atlas's duty of care to Mr Dempsy was simply to state that the duty pleaded is a "statement of law". The Defence did not admit paragraph 11 that sets out the narrative of the injury to Mr Dempsey. Negligence is denied and contributory negligence is alleged on the bases that the plaintiff failed to keep a proper lookout, failed to seek instructions and acted without instructions.
5. It is common ground that the Act has no application to Mr Dempsey's case against Atlas as a result of the effect of s 3B(1)(f) of the Act and s 151E(1) of the Workers Compensation Act 1987 (NSW): South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 at [115] per Basten JA, Macfarlan and Simpson JJA agreeing. The negligence of Atlas falls to be determined in accordance with the common law principles set out in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 and Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 per Hayne J at [276] (citing Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J): "The common law imposes a duty on the employer because the employer is in a position to direct another to go in harm's way and to do so in circumstances over which that employer can exercise control. The duty is, of course, not absolute; it is the duty 'of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury'."
6. For the reasons I set out later in this judgment, I have concluded that Atlas breached its duty of care to Mr Dempsey in respect of almost every particular of negligence alleged against it. The reports of Mr David Cockbain, engineer, dated 21 October 2014 and 30 July 2015 commissioned by the plaintiff set out in detail, unchallenged except in one minor respect, an analysis of the conduct and failures by Atlas that caused or materially contributed to the harm to Mr Dempsey.

Factual Background

1. Mr Dempsey left school in the middle of Year 12 in 2005 and did not obtain his Higher School Certificate. On leaving school, he worked casually for about a year as a forklift driver and machine operator in a metal processing factory in South Australia. He then worked for a month on an assembly line at Holden and then moved to Sydney, working at a steel fabrication company for three months.
2. In 2007 Mr Dempsey commenced work as a machine operator with Atlas. He worked 2pm to 10pm Monday to Friday. At the commencement of his employment, he says that he received a general safety induction which included being instructed on the use of safety equipment such as helmets, gloves and safety glasses which he was required to wear when operating the cutting machine as well as some training on how to use the CTL-1 by another machine operator, Ben Condron.
3. He described his duties as to flatten and cut sheets of stainless steel using the CTL-1. This involved sometimes manual lifting of stainless steel sheets.
4. He said that he worked in that position on a full-time basis until the beginning of 2008 when he was made redundant with some other workers. That appears to have been a period of about nine months according to instructions provided to Mr Cockbain. There was a period of unemployment of about 18 months before he was re-employed by Atlas in the same position in about November 2009. He described this employment as initially casual, although the hours and days worked have not been the subject of evidence. He then obtained a permanent position in February 2010.
5. Mr Dempsey said he was given training in relation to general safety matters similar to what he had received before, and that Mr Condron was still the senior operator and team leader for the shift. He was given a brief refresher by Mr Condron during the first half of his shift, and then was left to operate it alone.
6. Mr Dempsey described that it was part of his job to lift the pinch bar at the end of the bed that runs from the leveller after a job had been completed. The pinch bar has a role in circumstances where there was a plastic film on the surface of the sheet metal, but in other jobs the pinch bar is only needed to be down for the tail piece from the coil because it was the means by which the tail piece could be moved along the bed from the leveller. Mr Dempsey described the pinch bar as a lever which he could put up or down and that he used it a few times each day. Why the pinch bar was in the down position before its release by Mr Dempsey on this day was not the subject of any evidence. (It is common ground that "pinch bar" is another name for the "pinch roller").
7. The CTL-1 would break down from time to time and contractors would be required to come and repair it. Sometimes other employees from Atlas would carry out repairs if it was something simple, but he had never done so.
8. If there were electrical problems, Mr Blaik from AM Electrical would be contacted and attend. Mr Blaik came about once a month or every two months to do electrical repairs.
9. Mr Dempsey said that he had been instructed by Mr Condron to assist any contractor who came to do work on the CTL-1, and this sometimes included Mr Blaik. Sometimes Mr Condron also assisted. Mr Dempsey described his role as doing what the contractors asked him to do, which mostly involved operating controls on the machine and occasionally lifting things for contractors and doing simple tasks to assist.
10. He says that he had been told by Mr Condron not to do anything which involved work on the electrical parts of the machine. He described assisting Mr Blaik by operating controls on the machine and moving things out of the way such as timber that may have been left near an electrical cabinet.
11. Atlas called no oral evidence regarding training or supervision, so the only evidence on this matter is Mr Dempsey's and some information in a statement Mr Condron made for investigators that was tendered by the plaintiff. In his statement Mr Condron said that he was team leader at the time of this accident and had been in that position for about four years. Prior to that he worked as a machine operator for about three years. He trained Mr Dempsey in the operation of the CTL-1 and Mr Dempsey had operated it without any problems when he was first employed in 2008. When Mr Dempsey was re-employed in November 2009, Mr Condron trained him again. There was no set training document or training period for the CTL-1. It was on the job training. Mr Dempsey responded well to the training and satisfactorily operated the machine. Mr Condron did not witness the incident, although he assisted in retrieving Mr Dempsey from the machine.
12. Mr Condron stated that at the time of the accident there was no "safe operating procedures" attached to the CTL-1 or any set procedures about the operator's role when repair persons attend the site to carry out repairs on the CTL-1, however, it was practice for the operator to remain at the machine to provide information to the repair person about the faults to be repaired.

Mr Dempsey's account of the circumstances of the accident

1. Mr Dempsey arrived at work at the normal time (1.30pm) and was told by the day shift operator Phil Tasker (who was not called to give evidence) that the machine was "down" and they were waiting for Mr Blaik to arrive to fix it.
2. Mr Dempsey said that when Mr Blaik arrived, Mr Blaik asked him to check all the "e‑stops" (emergency stops). He also asked Mr Dempsey to check the machine reset, start-up and light curtains. The machine would not start, and Mr Blaik went to the electrical control cabinets which were situated on the other side of the CTL-1 from the operating control panels. Mr Dempsey's perception was that Mr Blaik was trying various things to see if he could fix what was wrong and that he seemed to be having problems finding out what was wrong. Mr Dempsey was twice asked by Mr Blaik to go to the operator's control panels (on the other side of the CTL-1 from where Mr Blaik was working), to press the reset button.
3. After pressing the reset button for the second time, Mr Dempsey says he walked over to near the electrical control cabinets where Mr Blaik was working. At this point, Mark Vincer, who was the General Manager, came down and stood with Mr Blaik. After a while Mr Dempsey volunteered to go over to the operator's controls again so Mr Blaik could call out when he wanted Mr Dempsey to press the reset button. Mr Dempsey says that whilst he was walking over to near the operator control station, but he had not yet activated anything, Mr Blaik and Mr Vincer called out and the machine was running in reverse. He did not know how that could be because he had not yet pushed the reset button. He then, over the noise of the factory, concluded that Mr Blaik must have called out "hit the e-stop", so he hit the e-stop.
4. Mr Dempsey observed that the machine had pulled the sheet metal backwards through the pinch roller. This is something he had never seen before. He also saw Mr Blaik's tool bag had gone through the pinch roller. He describes taking the following steps: "I then moved to the machine to get Marcus's tool bag out of the pinch roller and as I stepped into the machine area, I raised the pinch roller using the lever that operates the pneumatic valve attached to the machine. When the pinch roller came up off the sheet metal, the sheet metal in the machine came forward very quickly towards me and pinned me against the guillotine. I put my hands out to stop the material coming towards me but I could not stop it and the edge of the guillotine pinned be against the part of the guillotine called the shear entry. I was instantly in a lot of pain and felt that I was in and out of consciousness and seemed to black out a number of times."
5. He describes being assisted out of the machine and collapsing and being rushed to Nepean Hospital by ambulance.
6. Mr Dempsey gave some short oral evidence to augment matters covered in his tendered statements. He says that he observed Mr Blaik to be unplugging and plugging in various parts inside the cabinet. At his senior counsel's request, Mr Dempsey circled particular wiring on a photograph (Exhibit A34) that he identified as the particular wiring that he observed Mr Blaik to be working on for a length of time.
7. Mr Dempsey also gave evidence that on his understanding, the only way to move the steel sheets in reverse is to operate it by individual switches or toggles.
8. Mr Dempsey was asked to articulate the sequence of events that led to his injury and did so as follows: [1] "A …I heard and saw the machine start up again, I noticed the bed that was in front of the guillotine started running but in reverse. I walked up to the main console, hit the e-stop. I walked past to see Mark Vincer and Marcus Blaik. I noticed his tool bag was in the machine under the pinch roller. I went in to get his tool bag. Q As you went in to get the tool bag, did you do something? A I flicked the switch for the pinch roller up. Q What did that do to the roller? A It released the pressure. Q What happened then? A It raised Q What happened then? A A sheet of metal came out and hit me in the stomach."
9. In cross-examination Mr Dempsey said that he had never been told that he should not walk between the pinch roller and the guillotine either in his induction process or at any time. He stated that it was common practice to go in there and get the "tail end of coils."
10. Mr Dempsey agreed that he had no expertise or training as to what Mr Blaik was doing inside the electrical cabinets and agreed that it would be fair to say that he did not know what Mr Blaik was doing, despite standing near him when he was doing it.
11. Mr Dempsey insisted that the CTL-1 started up before he hit the reset button. He did not know why that happened, nor did he know why the machine ran backwards instead of forwards at that point.
12. It was specifically put to him that he had pressed the reset button and the machine then ran in reverse. He disagreed with that. He agreed that he pressed the e-stop at the request of Mr Blaik and Mr Vincer when he heard them yell out to him.
13. Mr Dempsey said that he did not look at the metal in the other side of the CTL-1 and thus did not see, as shown in photographs tendered, that the metal had bowed, stating that before he released the lever, he did not look at the metal sheet because "he felt he had no reason to", despite knowing that the metal had passed backwards at least partway through the pinch roller.
14. He conceded that "possibly" he should have looked to see the position of the sheet metal on the other side of the roller. He acknowledged that he knew the sheet metal was held in the pinch roller, but when asked whether he knew by flicking the pneumatic lever he would release whatever tension was on the sheet metal, rather than addressing the question directly, he answered "But I had no reason to believe there was any tension on it at all." [2]
15. Mr Dempsey acknowledged that he "flicked open" the pinch roller. When asked, "Do you think you might have given a bit more thought as to what could possibly have happened, bearing in mind this machine was malfunctioning before releasing the pneumatic lever?", Mr Dempsey answered, "it hadn't crossed my mind". It was put to him that he knew, as he put himself in the position in the gap where the sheet metal had been, that if the sheet metal was to come forward, it would be coming forward into the area where he was and Mr Dempsey answered, "I had no reason to think it would come forward".
16. Mr Dempsey insisted that going into that gap area was an everyday occurrence, because you have to get in there to push the metal onto the bed or to remove smaller scraps. Mr Dempsey agreed that after his accident, Atlas changed the position of the pneumatic lever by moving it away from the CTL-1 equipment onto the control console some distance away. Atlas also put in place a guard around the area where the gap was, apparently to prevent people such as the machine operator walking into the area.
17. In answer to some questions asked by counsel for Atlas Mr Rickard, Mr Dempsey explained that: "the pinch roller was the last actual driving force in the machine. Once the metal had come out the other side of the pinch roll, there was no longer anything pushing it forward, so you would have to manually push the last bit of the sheet, which would be about half a metre to a metre long, through the guillotine." [3] He said that there was no risk associated with doing that, and that it was commonly done by him and by other operators of the machine (and their offsiders) on a daily basis.

Mr Vincer

1. Mr Vincer had worked at Atlas since July 2003. He was not called to give evidence despite being present at the time of the accident. He was interviewed by the WorkCover inspector on 16 March 2010. A handwritten record of what he told the inspector was tendered by the plaintiff: "At approximately at 9am the operator in charge of CTL1 on day shift informed me that the pinch roll was not working. There is only one pinch roll on CTL1. I investigated and found the fault indication on the drive control unit for the pinch roll. I reset the drive unit however the fault indication remained. I then called the contract electrician A.M. Electrical to investigate & rectify the fault. There was no further activity on CTL1 on day shift due to waiting on electrician. The electrician, Marcus Blaike [sic], arrived on site at 14:10 and began investigations. He eventually determined there was blown fuse on the pinch roll drive unit. He replaced the fuse, enabled the main power supply and directed the afternoon shift operator, David Dempsey, to reset the CTL1 control at the main control [sic] consol [sic] with the machine in manual mode. David reset the machine as requested and the pinch roll commenced to move the material on the CTL1 in the reverse direction. The electrician directed David to hit the emergency stop located on the main control console which he did. This brought the line to a halt. The movement of the material in the reverse direction had created 2 events. One, there was now a gap between the pinch roll unit and the shear unit and two, the electrician small tool bag, which had been sitting on top of the material had been taken through the punch roll with the material. The material is 6mm x 2 metre 304 stainless steel. The next thing that happened was that David simultaneously operated the pneumatic control valve adjacent to the pinch roll and stepped into the gap as referred in event one. The pneumatic valve raises the pinch roll which releases its hold on the material. The purpose of the pinch roll is to drive the tail end of the coil being processed through to the shear for cutting. Once the material has exited the leveller David had stepped into the gap and the metal came forward and pinned him against the shear entry frame."
2. Mr Vincer then described the action taken to release Mr Dempsey from the CTL-1, and then stated: "Looking at the material on the line I could see some residual bow which indicated to me that the material had moved forward into the gap due to stored energy created when the material had been reversed due to the material coming into contact with the exit side of the leveller and bowing upwards. The machine was locked down at the main supply with the key held by myself pending completion of full investigation."
3. Mr Vincer was asked what caused the machine to run in a reverse direction. He said: "I have been advised by the electrician that there was a loose wire in the pinch roll encoder feed back to the drive unit and that this caused the encoder to be searching for its reset position. This loose wire was repaired and the unit tested by the electrician and myself. There was no further movement or fault detected. The machine was again locked down."

Mr Blaik's account of the circumstances of the accident

1. Mr Blaik was the person at A M Controls Pty Ltd who would attend to service and breakdown calls at Atlas. In the statement he provided to the WorkCover inspector on 23 March 2010, he set out what occurred. I have included the relevant parts of the statement verbatim because the detail is important in light of the (unsuccessful) attack made by Mr Barry QC upon Mr Blaik's recollection and credibility: "At approximately 2pm, Mark Vincer rang Mr Blaik and said the drive display had a fault on it on CTL1 machine pinch roll drive unit at Atlas site Production Avenue Warragamba. Arrived on site, sign in, seen Phil Brown. Filled in appropriate paperwork. Put on PPE. Met Mark Vincer at CTL1 with David the operator. Spoke with them to find the problem. I also had one of my partners with me, Wayne James. Wayne did not witness the accident. He was outside. The pinch roll drive unit display indicated a loss of encoder fault. I do not remember the exact wording. I turned off the main switch to isolate the machine. I checked the encoder coupling and that seemed okay. I disconnected the encoder card, removed another encoder card from another drive unit and swapped them over. I turned on the main switch, the operator David (Mr Dempsey) was at the main operator's station and I requested he reset the machine. The machine was reset, applying power to the pinch roll drive unit. Pinch roll drive unit still displayed fault. The fault was the same. I tried to reset the fault on the pinch roll drive unit operator panel. The drive unit is located in the machine control cabinets. The cabinets are located on the drive side of the CTL1 machine. This is the opposite side of the line to the operator's station. I powered the CTL1 machine down so that it was isolated. I sprayed the pinch roll encoder drive card that I had removed [illegible] with contact cleaner, checked it was dry and changed it back to its original position, having reconnected it. I powered the line up to see if it rectified the problem but it didn't. I checked that I had powered the encoder card and still had the same display fault on the pinch roll drive unit. I unplugged the plug on the encoder mounted on the rear of the pinch roll drive motor and connected it to a spare encoder and tried to reset the drive unit of the pinch roll drive unit operator panel. I pushed reset and there was no movement. I isolated the machine and tested fuses on the drive unit. The output fuse for the armature of the pinch roll motor was blown. I replaced the fuse and reconnected the encoder mounted on the read of the pinch roll motor. I've turned on the main switch and asked the operator David to reset the line applying power to the drive unit. The drive unit powered up and the pinch roll motor started to rotate moving the sheet of material in the line backwards through the pinch roller. I don't know if the machine was in manual or automatic when the machine moved. I then yelled at David the operator to hit the emergency stop button. David hit the emergency stop button and the machine stopped and power was removed from the drive unit. I then moved walked towards the pinch roller and had some screwdrivers sitting on the sheet of metal as I wasn't expecting movement. They had gone with the sheet through the pinch roll. I cannot remember if I isolated the machine or not but I believe I did. A gap had now been created between the pinch roll and the guillotine. David walked towards Mark Vincer and myself and attempted to pass through the gap now created by the backward movement of the pinch roll motor. As David entered the gap, he flicked the pneumatic lever controlling the operation of the pinch roll. The pinch roll then moved up, releasing the material which moved forwards towards the guillotine closing the gap and pinning David against the guillotine unit. I then stepped back and found a piece of wood to assist getting David out of the machine. After the ambulance had taken David away, Mark Vincer requested I try to find the source of the fault. I rechecked the connection on the encoder drive board and found a faulty connection. I re-terminated that connection, made sure the pinch roll was open, checked the line was clear of personnel and turned on the main switch. I then requested the operator, I can't remember who operated, to reset the line and at the same time had one hand ready to press the e-stop button. When the line was reset there was no movement and the drive display on the pinch roll drive unit, I don't know the exact wording of the display, I think it was Speed Reference 0. We then manually jogged the pinch roll in forward and reverse. All machine movement was done by operator."
2. A further statement was prepared by Mr Blaik dated 18 July 2016. It was in substantially the same form as the WorkCover statement with some expansion. Mr Blaik stated that his role was limited to identifying and attempting to repair the fault. The machine was operated by the machine operator from the control panel on the operator's side which is the opposite side from where he was working in the electrical cabinets.
3. Mr Blaik observed that pressing the reset button should not and generally does not cause any part of the machine to move or operate, and so he did not expect the pinch roll unit to operate in reverse.
4. He did not ask Mr Dempsey to move anywhere or check anything. Mr Dempsey of his own volition walked into the gap created by the retraction of the sheet metal and released the pneumatic lever without any warning.
5. Mr Blaik's May 2017 statement provided more details as to the fault finding and repair process he performed in relation to the encoder card which was a focus of Professor Fletcher's report and the additional particulars of negligence added in the further amended statement of claim filed on 16 May 2017.
6. Mr Blaik said that in order to replace the encoder card, he had to disconnect the wires at the top of the encoder card and then pull out the plug at the bottom of the encoder card. In order to put another encoder card in, he had to reconnect the wires at the top of the encoder card and place the plug back in. In order to remove the replacement encoder card and put back the old encoder card, he had to go through the same process again. He also described finding and re-terminating a faulty connection on the encoder drive board (also known as the encoder card) after the accident. He explains that he did not, in his statement to the WorkCover inspector in March 2013, refer to the precise position of the loose connection and could not then (in May 2017) recall where it was: "6 …The loose connection could only have been in two places, being some connection in the plug at the bottom of the encoder card or in one of the wires used to connect the top of the encoder card. The loose connection that I discovered after the accident could not have been at the top of the encoder card, because even if there was a loose connection at the top before I started to change the encoder card, those wires were completely disconnected and reconnected on two occasions in the course of my work prior to the accident and the encoder fault was still showing. 7 It thus seems logical to me that the loose connection must have been part of the plug. I was not aware of any loose connection prior to the plaintiff's accident. I did not observe any loose connection during my replacement of the encoder card. It did not occur to me that the fault could have arisen from a loose connection in the plug at any time until I observed the pinch roller malfunction and operate in reverse. In all the years that I have been undertaking repair work on this type of machine before the accident, I had not experienced or been aware of such a loose connection in the plug. Once I observed the machine operated the way it did immediately before the plaintiff's accident, I was provided with information which allowed me to further consider the reason for the encoder fault. Until that occurred, it was a matter of trying to identify the reason for the encoder fault through a process of elimination. I do not agree that I failed to adopt proper practices and procedures. The only way to determine the nature of the fault was firstly to undertake the obvious tasks such as replacing a fuse and turning the power back on to check, or replacing the encoder card and turning the power back on to check. 8 As far as I am aware, I did not cause any connection to become loose during the course of my work. Similarly, I was not aware and did not anticipate that any connection would be loose until the movement of the pinch roller in reverse provided an indication to me as to what may have been the source of the problem."
7. Despite lengthy cross-examination by Mr Barry QC challenging his methodology, recollection and professional practice, Mr Blaik's position remained consistent and credible. I found Mr Blaik to be a truthful, considered and credible witness.
8. On the issue of the leaving of his tool bag on the sheet of metal in the CTL-1, the following answers were given: [4] "Q Did you forget that you'd left equipment on the machine itself when you were doing the work? A No, I placed it there. I didn't believe the material would move because I was only in a state of testing." And further: [5] "Q Do you accept that if you leave equipment on the machine and the machine starts to move then somebody might try and save your equipment if they see it to be in danger? A It is always possible someone could do that."
9. In cross-examination Mr Blaik gave evidence regarding how it came to be that he did not initially see the loose connection that was ultimately what needed to be fixed to make the CTL-1 run correctly. It was put to him that there are about eight connections between the encoder and the drive unit. He explained there were significantly more: [6] "There's a point of connection where the encoder card attaches with a series of wires to the drive card; there is a point of connection where the plug goes onto the encoder card; there is a point of connection where the wires go into the plug on the encoder card; there is also a point of connection in the encoder plug out in the..[not transcribable]..there's a point of connection between the plug and encoder; and there is also a point of connection inside the encoder where it goes to the various parts of the encoder."
10. Mr Blaik was asked whether he knew how he could deliberately make the CTL-1 pinch rollers run in reverse. Mr Blaik explained you would have to bring out the input to make the drive run in reverse and that would involve modifying wires on the actual inputs or it would require programming the drive.
11. He thought the reason why it ran in reverse as soon as power was supplied to the drive unit on this occasion was: [7] "The motor - the DC motor replies on - relies on feedback from the encoder to know where it sits, so to know its positioning. Whether it gets positive or where it thinks that encoder sits will tell it which direction to do, so in theory a loose connection on that encoder could make the drive either run forward or reverse because it lost its reference to find its home location and the drive operated to find that on the encoder."
12. It was directly put to Mr Blaik that the other possibility is that he connected the machine up in such a way as to cause it to run in reverse. Mr Blaik candidly replied that that was a possibility, but that he does not believe that he did. [8]
13. Mr Blaik's evidence is consistent with the experts' view expressed in their joint report dated 13 June 2017 that it is "possible" that he introduced a wiring error that caused the process line to operate in reverse. This, of course, is not sufficient to make a finding that what he did, on the balance of probabilities, introduced that wiring error or fault, and I make no such finding.
14. Mr Blaik was cross-examined about the order in which he undertook the repairs. He explained that he did not check the fuse first because the "Troubleshooting" section of the manual for that make of drive said that whenever the display says "encoder fault", he should check the encoder. Mr Blaik explained that faulty connection in terms of what he found (and explained to the WorkCover inspector he had at the time found), can include a connection that is not making proper contact and therefore a loose connection. [9]
15. Mr Blaik was unable to identify whether the faulty or loose connection that he ultimately repaired (after the accident) was one of the connections that he necessarily must have disconnected in the course of his earlier investigation of the problem.
16. In terms of respective tasks during the repair and testing operation, Mr Blaik stated that he needed a machine operator to operate the machine because he does not operate machines, [10] and that Mr Dempsey, rather than assisting him, was operating the machine to see if it was operating correctly in that he was pressing "reset" on the machine and turning the machine on as machine operator. [11]
17. Mr Blaik's recollection was that he probably asked Mr Dempsey to reset the machine in excess of six times. His recollection is that the machine began to operate in reverse only after the reset button was pressed for the last time by Mr Dempsey. Mr Blaik explained: "As I have stated, the only way the drive unit gets power is by the reset button being pressed and the reset button is on the operator's side of the machine on the operator panel and is operated by the operator."
18. Mr Dempsey denied pressing the reset button. Given the explanation of the normal expected operation of the machine, it is in my view possible that Mr Dempsey pressed the reset button prior to the pinch roller moving the metal sheet in reverse and that his recollection about that is mistaken. However I do not need to make a concluded finding about that because on any analysis, the CTL-1 was malfunctioning, operating in a way that was not usual, and I should analyse respective obligations and duties according to those circumstances.
19. In terms of Mr Blaik's understanding of the pneumatic lever which raises and lowers the pinch roller, he was unable to say whether the lever in the up position means that the rollers would not be in contact with the metal. In this respect, he stated that it depends how the valve is configured, adding "I don't operate that valve so I don't know the operation of that valve".
20. There seemed to have been a premise or assumption in many of the questions asked in cross-examination by Mr Barry QC that somehow it was Mr Blaik's responsibility to ensure the pinch roller was not in contact with the metal by removing the sheet of metal from the machine. The trouble with this approach is that the operation of the pneumatic aspect of the machine is something entirely within the province of Mr Dempsey who was, at all material times, the machine operator. If anyone should have lifted the pinch roller from the metal or been aware of the potential risks of the way the sheet of metal might behave in the CTL-1, it was Mr Dempsey or Mr Vincer or other Atlas employees, not Mr Blaik. Mr Vincer was present and aware that the machine had a fault and stood by as various things were done. He took no action whatsoever despite his senior role at the company, and his years of experience, to remove the metal or suggest any action be taken in respect of its removal.
21. Mr Cockbain and Professor Fletcher were initially critical of Mr Blaik not requesting the removal of the metal sheet however it was put to Mr Blaik by counsel for Atlas that he was told by Atlas employees that the metal was stuck and could not be removed. Mr Blaik did not recall this and no evidence was called by Atlas, however I am proceeding on the basis that must have been the case or counsel for Atlas would not have put it to Mr Blaik.
22. Mr Cockbain clarified in his evidence that his report was directed at Atlas's failures. Professor Fletcher and Mr Casey both directly criticised Atlas for not taking steps to remove the metal or make it safe.
23. A significant part of the cross-examination of Mr Blaik by Mr Barry QC was directed to blaming Mr Blaik for the CTL-1's reverse operation. This approach appeared to have proceeded, at least in part, on a misunderstanding of the two-step process that was required for the metal in the CTL-1 to move material within it, and what occurred at the time the metal (and tool bag placed upon it) moved unexpectedly: [12] "Q. You said your evidence yesterday that on 6 occasions you asked Mr Dempsey to restart the machine. A. To reset the machine. Q. Is there a difference between resetting the machine and restarting the machine? A. Yes. Q. What's the difference? A. When you reset the machine, it applies power to the drive units and it is in a ready state prior to the operator telling the machine to start, so telling the machine to move, so that puts it in a state of readiness prior to movement. Q. Then what's the next stage to actually get it moving? A. The operator operates the machine to make it move. Q. By doing what? A. I believe they press the start button. Q. So it's a two step process to actually get the rollers moving, is that right? A. At least a two step process. They could also put the machine into automatic mode and press start button. They also have the ability to jog the machine and also jog drives individually. Q. If the machine was in a situation where it could cause injury to persons or damage to property, it shouldn't have been put in a condition where it was started, should it? A. Can you please rephrase that? Q. I'm putting to you that if the equipment was in a position where it could cause damage to persons, damage to property or injury to persons, it should not have been started. A. No, it should not have been started. Q. It was you that was in charge of the directions as to whether or not to start the machine, wasn't it? A. The machine was not started. The machine was put into a state of ready for the fault to be observed on the drive unit. Without putting the machine in a state of ready by pressing the reset button, the fault could not be observed and no fault finding could be carried out." (Emphasis added).
24. This evidence is critical to the issues of Mr Blaik's breach of duty and foreseeability of the risk of harm, subjects to which I will return. It is Mr Blaik's case that he was not negligent in leaving his tool belt on the metal sheet because the metal should not move because the CTL-1 was only placed into testing mode not the operational mode.
25. Mr Blaik explained that the LCD screen which provided information about the status of the fault would not have been able to be read by him until the power was supplied to the CTL-1 at the main switch followed by the reset button being pressed, which is how power was applied to the drive unit. [13]
26. In respect of the allegation of negligence that Mr Blaik had an obligation to find and use a G-clamp (a large metal clamp), Mr Blaik responded that he did not know where such a clamp ought to be put and that he would not assume that the metal could be clamped so it would not move during the investigation and repair work because: [14] "You'd really need to work out the physics associated with where you're placing the clamp. You'd also need to work out the physics associated with the force applied to the metal and you'd need to know the physical properties of the metal to see if that would actually be effective in what you were proposing to do, and you're also doing something that is not to the manufacturer's specification on the machine, so therefore you're modifying the machine contrary to the manufacturer's specification."
27. Mr Blaik was cross-examined as to why he proceeded to look at the fuses, as opposed to checking the connections to the encoder card. He acknowledged that whilst he could have checked the connections to the encoder card first, if he had he would not necessarily have found the fault that was ultimately found because: [15] "…the encoder would not have received any feedback because the motor would not have tried to be - would not have been energised through the armature fuse, so therefore the encoder wouldn't have had any point of reference still so therefore the encoder still would have read the same fault, I believe. Q. That was because the fuse was still blown? A. Yes."
28. I accept that Mr Blaik does not recall precisely in what order he did things after the accident and which connection was loose or faulty. I consider Mr Blaik to have been an honest, forthcoming and truthful witness. I do not find it at all surprising, or worthy of comment, in circumstances where Mr Blaik was requested to return to the machine after Mr Dempsey's accident to try and fix the fault that had initially led to him being called out, that he cannot recall precisely which connection had the fault.
29. First, I accept the following evidence: [16] "A. I don't recall exactly what I did. I believe I was probably in a slight state of shock at that time. All I know is I've stated that - what I found. That's - I can't tell my exact movements then because I do not recall them. Q. It would make sense, wouldn't it, that you would have gone straight to the wiring because that was the only thing that you didn't check before the accident? A. I, I know that I - when I did check the wiring I found that fault. That's. Q. My question is did you look at anything else other than the wiring after the accident? A. I, I don't know. Q. Do you mean you don't remember? A. I do mean I don't remember. Q. You're not saying you don't remember because you don't want to disclose the fact that that is the first thing you looked for when you went back? A. I honestly do not remember. It may have been the first thing I looked at but I can't say conclusively and without any doubt in my mind the first thing I went to was that."
30. Second, this issue first arose only after the service of Professor Fletcher's report and the pleading amendment to the statement of claim in 2017, some seven years after the accident and four years after proceedings had commenced.
31. Mr Blaik provided a plausible explanation stemming from the function of the machine as he understood it, as to why, in his view, the metal went backwards when the machine was turned on (set out in [80] of this judgment).
32. The "logic" asserted by Mr Barry QC that simply because Mr Blaik plugged and unplugged some encoder cards, that of necessity he must have introduced a fault or that he had a causal role in the CTL-1 running the metal sheet backwards was not supported by "logic", (even if "logic" had a decisive role to play), was not supported by anything Mr Blaik said, and was not supported by any of the experts' individual or joint analyses: [17] "Q. If it be the case that the machine had not operated in such a way for the pinch roller to make the metal go backwards before you arrived, and if after you'd done the work you had done the machine then operated in reverse, does that suggest to you that something that you did on the machine caused it to operate in reverse? A. No, it does not suggest that. … Q. If it doesn't, if it goes not in a forward direction but in a backward direction, does that tell you that there has been a faulty connection? A. No. The operation of that drive unit told me there was a faulty connection somewhere."
33. Mr Blaik acknowledged that in the course of plugging and unplugging various items, it is possible that he had introduced a faulty connection, but he would not accept that it was probable, he simply acknowledged the possibility that "it may have caused movement".
34. I consider this concession to be reflective of Mr Blaik's truthfulness and willingness to concede points, even if potentially against his interests.
35. Mr Blaik acknowledged that logically what he did - checking the encoder wires - would have been the first thing to do after the accident because that was where he was most likely to find the fault, given the information that he by then had. He also accepted that the reason he did that was because that was the only thing that he had not properly checked before the accident occurred. Again, these concessions reflect on Mr Blaik's truthfulness and willingness to answer directly without prevarication.
36. He explained in re-examination: [18] "A. I had further information in that the machine had moved. In seeing the machine move, I realised the drive unit was getting incorrect information. The information the drive unit was receiving was from the encoder, so therefore I went to the encoder wires. When I found the loose connection, I didn't move on further from that. If I've gone to that point and not found a loose connection, I would have then moved to the plug, the soldered - I could have possibly moved to the soldered plug connection on the encoder or I may have moved back to the encoder card. It was only because I found that fault, I stopped at that fault."

Expert evidence

1. The plaintiff relied upon two experts, one of whom was Mr Cockbain, an engineer with qualifications in Occupational Health and Safety and Risk Management. In his report dated 21 October 2014, Mr Cockbain sets out detailed criticisms of Atlas, and makes two discrete criticisms of Mr Blaik. The first is leaving his tool bag on material that was within an unguarded area of the CTL-1 when the machines were not isolated and the tool bag was within 600 millimetres of two "danger zones" and should have not been placed on top of the stainless steel sheet, [19] and second, the failure to conduct electrical testing and fault finding without effective isolation of all damaging energies and not ensuring the machine was completely isolated from electrical energy sources and that all persons were clear of dangerous parts of the machine when the machine was reenergised for testing and conditioning. Mr Cockbain's opinion about these issues when considering allegations of negligence against Mr Blaik is of less weight than opinions of an electrical engineer or electrician, but his opinion has been considered in my findings pursuant to s 5B of the Act.
2. Professor John Fletcher provided a report dated 12 December 2016. In the executive summary, Professor Fletcher concludes that it is not possible to identify precisely the reason the pinch roller operated in reverse on the day of the incident on the information then available, but that it was possible to identify sequences of events and wiring errors that would cause reverse operation. He said that a known occurrence on the morning of the incident was a fuse blowing in the electrical drive system that controls the direct current machine that rotates the pinch roller on the CTL-1. He is not clear what error caused the blown fuse. There is a "reasonable probability" that the fuse blew erroneously. There is also a possibility that a wire (associated with the encoder) coming loose led to the blown fuse in the morning. He concluded: "It is my opinion that the accident would have been avoided had Atlas and A M Controls acted in a proper manner. A M Controls should have checked all encoder connections before turning the system back on and Atlas should have eliminated the hazard of having the sheet on the rollers whilst the repairs were being performed. If either of these simple measures had taken place the accident would not have happened. The pinch roller operating abnormally in reverse led to the sheet material that had been left in the machine being compressed and bent like a leaf spring between the pinch roller and the neighbouring machine. When the pinch roller was lifted, it released one end of the sheet metal allowing the energy stored in the compressed sheet material to be released forcing the edge of the sheet metal forward towards Dempsey, pinning him at his abdomen to the guillotine."
3. In his 2016 report Professor Fletcher provides an explanation of the operation of the feedback sensor which is in my view consistent with Mr Blaik's account of what may have caused the machine to run in reverse. "14. If the feedback signal stops working, and, for example, sticks at one value, then you have difficulty maintaining a constant speed as your feedback sensor no longer provides an accurate indication of the actual speed you are travelling at. If your feedback has a fault but continues to display a value that has a 10 km/h positive error (when you are travelling at 90 km/h the speedometer displays 100 km/h) then you will continue to regulate your speed but you will be driving at 10 km/h less than your desired speed. 15. From this description, the feedback sensor is a critical element in the control system. Without an accurate measurement of speed and/or position the pinch roller drive would not be able to control the position or speed of the roller correctly. 16. Therefore, in my opinion it is possible that a fault in the encoder, or a fault in the connections between the encoder (mounted on the pinch roller) and the electrical drive system could cause the pinch roller to be rotated in reverse as the electrical drive system that controls the motor rotating the pinch roller would be unable to measure the actual pinch roller position and therefore would be unable to accurately control the position, hence speed and direction, of the pinch roller."
4. As explained by Professor Fletcher, [20] from the information that he had, it was not clear whether the pinch roller encoder itself was the source of the error that blew the fuse as there are uncertainties as to whether the encoder which was in service at the beginning of the day of the incident was installed back onto the electrical machine rotating the pinch roller after Mr Blaik swapped it for a replacement, or if Mr Blaik left the replacement encoder in the machine. Professor Fletcher also noted that swapping the encoder cards would require a number of wiring connections to be swapped each time. He noted that from Mr Blaik's statement, a loose connection in the encoder wiring was later discovered to be the source of the error, and he says that that was found to be the source of the error that resulted in the electrical machine running in reverse.
5. However, Professor Fletcher concluded: [21] "Whether the loose wire connection caused the fuse to blow in the morning or whether the loose wire connection was unintentionally introduced by Blaik during his fault finding makes no difference. Blaik should have located this fault prior to turning the electrical drive system back on, thereby avoiding the incident."
6. Professor Fletcher explained that whilst he understood the reasoning that led Mr Blaik to first investigate on the basis that the problem was with the encoder, (there was an error message issue by the electrical drive system on its display that indicated an encoder fault), it was in his view an omission not to first check the fuses on the electrical drive system and elsewhere. He was not aware at this stage of the evidence of Mr Blaik that he was following the order of checking the encoder first, because that is what the available manual said to do. When cross-examined on this issue Professor Fletcher agreed that if the manual said to "do exactly that", he would not be critical.
7. Professor Fletcher said that the disconnection and reconnection of the encoder card, which has a number of wires that would need to be removed from the connection block on the bottom edge of the encoder card and reconnected to the new one, happened twice and that this may have introduced the loose wire that Mr Blaik later discovered.
8. Professor Fletcher concluded that it was only possible that Mr Blaik had introduced the wiring error, [22] and without clarification of which wire was connected loosely, it is difficult to determine without doubt the sequence of events. [23] Professor Fletcher also noted that the electrical drive system configuration in the cubicle is complex and has many different software and hardware settings, so being absolutely sure which one of the connection faults led to the reverse operation of the pinch roller is not possible now. [24]
9. The other possibility is that replacing the encoder card introduced the encoder wiring error which made the fuse blow. To replace the fuse the power to the drive is removed and the fuse is replaced, and then when it is powered up again, to properly locate the marker position, the drive systems attempts to rotate the machine to align to the marker position and in doing this the drive system may have commanded the electrical motor that rotates the pinch roller to move in reverse due to the encoder wiring error. [25]
10. Professor Fletcher is unambiguous about who should have removed the sheet metal. He says that it should have been removed from the machine, or made safe by Atlas.
11. Professor Fletcher provided a supplementary report dated 6 June 2017. In that report he says that having read the description of how Mr Blaik disconnected and reconnected the wires that connected the encoder card to the drive unit and the plug that connected the encoder card to the encoder, Professor Fletcher still maintained the view that the question of where the fault lay remained up in the air because: "6. If the loose connection was in one of the wires that connected the top of the encoder card to the drive unit then it was Marcus Blaik's action of removing and refitting the encoder cards that led to the fault in the wiring. 7. If the loose connection was in the plug where the bottom of the encoder card connected to the encoder, then it is not clear that Marcus Blaik's action of removing and refitting the plug led to the fault in the wiring. The fault in the wiring and the plug that may have already been present before Marcus Blaik started work on the encoder card and its associated wiring. If this is the case, then it would be difficult for Marcus Blaik to determine visually that there was a fault within the wiring of the plug if the word plug is used in its conventional sense. 8. The wiring fault in the plug may have resulted from the actions of Marcus Blaik's removal and refitting of the plug during the exchange of encoder cards. Again it would be difficult for Marcus Blaik to see the fault in the plug if the word plug is used in its conventional sense."

Dr Casey's opinion

1. Dr Casey, mechanical engineer, provided an opinion for Mr Blaik in a report dated 7 January 2015. He outlined the different processes of the CTL-1 process line and explained the role of the encoder this way: "31. Several of the machines within this process line must grip the sheet metal with considerable force. Because each of them also feed the sheet metal through the process, it is important that they all feed the metal through at the same rate. Otherwise the metal will be stretched, compressed or broken. In this particular case, these machines are electronically synchronised to make sure that the sheet metal is feeding through each part of the process line, at the proper rate. Encoders attached to each of these machines provide an electronic signal that is used as a reference to synchronise the speed of the various machines. 32. The term encoder simply describes a device that provides a signal based on some movement or some action. In this case, shaft encoders are predominantly used. As the shaft turns, the shaft encoder typically produces a series of electronic pulses. Each shaft rotation produces the same number of pulses because this is fixed by the hardware that makes up the encoder."
2. In terms of why the pinch roller ran in reverse, Dr Casey concluded that it is not possible, without testing, to definitely know why the roll feeder started to operate in reverse. [26]
3. Relevantly to the liability of Atlas, rather than Mr Blaik Dr Casey was critical of the location of the pneumatic switch that Mr Dempsey activated to release the pinch roller: [27] "Because it was located on the side of the machine at that time, this meant that it was within reach of a person that could stand in the path of the metal whilst operating that switch. To me, it does not make sense to position that switch in a location that would allow an operator to activate it whilst standing in harm's way."
4. Also relevantly to Atlas's liability, Dr Casey said fixed barriers should have been installed to prevent Mr Dempsey from entering the gap and if there, the accident would have been avoided. [28]
5. Dr Casey gave oral evidence that the sequence in which Mr Blaik did the fault finding and repair was appropriate, particularly given that the manual directed him to start with checking the encoder card and that he did not agree with Professor Fletcher's view that the fuses should have been checked first because: [29] "…it would take hours to check the whole length of wiring and a prudent repairer would do the faster and quickest things first, check them to see whether they can get the machine working again". [30] Although Dr Casey did say in his report that Mr Blaik: [31] "…should not have left his tools on top of the metal sheet because irrespective of what direction the metal sheet moved it would have been sucked into a machine." However whether this amounts to negligence is a matter for me to determine, in the context of all the available evidence.

Joint expert report

1. On 13 June 2017 there was a joint conference of experts attended by Dr Casey, Professor Fletcher and Mr Cockbain. A joint report was produced in which the experts addressed a series of questions. All experts agreed that the cause of the fault of the machine which first made it cease operating could not be determined with certainty.
2. In answer to the question as to whether Mr Blaik introduced a wiring error that caused the reverse operation, it was agreed that given there were two possible locations where the loose connection was ultimately found, all that could be said was that if the fault was in one of the screw terminals, then he did introduce the wiring error, but if it was in the encoder plug, he may not have introduced the error. It depends on the location.
3. Professor Fletcher and Mr Cockbain stated Mr Blaik should have requested the metal be removed from the CTL-1, Mr Cockbain adding - if it was possible to safely remove it. Dr Casey did not agree because there was no danger beyond what would be present during normal operation of the machine as long as people did not stand within the process line. Question 9 of the report is worth mentioned because it proceeds on a misunderstanding that Mr Blaik "turned on the CTL-1 process line". I am entirely satisfied that all the evidence supports the "process line" was not started so the answers to that question are irrelevant.

Professor Fletcher's changed opinion in oral evidence

1. During his evidence on 8 August 2017, Professor Fletcher said that he had made an incorrect assumption about what part of the electrical system Mr Blaik had been working on. Because of this, his opinion in the joint report on the possibility of Mr Blaik having introduced a fault into the wiring in the act of plugging and unplugging the encoder cards, had changed. Professor Fletcher gave evidence that "in the process of exchanging the encoder cards, the fault in the wiring would have been introduced".
2. He was not prepared to accept that this was simply an assumption by him that Mr Blaik had disturbed the wiring in the process of removing and replacing the encoder card, insisting that it was "an opinion (he) formed on the basis of the process of removing and reconnecting the plug." Strangely when challenged by Mr Cavanagh SC for Mr Blaik, to the effect that this was not the opinion he offered in the joint report, Professor Fletcher said that he believed that it was. When pressed however, he said that he was "putting forward that altered opinion based on evidence he heard that morning from Mr Blaik".
3. Professor Fletcher explained the role of the encoder card as a circuit of electronics which processes the signals and supplies signals to the drive system through the eight prongs that can be seen at the top edge of the encoder card: [32] "A. …it is clear that he made and unmade the connections of the eight connections. At the top of the card there were eight prongs into the drive system. So if the faulty - if the faulty wiring was part of those eight connections, then it is clear that Mr Blaik introduced that particular fault. The uncertainty that I had was whether the faulty wiring was introduced in the wiring that comes in from the encoder through the screw terminals and the bootlace ferrules. The way that Mr Blaik had described that previously was he called it a plug, but in my opinion that is not a plug. That is just a connection block that can be removed from the circuit card and, in the process of removing it, it is quite possible that the wiring would be disturbed, given the physical force that you would have to apply to remove that terminal block and replace it on a number of occasions. It is my experience that most faults in wiring occur when plugs or terminal blocks or any sort of connection are moved, rather than faults occurring just as a matter of course. Q. Was it a relevant part of your process of reasoning that when the fuse was replaced, the new fuse did not blow? A. I believe that is indicative in that the fuse had blown on the morning of the accident. When the fuse was replaced the machine ran in reverse, but the fuse did not blow. Q. What did that tell you? A. That suggests to me that the fault that occurred in the morning was different to the fault that occurred in the afternoon when the machine ran in reverse. Q. When you say "fault", are you talking about a faulty fuse or a fault in the machinery or what are you talking about? A. The fault in the morning may well have been an erroneous operation of the fuse. The fault in the afternoon may have been a faulty connection associated with the encoder. Q. I think you've said in your report that something like 37% approximately of fuses will blow without any apparent reason? A. That is correct." [33]
4. The following exchange occurred during examination by Mr Cavanagh SC, [34] late in the joint evidence: "CAVANAGH: You said yesterday, as I understand it - correct me if I'm wrong - that the reason for what we are terming your change of opinion, rightly or wrongly, is that you came into new information, including the information that he was working on the right-hand encoder card rather than the left-hand encoder card. That's right, isn't it? WITNESS FLETCHER: that's correct. CAVANAGH: But they're essentially the same, aren't they? They have the same features? WITNESS FLETCHER: They do, yes. CAVANAGH: So it wouldn't make any difference whether you assumed he was working on the left-hand encoder card or the right-hand encoder card in terms of your opinion forming process, would it, Professor Fletcher? WITNESS FLETCHER: It depends a little bit on the detail of the terminals and-- CAVANAGH: They're essentially the same, I suggest to you. WITNESS FLETCHER: Well, the terminal block on the right-hand encoder card, which was worked on, is described a plug. The terminal block on the left-hand side may not be a plug, might just be a terminal block and that makes a difference to how the boards are exchanged when that repair happens. CAVANAGH: You mean they may be described differently. Is that what you're saying? WITNESS FLETCHER: They could be described differently. CAVANAGH: However they're described, they have the same essential componentry and features, don't they? WITNESS FLETCHER: In terms of the board itself, yes. CAVANAGH: Whether you describe it as a plug or a terminal or however you want to describe it, the connecting points are the same, aren't they? WITNESS FLETCHER: The - yes. The nature of the repair would be different. CAVANAGH: What do you say about that, Dr Casey? WITNESS CASEY: The only difference that I can see between the connections, where the wires join into each of those components, the only difference that I can see is on the left-hand board the little tiny screws that tighten up the wires into those connections is horizontal and on the right-hand board those little screws are vertical. Other than that they appear ostensibly the same. CAVANAGH: Do you agree with that? WITNESS FLETCHER: I disagree. CAVANAGH: You disagree? WITNESS FLETCHER: I think one might be a plug that you can remove and one might be a set of terminals that you cannot remove." [35]

Did Mr Blaik cause the metal to move in reverse?

1. In effect, Professor Fletcher said that his change in view is because of "this description of the work that was carried out" and "the significance was in the detail of where the connections were in relation to the encoder card, so this was the first time I heard described the nature of the disconnection and reconnection of plugs and terminations and where they were in relation to the encoder card." [36]
2. This does not, in my view, explain his shift in view. Second, and perhaps more importantly, the "shift" in view was not consistently maintained during questioning. Professor Fletcher's evidence on this issue vacillated between possibility ("may have introduced") and probability ("would have been introduced") and ultimately was unable to provide a satisfactory analysis as to how Mr Blaik "introduced" a faulty connection, relying on supposition rather than reasoning. Professor Fletcher said that he was "unable to be more specific as to how and when and in what circumstances Mr Blaik may have disturbed the connection in the area of the plug, other than to suggest he may have done it. [37]
3. I am persuaded by the joint report and Dr Casey's report and Professor Fletcher's 2016 and 2017 reports that the correct conclusion is that is that it is possible that Mr Blaik introduced a fault in the afternoon during the fault finding process, that had the effect of causing the CTL-1 to run in reverse. This is an insufficient basis upon which to make a finding on the balance of probabilities that anything Mr Blaik did or failed to do caused the CTL-1 to run in reverse and I make no such finding. Assessment of the issues of breach of duty of care on his part, and my conclusions regarding causation, proceed on the basis that it has not been established on the balance of probabilities that Mr Blaik caused the metal sheet on the CTL-1 to move in reverse. Even if he had, the reverse movement caused in those circumstances would not be a result of any breach of duty of care by Mr Blaik in the circumstances.
4. As confirmed in answers to questions from Mr Cavanagh SC, Professor Fletcher's real criticism is the order in which Mr Blaik carried out the fault finding and repair. [38] Professor Fletcher said that the sequence of the repair started with something that was "futile" and that Mr Blaik should have started with checking the fuses.
5. This criticism is in my view unsupportable and proceeds on the basis of hindsight bias. I prefer Dr Casey's analysis that it was reasonable for Mr Blaik to proceed in the order that he did because to check all the fuses would take some hours and it was reasonable to proceed in accordance with what the manual said to do and what would produce the quickest result. Professor Fletcher conceded that if that is precisely what the manual said to do, he would not be critical. [39] I accept Mr Blaik's evidence that the manual said to check the encoder card. The introduction into evidence by Mr Barry QC very late in the concurrent evidence of a manual for a "similar" machine makes no difference to my conclusion on this issue - there is no evidence that was the relevant manual to which Mr Blaik referred at the time.

The nature and content of Mr Blaik's duty of care to the plaintiff

(i) Factual bases

1. To determine the content of the duty of care owed by Mr Blaik to Mr Dempsey, attention needs to be directed to all of the circumstances of Mr Blaik's presence at Atlas that day.
2. Mr Blaik was an electrical contractor called in on a sub-contract basis to identify and rectify an electrical fault affecting the operation of the CTL-1.
3. There was no evidence at all called about what the malfunction in the morning had been. The only account of that is Mr Vincer's, contained in his statement to the WorkCover inspector set out in paragraphs [67] - [69] of this judgment. Mr Vincer was not called to give evidence. In his statement he said that he had been informed by the morning operator Ben Condron that the pinch roller was not working and that he (Mr Vincer) "investigated and found the fault indicator on the drive control unit for the pinch roller". Mr Vincer then says that he reset the drive unit but the fault remained, so he called Mr Blaik.
4. In the course of Mr Blaik investigating, identifying and rectifying the fault, he was provided with the assistance of the Mr Dempsey to operate and reset the machine. From the statements of Mr Vincer and Mr Dempsey it is clear that Mr Vincer was present for part of the repair process and was physically present near Mr Blaik at the time the sheet of metal that had been stuck ran in reverse followed by Mr Dempsey lifting the lever and stepping into the gap.

(ii) Submissions

1. In his written submissions [40] Mr Dempsey argued that the relationship between himself and Mr Blaik was not a novel case where there needed to be an examination of the nature of the relationship to determine whether a duty of care exists. Authorities such Bus v Sydney County Council (1989) 167 CLR 78; [1989] HCA 29 ("Bus") or Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 provide the prototype. This was followed by a recognition that the existence and content of the duty of care has to be determined by a detailed consideration of the factual circumstances from a prospective point of view - such as explained by Hayne J in Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62. The circumstances establishing the duty of care here were expressed, in the written submissions to be "the nature of the machinery, the knowledge of Mr Blaik about the machine, the way Mr Blaik did his work and the directions to the plaintiff".
2. An analogy is then sought to be drawn with the circumstances of the parties in Bus. In that case the defendant's employee left exposed live terminals in a switch room being worked in by the plaintiff electrician without telling the plaintiff that is what he had done. The plaintiff inadvertently touched the live terminals that were out of sight. It was argued by analogy that a reasonable man in Mr Blaik's circumstances must take into account the possibility of inadvertent and negligent conduct of others.
3. Whilst that may well be a reasonable statement of the law regarding standard of care and breach of duty, it is a diversion from the issue of the nature and content of the duty owed to Mr Dempsey by Mr Blaik, into a discussion about standard of care and breach of duty.
4. The submissions then seek to draw a parallel between the Mr Dempsey's role and the role of a rescuer such as Dr Cherry in Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46 - where the salient question was whether a duty of care was owed to Dr Cherry as a class of persons who may be affected by the negligent driver's failure to take care. I interpolate that there is no such issue here. Clearly Mr Dempsey was a person whom it was reasonably foreseeable may be injured if due care was not taken by Mr Blaik. This argument seems to proceed on the basis that because injury to a "rescuer" is foreseeable, including where inadvertence is involved, that Mr Blaik's duty of care extends to such potential events.
5. The characterisation of Mr Dempsey's deliberate entry into the process line at the same time as operation of the pneumatic lever of the CTL-1 by him seems to be put in the alternative as a "rescue" of the tool bag, or, alternatively as "mere inadvertence" such as was the case in Bus. The underpinning submission made is that these acts by Mr Dempsey were "caused by" Mr Blaik leaving his tool bag on the metal sheet. So, it is glibly argued, the nature and content of the duty of care, breach of duty and causation are all established.
6. Mr Blaik's written submissions emphasised the inherent danger in an action in negligence if one first looks at the cause of the damage and what could have been done to prevent that damage, and from there, determine the relevant duty, its scope and content: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 370; [2011] HCA 11. A duty should not be formulated retrospectively: Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540; [2002] HCA 54 at 611. This is what Mr Dempsey is seeking to do and that is wrong.
7. Examining the evidence informing the nature and extent of the duty of care owed is that Mr Blaik was asked to attend in his role as electrical contractor to see whether he could get the CTL-1 working. Mr Dempsey waited there until instructed by Atlas to assist. There was no communication between Mr Dempsey and Mr Blaik other than casual conversation and Mr Dempsey being asked to operate buttons on the control panel, a job he performed every day as part of his job at Atlas.
8. The duty of care imposed on Mr Blaik has to be limited to the exercise of reasonable care in the performance of the task he was asked to perform. That is to examine the electrical components in the electrical cabinet and hopefully fix the problem. The duty did not include a duty to instruct Mr Dempsey in the performance of his tasks as a machine operator, or to supervise him.
9. As pointed out by Mr Cavanagh SC, whilst pleaded, a number of the wider allegations regarding safe systems and warnings were not raised in the opening or put to Mr Blaik and were not pressed as part of the expert evidence so it must be that Mr Dempsey is not pursuing them.
10. As an electrical contractor retained by Atlas to perform a specific task at the workplace, it is not incumbent upon Mr Blaik to devise and maintain a safe system of work for Mr Dempsey or to instruct, supervise or warn him in the way pleaded in the statement of claim.

(iii) Consideration

1. The arguments made on behalf of Mr Dempsey obfuscate the issues and are constructed by hindsight analysis. It is clear that Mr Blaik did not control Mr Dempsey in all aspects of what Mr Dempsey did. Mr Dempsey could, and did, operate components of the CTL-1 to provide assistance to Mr Blaik to complete the fault finding and repair, as well as other non-electronic parts of the CTL-1. Critically, unasked and of his own volition, Mr Dempsey operated the pneumatic lever on the other side of the CTL-1 some distance away from Mr Blaik, releasing the metal sheet and causing the metal sheet to shoot forward into him because he had stepped into the process line.
2. The content of Mr Blaik's duty was, as identified correctly in the written submissions of counsel for Mr Blaik, to exercise reasonable care in the performance of the task that he was asked to perform at the factory, having regard to the skill and experience of an ordinary competent electrician contractor. [41]
3. Mr Blaik was not invested with general responsibility for the CTL-1, or the system of work and access to the CTL-1 that was already in place as set up by Atlas. Counsel for Atlas, Mr Rickard expressly disavowed a delegation of Atlas's duty of care to Mr Blaik. [42]
4. Mr Blaik did not adopt an overarching duty for the general supervision of Mr Dempsey. The CTL-1 had mechanical and pneumatic components over which Mr Blaik exercised no control. In particular, the pneumatic lever, an aspect of the CTL-1 which I accept Mr Blaik knew nothing about and had no reason to be familiar with, was outside any aspect of control of Mr Blaik, and thus necessarily outside the parameters of his duty of care.
5. The non-delegable duty of care owed by Atlas to Mr Dempsey remained overarchingly in place and was not reduced, let alone subsumed by Mr Blaik's presence and activities. Mr Blaik had a duty of a much more limited kind in operation at the same time, and that was the duty to take reasonable care to avoid injury to Mr Dempsey, whilst exercising the skill and experience of an ordinary competent electrical contractor.

i) Statutory requirements and legal principles - centrality of identification of the "risk of harm"

1. The issue of breach of duty of care is governed by ss 5B and 5C of the Act: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
2. As stated by Leeming JA in Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 ("Miller"), with whom the other members of the Court agreed: "102 Central to the determination of civil liability for failure to exercise reasonable care and skill is the identification of risk. In Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330, Gummow J, with whom Heydon J agreed, observed at [59] that it is "only through the correct identification of the risk that one can assess what a reasonable response to that risk would be". His Honour had earlier observed that "the assessment of breach depends on the correct identification of the relevant risk of injury": at [18]. Although Mr Dederer's diving injury was suffered before the Act had commenced, it is easily seen that those statements remain applicable to actions for a failure to exercise reasonable care and skill to which it does apply." (Emphasis added).
3. Whilst the pleadings in the 2FASOC and the written and oral submissions provided on behalf of Mr Dempsey paid little attention to the requirements of s 5B, it is clear I must pay significant attention to that necessary statutory evaluation, as identified in Miller per Leeming JA (Basten and Simpson JJA agreeing): "105 Each of those seven paragraphs must be considered by a court before a defendant is found to have been negligent. Subsection (1) states three necessary preconditions to liability, while subsection (2) provides a non-exhaustive but mandatory list of factors to which the court is required to have regard. As is plain from the nature of those requirements, not to mention the statutory language, echoing what was said in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, it is clear that "[s]ection 5B presupposes the existence of the law of negligence, and operates against its background": Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360 at [173]. 106 Each paragraph within s 5B in terms presupposes a "risk of harm" against which, so it is alleged, precautions should have been taken. As Sackville AJA said in Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; [2014] Aust Torts Rep 82-172 at [52], in order to apply s 5B (and s 5C) "it is necessary, just as it was under the pre-existing law, to identify the relevant 'risk of harm'". 107 As Meagher JA said in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [22]: "To address the questions and considerations in s 5B, it is necessary to formulate a plaintiff's claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed."
4. The appropriate formulation of the risk of harm in this case has some complexity. As stated in Miller per Leeming JA (Basten and Simpson JJA agreeing): "118 It is clear that the risk is not to be confined to the precise set of circumstances which are alleged to have occurred, although it must encompass those circumstances. It has been said, in my view correctly, that the "proper identification of the risk can be difficult, if not problematic": Erickson v Bagley [2015] VSCA 220 at [33]. That is not to say that the problems need be insuperable. For one thing, very commonly these issues arise in familiar areas. As Gleeson CJ said in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at [13]: "Most actions in tort which come before trial courts arise out of relationships in which the existence of a duty of care is well established, and the nature of the duty well understood. Cases arising out of the use of a motor vehicle, or involving employer and employee, or bailor and bailee, turn upon the application to the facts of well settled principles concerning legal responsibility." 119 For another, there may commonly be a range of appropriate formulations of the generality of the risk of harm. It is unrealistic to expect there to be a single canonically "right" characterisation of the risk of harm. When Gummow J said in Dederer at [59] that "it is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be", I do not understand his Honour to have been contending that there was only one "correct" formulation of the risk of harm, as opposed to emphasising the important fact that achieving the appropriate level of generality or particularity is vital. One clear indication of the fact that there may be a variety of formulations emerges from the fact that trial judges and appellate courts reaching the same result have, on occasion, formulated the risk differently. That is unsurprising; the Act is in very general terms. 120 There is a general statement in the joint judgment of the Court in Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 320 ALR 235 at [106] that: "Generally, it is as unnecessary as it is undesirable to define the relevant risk with this level of particularity. Particularity is called for in the present case because several risks attend the process of boarding a chairlift and unless the relevant risk is identified with sufficient precision one cannot determine what, if any, reasonable precautions ought to have been taken in order to avert it." 121 That passage accords with earlier decisions. In Dederer itself, Gummow J criticised the characterisation by the majority of the Court of Appeal of the risk as being "serious spinal injury flowing from the act of diving off a bridge": at [60]. His Honour said that "such a characterisation of the risk obscured the true source of potential injury". The proper characterisation was "the risk of impact upon jumping into the potentially shallow water and shifting sands of the estuary"."
5. In Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90, the Court of Appeal held that the characterisation of the risk of harm made by the trial judge was an incomplete description of the relevant risk, as the risk had to include, in that case, in addition to the safety bar being down on the ski lift, that the risk of harm arose because of the conjunction of that event plus the defendant's employee's late response to it, as well as the appellant and her companions' reactions to that late response. The Court made the point that the appellant (the ski lift operator) had control over the first two factors, but only limited control over the third. The Court said, at [97]: "When the risk is stated with the necessary particularity, it becomes clear that it is not something that was "very much in the control" of the appellant. The elision of the two risks…led the primary judge to attribute to the appellant a greater degree of control over the risk than it possessed".
6. The potential for error to be made by "eliding the risks", as warned against in Nair-Smith, is present here. Identification of the risk that a worker will act in a particular way must be included in the risk of harm so that the necessary differentiation can be made between what was in the control of Mr Blaik, and what was not.

"Risk of harm"

1. The plaintiffs written submissions deviated somewhat from the pleaded "risk of injury" set out in [13] of the 2FASOC to state that the relevant risk of injury was: "if Mr Blaik did not carry out the contractual duty to find the fault and repair the machine in a tradesman like manner, exercising the reasonable care and skill of an electrician, the sheet metal could behave in a way that could cause serious injury to any person in the vicinity by reason of the unexpected or abnormal sudden movement of the sheet metal."
2. Mr Blaik submitted that the plaintiff's description of the risk of harm in paragraph [13] of the 2FASOC is incomplete, and that any risk of harm must include in it reference to the movement of the sheet metal and the operation of the pneumatic lever and Mr Dempsey being in the gap. That criticism applies equally to the re-formulation set out in [159] above from the plaintiff's written submissions. The critical elements of Mr Dempsey's manual interference are again omitted.
3. I reject Mr Dempsey's characterisation of the risk of harm set out in paragraph [13] of the 2FASOC and set out in his written submissions as critically incomplete.
4. The appropriate characterisation of the risk of harm in the circumstances is: the risk of harm to a person who would seek to retrieve a tool bag left by the contractor on the metal sheet in the CTL-1, by releasing the tension on the metal, by operating part of the CTL-1 and entering the process line, following the unexpected movement of the metal within the CTL-1, whilst in a state of testing, but not operation, during repair.

(a) Plaintiff's submissions

1. The written submissions of the plaintiff [43] set out an evolved position from the 2FASOC which recast and limited the precautions that Mr Dempsey says should have been taken by Mr Blaik. The first is failure to use a "safe methodology" for carrying out the electrical works; the second is ensuring the sheet of metal in the machine could not move in a way that might cause injury and damage by clamping or removing it or asking it be removed; third, by "checking the power supply" which would have found that a fuse needed to be replaced and thus avoided the accident; fourth, that the fault was introduced by Mr Blaik; and fifth, that Mr Blaik should have "ensured no equipment of his was in a position which could cause damage to the machinery or to the equipment and or that no person was in the vicinity of the sheet of metal when he powered up the machine to test and to direct the plaintiff to stand clear when he powered up."
2. The s 5B(2) submission made was that "none of these precautions were burdensome and could have been implemented without undue expense". It is then argued that when these precautions were not taken "the result was that the sheet or metal moved unexpectedly and violently causing the plaintiff to attempt to rescue Mr Blaik's equipment exposing himself to the likely risk of injury from malfunctioning large and dangerous machine" .
3. In oral submissions in response to a specific request by the trial judge to more fully address the requirements of s 5B, and in particular foreseeability, Mr Barry QC submitted that the "danger" is "created from abnormal movement of the sheet of metal in the machine and if the repairer who sees the metal there doesn't do the repair exercising reasonable care and skill and he causes the machine to behave abnormally, any injury to anyone in the vicinity is a foreseeable risk." [44]

(b) Mr Blaik's submissions

1. Mr Cavanagh SC submitted that there is no evidence upon which the court could make a finding of foreseeability of these matters on the part of Mr Blaik. Section 5B requires some specificity here and "old cases" with an undemanding test of foreseeability have been replaced by s 5B which requires each of the seven paragraphs of s 5B be considered before a defendant can be found to have been negligent.
2. Section 5B(1) requires that Mr Blaik knew or ought to have known that the metal may move backwards, creating the gap, and then for whatever reason expel the metal forward, thereby creating danger to any person who entered the gap. These matters were not taken up with Mr Blaik. He specifically said that he had no reason to believe that the material would move at all given the stage of the repair process when he placed his tool bag there. [45]
3. Mr Dempsey himself said that he did not expect the machine to operate that way and Mr Vincer and Mr Dempsey both said it had never operated that way before, so how could it be said that Mr Blaik should have foreseen it.
4. The other factor not established is that the risk was not insignificant within the meaning of s 5B(1)(b) and the submission is made that the court would not find that the risk was "not insignificant", given the identified risk originated from a completely unexpected combination of events.
5. Many of the particulars of negligence were not pursued in that they were not the subject of any evidence in support (namely allegations 17(a),(b),(c),(e),(k),(l),(m), and (n)). Mr Blaik's written submissions divided the particulars of negligence into three categories; failure to properly instruct, warn and supervise, failure to carry out a risk assessment, and inadequacies in the way the task was carried out i.e. what he did inside the electrical cabinet. [46]
6. In respect of the first category, no questions were asked of Mr Blaik or the experts about these matters. In any event no such duty was owed. This category of allegation fails.
7. In respect of the risk assessment, undertake safe work plan type allegations, they were not pursued, they were not put to Mr Blaik and they were relevantly struck out of Mr Cockbain's report as not pressed.
8. The remaining allegations pressed were assessed by Mr Blaik to be: 1. Failure to isolate the machine in the sense that in some way the power should never have been turned on; 2. Failure to commence the fault-detecting process with the fuse, on the basis that if that had occurred, in some way the accident would not have happened; 3. Somehow creating the problem with the loose connection; 4. Failing to check the wiring at some point; 5. Failing to remove the sheet metal or clamp it prior to commencing work; and 6. Leaving the tool bag on the material in the first place.
9. In respect of i), all the experts agreed it was necessary to power up to determine whether the fault had been detected. [47] In respect of ii) Professor Fletcher is the only expert who supports this view and he does so on the basis that 35% of fuse issues are unexplained and so he would start there. This is not negligence - it is just a different way of doing things. Mr Blaik gave evidence that he proceeded the way he did because the manual for the drive suggested that he should first check the encoder card when it says encoder fault. It was not put to him that this was not what the manual said and no manual was shown to him that said to the contrary. He was not asked to produce the manual and there is no reason for the court to doubt his evidence. Photographs tendered by Mr Dempsey show manuals in the electrical cabinet. Professor Fletcher gave evidence that he would not be critical if the manual said to do exactly that. What Professor Fletcher thinks about what was to be likely in a manual that he did not see is not determinative or of any probative value. The allegation is entirely shaped by hindsight bias.
10. Further, Dr Casey supported Mr Blaik's approach. This is relevant to s 5O considerations. Whilst it is unnecessary to determine the case based on s 5O, if the outcome is dependent upon some difference between Professor Fletcher and Dr Casey as to the methodology adopted by Mr Blaik, then through Dr Casey, Mr Blaik has established his defence.
11. On item iii) the evidence despite all the examination about it ended up inconclusive on the issue of whether Mr Blaik may have disturbed the wiring when handling the plug; it is no more than a possibility. [48] It is nothing but speculation. Even if the court found that Mr Blaik disturbed the wiring in the plug, it is not evidence of negligence and Professor Fletcher agreed with that. [49]
12. The criticism by Professor Fletcher that Mr Blaik should have started with the fuse falls away on the assumption that Mr Blaik had a proper reason for starting with the encoder card, particularly given that Dr Casey did not support the view that Mr Blaik should have started with the fuse.
13. Criticism for failing to check the wiring is simply criticism informed by hindsight. Professor Fletcher was not critical of Mr Blaik in not checking the wiring prior to the accident. It was always Professor Fletcher's proposition that Mr Blaik should have checked the fuse first. [50] Also significantly, the power was off at the time of the injury and it was Mr Dempsey's manual operation of parts of the machine which caused the metal to move and hit him.
14. Dr Casey said it would take hours to check the whole length of wiring and a prudent repairer would do the fastest things first. [51]
15. Failing to remove or clamp the metal (item iv), was not Mr Blaik's responsibility. The clamping idea is clearly informed by hindsight. Finally, there was no danger in the tool bag on a stationary object and even when it moved back into the rollers, unless and until Mr Dempsey manually operated the CTL-1 by releasing the pinch rollers and entering the gap created, there was no danger associated with the position of the tool bag.

(iii) Decision on breach of duty

1. In carrying out the necessary analysis pursuant to s 5B(1) there are a number of questions that need to be asked and answered, bearing in mind the requirements of s 5B(2). I am satisfied that the evidence establishes that Mr Blaik did not foresee that the metal would move backwards. He did not foresee that the metal would move at all because the power had only been applied to the drive unit, not to start the operation of the CTL-1. In examining whether he ought to have known that there was a risk that this would happen (given that the start button had not been pressed to make the process line operate on any person's account of events), it is relevant to consider whether he ought to have known that the CTL-1 could operate in a way that moved the metal backwards at speed. The evidence establishes that not only did he have no basis himself to conclude that was foreseeable, but Mr Dempsey's case was that that had never happened before. Clearly that part of the identified risk was not foreseeable, nor do I find that Mr Blaik ought to have foreseen it.
2. In those circumstances it is not reasonable to find that Mr Blaik ought to have taken precautions against the risk that the metal would move backwards and take his tool bag backwards under the pinch roller by not leaving his tool bag in that position.
3. More critically, it is not reasonable to have expected Mr Blaik to foresee that Mr Dempsey would interfere with part of the CTL-1 by operating a lever about which Mr Blaik knew nothing, or that Mr Dempsey would then step within the process line, in the path of the metal sheet.
4. Mr Blaik was working on electrical cabinets on the other side of the CTL-1 some distance from Mr Dempsey. The CTL-1 is five metres wide. I accept that Mr Blaik was not aware that tension had become stored in the metal by its backward movement. Indeed the evidence indicates that he barely had seconds to think about that, given the evidence of Mr Dempsey that he, Mr Dempsey, moved towards the machine and simultaneously lifted the pneumatic lever and stepped into the space to retrieve the tool bag that had gone under the pinch roller.
5. Given that Mr Dempsey did not foresee the peril that he had placed himself in as an experienced operator of the CTL-1, dealing with sheets of metal in the CTL-1 on many workdays, for more than a year, it is not reasonable to find that Mr Blaik should have foreseen these events; first, despite the "start" button not being pressed, that the process line would somehow operate to move the metal in reverse; second that there was stored energy in the metal sheet from the backwards movement; third that Mr Dempsey would lift the lever thus releasing the pinch roller's hold on the metal; fourth that Mr Dempsey would move into the space between the pinch roller and the shear; and fifth that the metal would suddenly project forward into Mr Dempsey.
6. I do not consider the risk of harm was foreseeable, or that Mr Blaik ought to have been aware of it, (s 5B(1)(a)).
7. In respect of the requirements of s 5B(1)(b), I conclude that the risk, that is the risk of harm from release of the stored energy in the metal sheet in the CTL-1 if released whilst the CTL-1 was in a state of testing during repair while a person was standing in the process line, was one that was not "not insignificant" given the constellation of unexpected and unusual events that had to align before the risk of harm was created.
8. The precautions that it is alleged Mr Blaik should have taken against the risk of harm are set out in paragraph [17] of the 2FASOC as particulars of negligence. I am not satisfied that any of the precautions listed in the 2FASOC are precautions that a reasonable person in the circumstances of Mr Blaik, would or should have taken. In reaching that view I have borne in mind all of the requirements of s 5B(2) in respect of each of the precautions it is alleged Mr Blaik should have taken.
9. Despite the apparent abandonment of a number of specific allegations I have for caution dealt with each. In respect of the allegation that Mr Blaik should have carried out a risk assessment of the work to be carried out and identified the "risk of injury" as set out "above" (presumably a reference to paragraph [13] of the 2FASOC) (in paragraph 17(a) of the 2FASOC), the work that Mr Blaik was carrying out involved the electrical cabinets on the other side of the CTL-1, distinct and separate from the pinch roller and shear unit components of the CTL-1 process line. The CTL-1 should not have commenced moving at all given it was only in "reset" mode, not start mode. Mr Blaik could not have known (nor is it reasonable to expect him to have foreseen) that whilst he was carrying out his tasks, a risk was to develop from Mr Dempsey operating the pneumatic lever and stepping into the gap that had been created in the process line just seconds before, by the CTL-1 causing the metal sheet unexpectedly to move in reverse. Seconds before, the sheet of metal occupied the space between the pinch-roller and the shear unit. Being in the area when it moved back was not alone what created the risk of harm; lifting the lever created the risk.
10. It is not reasonable to have expected Mr Blaik to warn and direct Mr Dempsey not to go into the area between the pinch roller and the shear unit while the repair and testing was being carried out (the allegation in paragraph [17(b)]), when there is no basis at all upon which he could have anticipated that Mr Dempsey would take those steps. I accept that Mr Blaik would not yet have had the opportunity to see the gap that had been created by the backwards movement of the metal or to expect that Mr Dempsey would operate a lever and step into the gap in the process line during the incomplete fault finding and repair process.
11. I accept Dr Casey's opinion that the CTL-1 was in a safe and stationary position once the emergency stop ("e-stop") button had been activated after the backwards movement of the sheet of metal. At that point Mr Dempsey must have been at the control panel some distance from the side of the CTL-1. It was Mr Dempsey who of his own volition created the danger by moving to the CTL-1, lifting the pinch roller handle and stepping into the gap. This is a clear illustration of the risk of harm having within it a necessary component outside Mr Blaik's control.
12. The allegation in 17(c), failure to direct Mr Dempsey to stand clear, is not a reasonable precaution given that Mr Dempsey was an experienced operator of all components of the CTL-1 and had been asked to press reset which was a button on a control panel some distance away from the CTL-1. At that stage of testing, the evidence establishes that there was no reason to expect the CTL-1 to operate and move the metal sheet. All that was supposed to happen was that when the reset button was pressed, the power would be applied to drive unit so that fault finding could continue. There was no expectation that the rollers would move the metal in reverse or otherwise. In fact, the expectation was that it would not. Mr Dempsey inserted himself into the process line without warning at a point when on Mr Dempsey's account, the CTL-1 had just done something it had never done before - i.e. move the metal sheet in reverse.
13. In respect of allegation 17(d) regarding a "safe method for carrying out the repair work", whilst clearly reasonable precautions should be taken, it is not one that would have relevantly affected the risk of harm because Mr Blaik's work was being carried out in the electrical cabinet some distance away and his repair work did not involve the operation of the pneumatic lever, or a requirement that Mr Dempsey enter the process line.
14. Allegation 17(e) has within it an assumption that Mr Blaik had an obligation to instruct Mr Dempsey as to the manner in which he could assist. That is probably correct as far as it goes, but Mr Dempsey carried out an act without instruction, operating a component of the CTL-1 that Mr Blaik did not know about and could not and did not control.
15. In respect of allegation 17(f), I have concluded that the machine was not being tested in terms of operation, but that it operated completely unexpectedly. Accordingly, that allegation is misplaced.
16. Allegation 17(g), "carried out repair and testing on the CTL-1 in an unsafe manner", is a very general allegation. Whilst it is obvious that repair and testing should not be carried out in an "unsafe manner", the allegation is at such a level of generality that it fails to identify a reasonable precaution that ought to have been taken, and so fails.
17. Allegation 17(h) is elliptical because what is meant by "the CTL1 being completely isolated from electrical power" is not clear. It appears to proceed from a misunderstanding of the fact that the CTL-1 was not able to be tested for fault if there is no power at all applied. The evidence is clear that power needs to be applied to the drive unit so that it can be seen whether the fault has been eliminated, but power had not yet been applied to the CTL-1 to make it drive the metal until the "start" button is pressed. I accept the evidence of Mr Blaik (and the experts), that it is not until the start button is pushed that power is applied to the process line of the CTL-1. At that point, i.e. - when "start" is pressed, I accept that reasonable care may well require that all persons be ordered to stand clear. However, what is meant by the "dangerous parts" of the CTL-1 is not specified, and so provides no basis to identify why or how such a precaution could be taken.
18. In respect of allegation 17(i), whilst it is true that Mr Blaik left his tool bag on the metal sheet in the machine, it is not reasonable to have expected him to take the precaution of removing it in circumstances where he had a reasonable expectation that all that could occur in the CTL-1 being "reset", was power being applied to the drive unit so that he could check the display to see whether the fault had been eliminated. There was no expectation at all by anyone that the metal on which the tool bag was sitting would move backwards into the pinch roller, causing energy to be stored in the metal sheet which bowed upwards. Nor was there any basis upon which he could have anticipated that the plaintiff would lift the pneumatic lever and enter the process line between the pinch roller and the shear unit. Accordingly reasonable care does not require him to take the precaution of not leaving his tool bag on the stationary metal sheet on the CTL-1 in those circumstances.
19. In respect of allegation 17(j), I have already found that there is no evidence upon which I could find that the Mr Blaik caused the CTL-1 to operate in reverse.
20. In respect of allegation 17(k), it would not be a reasonable precaution to warn the plaintiff that the steel sheet had bent and was therefore "potentially dangerous" in circumstances where Mr Blaik himself did not know that had happened and did not know anything about the compression forces of metal and its potential danger. Mr Dempsey, despite operating the machine for over a year also did not himself know those things and there was no evidence called by Mr Dempsey or by Atlas to suggest how or why Mr Blaik ought to be aware of those matters. Also the "potential" for the metal to become dangerous was created by Mr Dempsey by lifting the lever and standing within the process line.
21. It would not be reasonable to conclude, as is claimed in allegation 17(l), that Mr Blaik should have warned Mr Dempsey not to release the lever for the pinch roller in circumstances where I accept that Mr Blaik was not aware of the pneumatic lever or its operation and had no reason to be aware of it.
22. For the same reason, allegation 17(m), failing to direct the plaintiff not to release the pinch roller, is not a precaution that a reasonable person in Mr Blaik's position ought to have taken in the circumstances for the reasons set out in the above paragraph.
23. In my view allegation 17(n), failing to develop and implement a work plan for the repair that was methodical and safe, is not established on the evidence. Whilst Professor Fletcher is of the view the fault finding ought to have been done in a different order, that view is informed by hindsight bias.
24. I accept the view of Dr Casey that Mr Blaik's fault-finding approach was sensible and methodical. The fact that the fault was not located before the accident occurred does not mean this allegation is made out. In any event leaving his tool bag on what was legitimately thought to be a stationary piece of metal in the CTL-1 not yet operational, does not mean there was not in place a methodical and safe work plan, or that there was a lack of reasonable care on Mr Blaik's part.
25. Allegation 17(o) is rejected given my findings in respect of the order in which the fault finding was carried out. I have already concluded that I cannot make a finding that any disconnection made by Mr Blaik was not properly re-connected and therefore comprised a failure to carry out the inspection, testing and repair work properly.
26. Allegations 17(p) and 17(q) regarding the presence of or failure to remove the sheet of metal or to request its removal or using a clamp on the metal are clearly all matters within the responsibility of Atlas. Mr Dempsey was a reasonably experienced operator. A senior person, Mr Vincer, was present with Mr Blaik and in the immediate vicinity of the CTL-1 as it was being reset before the plaintiff's injury. Mr Vincer had tried to fix the CTL-1 before Mr Blaik arrived. Mr Vincer did nothing to remove the metal sheet. No-one at Altas did anything to remove the sheet. Mr Vincer was not called to give evidence. I can and do, draw an inference that his evidence would not have assisted Atlas: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
27. The allegation that Mr Blaik should have clamped the steel sheet is not supported by the expert evidence. Professor Fletcher says this was the responsibility of Atlas. Added to that is the need to bear in mind that what was required of Mr Blaik is limited to taking reasonable steps in response to the risk of harm. In my view it is not reasonable to have required Mr Blaik remove or clamp the metal given the limited remit of his presence at the premises. In any event Atlas's position, as unambiguously put to Mr Blaik during cross-examination, was that Mr Blaik had been told that Atlas could not remove the metal because it was too big to be moved and was "stuck", and the CTL-1 had to be repaired before it could be removed. [52]
28. I have already concluded that the criticisms regarding "checking the power" were not to do with ensuring no blown fuses were preventing its operation, but simply to ensure that the power was on. That was done. I have already concluded that the evidence about Mr Blaik potentially having introduced the fault that caused the metal to run backwards during his repair process does not rise above the level of possibility, and so is not established to the necessary degree.
29. It seems to me the only possible precaution that Mr Blaik should have taken was not to leave his tool bag on the metal sheet. However, in the same way as Mr Dempsey and Mr Vincer did not expect the sheet metal to move at that stage, let alone backwards at speed, it is not reasonable to have expected Mr Blaik to have foreseen those events. Added to that is Mr Blaik's evidence, corroborated by Mr Vincer, that the CTL-1 was not in operation mode, only in testing mode, and so the material should not have moved at all.
30. I accept that the CTL-1 had not been started but simply had power applied to the drive unit by the pressing of the reset button. On Mr Dempsey's version, he had not even done that. Mr Blaik had no reason to expect the metal to move at all at that stage.
31. Given those circumstances and the location of the operator's control panel some distance away from the CTL-1, there is no basis upon which to conclude that a reasonable precaution that Mr Blaik should have taken was to tell the plaintiff to stand clear.
32. For all of these reasons, I am not satisfied that Mr Blaik breached the duty of care that he owed to Mr Dempsey.

Causation

1. Causation is governed by s 5D of the Act: 5D General principles (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 (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
2. Section 5E of the Act provides: 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Plaintiff's submissions on causation

1. Mr Barry QC's submission on the requirements of s 5D was simply to say "it brings back the old but for test, at least in part. But for the fact that Mr Blaik did not conduct a systematic examination of the wiring on this machine before it commenced to operate abnormally, the accident would not have occurred.." and "but for the fact that he could have and should have first checked the fuse, the accident would not have occurred".

Mr Blaik's submissions on causation

1. As submitted by Mr Blaik, Mr Dempsey must establish both factual and scope of liability causation within the meaning of s 5D of the Act. This means establishing the relevant causal connection between Mr Blaik's negligence and the harm.
2. The question of whether the act or omission identified is a necessary condition of the occurrence of the harm and that it is appropriate for the scope of Mr Blaik's liability to extend to that is not considered independently of duty and breach. Emphasis must be placed on the sequence of events. First, there was no power to the CTL1 and the machine was stationary and there was no danger. Mr Dempsey was not directed or requested to place himself in the process line. Mr Dempsey did this himself whilst operating or just after operating the pneumatic lever.
3. Anything done by Mr Blaik was not a necessary condition of the occurrence of the harm. Any suggestion that Mr Dempsey was "forced" to rescue the tool bag should be rejected. The machine was stationary and immobile and he made his own choice.
4. Causation is a question of fact determined by applying common sense to the facts of the case. The "but for" test applies to factual causation but as was said in March v Stramare (E. and M.H.) Pty. Ltd. (1991) 171 CLR 506 at 516; [1991] HCA 12 ("March"), the "but for" test must be applied subject to certain qualifications. The factor which secures the presence of the plaintiff at the place where and at the time he is injured is not causally connected with an injury. The "but for" test applies an exclusive criterion of causation that can yield unacceptable results so this must be tempered by value judgment and policy considerations. The "but for" test also does not give a satisfactory answer where there is a superseding cause said to break the chain of causation from an earlier wrongful act, and that is the situation here.
5. What have to be considered for causation to be established are only negligent acts. To be causally relevant, the court needs to find that for example Mr Blaik placing his tool bag on the sheet of metal was negligent. This must be analysed with foresight not hindsight. As Deane J said in March at [6]: "For the purposes of the law of negligence the question of causation arises in the context of the attribution of fault of responsibility: whether an identified negligent act or omission of the defendant was so connected with the plaintiffs loss of injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it."
6. Causation has not been established because even on a literal approach to the "but for" test, scope of liability has to be considered. Any application of common sense principles and value judgment would suggest it is not appropriate for the scope of Mr Blaik's liability to extend to the harm so caused. Mr Dempsey was injured by doing something as the CTL-1 operator, that he had been told by Atlas that he was entitled to do - i.e. entering the space between the shear and the pinch roller as well as manually working the pneumatic lever. Mr Blaik had no responsibility or right to stop him.

Decision on causation

1. The description of the CTL-1 as "malfunctioning, large and dangerous" [53] in the plaintiff's written submissions simply obscures the necessary enquiry as to what actually happened to cause the plaintiff's injury, and obscures the necessary consideration of the requirements of s 5D of the Act.
2. The written submissions made on behalf of Mr Dempsey do not address s 5D of the Act at all. The only written submission made in respect of causation appears to be: "But for the failure of the first defendant to adopt these precautions referred in paragraph 38, the accident would not have happened." [54] That is an entirely inadequate basis upon which to decide the issue of causation in these proceedings, and oral submissions concerning s 5D were made only after a specific request was made by me to address the requirements of the Act, and were also inadequate in addressing the requirements of s 5D (and s 5E).
3. Mr Dempsey was familiar with the operation of the CTL-1. The submission made in the plaintiff's written submissions that the sheet metal moved "unexpectedly and violently" does not seem to be an accurate representation of what occurred. [55] Whilst the movement backwards was unexpected, Mr Dempsey's evidence was that the pinch roller was turning at what appeared to be "the normal speed that it runs at if it was going forward in automatic." [56]
4. Further, the submission that this "unexpected and violent" movement "caused" the plaintiff to attempt to rescue Mr Blaik's equipment is not borne out by the evidence. The evidence demonstrates that the tool bag had already gone under the pinch roller, and the CTL-1 had been turned off by the emergency stop button that Mr Dempsey pressed as requested by Mr Vincer and Mr Blaik. Only after that did Mr Dempsey quickly step into the gap between the pinch roller and the shear unit having flicked the pneumatic lever up thus releasing pressure on the metal and causing the danger to himself. The CTL-1 was otherwise non-operational.
5. There is no causal link between the leaving of the tool bag or any other alleged act or omission by Mr Blaik, and the injury to Mr Dempsey. It would be a different analysis if the tool bag flew off and hit Mr Dempsey whilst he stood at the control panel or to the side of the CTL-1, but that is not what happened. Causation is not established. In any event I have not concluded that anything Mr Blaik did or failed to do establishes a breach of duty on his part.

Obvious risk

1. Mr Blaik pleaded that he had no obligation to warn Mr Dempsey of any obvious risk. Sections 5F, 5G and 5H of the Act provide: 5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
2. In his written submissions Mr Dempsey said that because he was unaware of the risk created by the stored energy in the sheet metal, he never knew that it would spring forward when he released the pneumatic lever. It was never put to him that he knew or ought to have known that could occur. The highest the evidence got was that he thought that all that would happen if the metal was forced backwards was that it would be bent. [57]
3. Mr Cavanagh SC did not make any written or oral submissions regarding s 5F, s 5G or s 5H. I am of the view that the requirements of s 5F, s 5G and s 5H are not satisfied, but I have already concluded that Mr Blaik did not breach his duty of care to Mr Dempsey in failing to warn him of any risk.

Section 5O professional negligence

1. Section 5O of the Act provides: 5O Standard of care for professionals (1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.
2. The submissions made on behalf of Mr Blaik on this issue are set out in paragraph [175] of this judgment and I accept them in full. Mr Barry QC did not deal with this issue in either written or oral submissions. Given my findings in respect of the expert evidence, and in particular the evidence of Dr Casey, and my conclusion that Mr Dempsey has not established liability on the part of Mr Blaik, I do not need to need to further consider or make any specific findings pursuant to s 5O. In any event I accept Dr Casey's evidence that is to the effect that Mr Blaik's conduct accorded with professional practice regarded by peer professional opinion as competent professional practice.

Liability of Atlas

1. Mr Cockbain's report sets out in detail multiple fundamental criticisms of Atlas's conduct relevant to the case made by the plaintiff against it. On page 26 of his report he sets out the requirements of supervisors to ensure a safe workplace by providing clear work instructions, inspecting and monitoring workplace conditions, continuously evaluating worker performance and correcting unsafe acts, reporting and rectifying hazards, demanding compliance with safety rules and procedures. There was no evidence from Atlas that addressed that other than limited cursory information about some training of Mr Dempsey on the CTL-1 in Mr Condron's statement.
2. On page 41 of his report Mr Cockbain sets out 11 factors which contributed to Mr Dempsey's injury, including failing to carry out a risk assessment in respect of the work to be done, failing to warn and direct Mr Dempsey not to go into the area between the pinch roller and shear unit whilst the repair and testing of the CTL-1 was being carried out, failing to direct him to stand clear when testing until it could be ascertained that the CTL-1 was safe and operating normally, failing to develop implement and embed a safe method of carrying out the repair work on the CTL-1 and failing to instruct Mr Dempsey as to the manner in which he could safely assist in carry out the repair work on the CTL-1.
3. In his written submissions, Mr Dempsey stated that there "must be some liability in the second defendant by reason that the area between the pinch roller and the guillotine was "unguarded"." [58] A guard was put on later. [59] Another precaution included in the written submissions but not pleaded was that the lever should have been raised to prevent the metal being "pinched" and this would have prevented the stored energy building up when the metal went backwards.
4. I interpolate here that this last allegation is a hindsight criticism and was not pleaded. I reject this allegation, not that an additional allegation is needed to establish clear and cogent multiple breaches by Atlas of its duty of care to Mr Dempsey.
5. It was also submitted on behalf of Mr Dempsey that a clamp should have been used and that this is one of the precautions adopted by Atlas after the accident.

Atlas's submissions

1. Mr Rickard submitted on behalf of Atlas that its duty is not absolute. It is a duty to take reasonable care to avoid exposing the employee to unnecessary risk of injury: Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 at 98. The duty is non-delegable, but here, Mr Rickard submitted orally, the degree of possibility of injury being sustained that way was so low that there was no need to remove the pneumatic lever or put up a barrier over the space.

Decision on Atlas's liability

1. It is ironic that Atlas pleads in its Defence as a particular of contributory negligence that Mr Dempsey "failed to seek instructions", when it seems to me, given the nature and extent of the employer's duty of care owed to him in the circumstances, Atlas failed to provide him with any appropriate instructions either before or during this incident, despite a senior person, Mr Vincer, being present.
2. Training on the CTL-1 was brief and not documented. There were no standard operating procedures associated with the CTL-1.
3. Mr Cockbain says that cl 90(1) of the Occupational Health and Safety Regulation 2001 (NSW) required that a permanently fixed physical barrier be in place and that Atlas as employer should have provided appropriate and effective safe systems of work, and had a duty to prevent access to areas in which a person could be entangled in the working of the plant until such time as all damaging energies had been isolated and controlled.
4. Mr Cockbain also was of the opinion that there was an "inactive" approach to hazard identification by Atlas, and a lack of sound management and supervision for the safety of Mr Dempsey.
5. Whilst the focus of the concurrent expert evidence was Mr Blaik's role and liability, there was evidence directly relevant to Atlas's failures. Professor Fletcher would not accept that even if the metal was jammed in the CTL-1 that it could not be removed, stating it wasn't an excuse to fail to remove it, and despite the size of the metal sheet there should have been a mechanism for its recovery. [60] Dr Casey and Mr Cockbain were critical of the location of the lever on the side of the CTL-1, close to the unguarded gap, allowing release of the lever whilst able to stand in that area in the process line.
6. Steps taken to address the risks associated with the CTL-1 afterwards cannot be used as evidence of negligence but they can and, in this case, do inform the question of simple, cheap measures that Atlas could and should have taken to alleviate and/or remove the risk of injury. Mr Cockbain noted that after the accident a hard barrier had been installed at the area between the pinch roller and the guillotine and the pneumatic lever had been relocated to the operator's panel some distance away.
7. In the same vein, tendered in Mr Dempsey's case against Atlas was a memo from Mr Vincer to the WorkCover Inspector in which Mr Vincer listed various actions completed by 25 March 2010 which included the fixing of permanent guarding to prevent access to the area involved in the incident; relocation of the two manual pneumatic control valves onto the operator control consoles away from the machine and outside the light curtains; review of the safe operating instructions to include a warning about the potential for stored energy to be created in a metal sheet fixed in the CTL-1; and that each employee had been consulted and re-trained in the revised procedures and received their own personal copy of the revised procedures.
8. These measures are all cheap, simple and cost effective and illustrate systems and steps that could have been set up and taken by Atlas to obviate the risks to him posed by the CTL-1's operation on that day.
9. Various provisions of the Occupational Health and Safety Act 2000 (NSW) and clauses of the Occupational Health and Safety Regulation 2001 (NSW) are referred to in the allegations pleaded against Atlas. I do not need to deal with these individually other than to state that they relevantly inform the content of Atlas's duty of care to Mr Dempsey and illustrate simple measures that ought to have been taken.

Contributory Negligence

1. In finding as I have that Atlas was negligent, I need to assess whether, taking into account all relevant circumstances, Mr Dempsey's conduct amounted to "mere inadvertence, inattention or misjudgement", or to negligence. As explained by Windeyer J in Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37; [1964] HCA 16, a temporary inadvertence or inattention may nonetheless be "excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man".
2. As observed in Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [28]: "Most such cases involve employees (see for example Agresta v Agresta [2010] NSWCA 330 at [26]-[27]). True it is, as was emphasised in McLean v Tedman (1984) 155 CLR 306 at 315; [1984] HCA 60, that there is no special rule for employees involved in familiar and repetitive tasks".
3. Here the question is a different one, being circumstances where a piece of equipment with which the plaintiff was very familiar, was malfunctioning. The issue is, has the plaintiff taken that degree of care for his own safety that an ordinary reasonable person would take in the circumstances: Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [34], [38] and [70].
4. Atlas submitted that Mr Dempsey should bear 25% of the responsibility for his injury.
5. Mr Dempsey argued that there should be no reduction at all for contributory negligence. It was mere inadvertence. It was never put to Mr Dempsey that he ought to have known there was stored energy in the metal and if he lifted the lever, that stored energy would cause the metal to project forward.
6. I cannot accept there was no contributory negligence in circumstances where Mr Dempsey interfered with the pneumatic operation of the CTL-1 and inserted himself into the process line, without assessing the safety of the situation where the CTL-1 had just acted unpredictably in sending the metal sheet in reverse. He knew the sheet of metal was in the machine. He knew, or ought to have known, that by lifting the lever, he was releasing the hold of the pinch roller on the metal. He ought to have appreciated the risk he was about to create by the combination of lifting the lever and stepping into the space in the process line. There was evidence from Mr Dempsey that he would be required to go into that space to collect tail ends of coils, but those circumstances described suggest that this is when the sheet has already gone through rollers and through the shear, not when it is stuck in the roller with the front edge of it still in the pinch roller.
7. On the other hand, Mr Vincer was present and was a senior person who had operated the CTL-1 in the past. He gave no supervision or guidance to the plaintiff. This is a significant matter given the CTL-1 was malfunctioning. There was no evidence at all called from Mr Vincer. There was no evidence that he was unavailable; Atlas simply did not call him to give evidence. I am entitled to and I do draw an inference that evidence from Mr Vincer would not have assisted Atlas's case on this issue: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
8. It seems to me an apportionment that requires Atlas to bear 90% and Mr Dempsey to bear 10% is a just and equitable apportionment, having regard to the relative contributions of the parties to Mr Dempsey's injuries.

Mr Blaik's cross-claim against Atlas

1. Mr Blaik sought contribution and indemnity from Atlas pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and relies on s 151Z of the Workers Compensation Act 1987 (NSW) to reduce his liability, if any, to reflect the negligence of Atlas as Mr Dempsey's employer, and for there to be a consequent reduction in damages reflective of Atlas's liability.
2. Given my conclusion that Mr Blaik is not liable to Mr Dempsey, there is no requirement to conduct the s 151Z exercise, nor is there available any basis upon which to do so. The same position applies to apportionment pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act.

Orders 1. I enter verdict and judgment for the first defendant as against the plaintiff. 2. I enter verdict and judgment for the plaintiff as against the second defendant for 90% of the damages agreed between them. 3. Given the agreements reached between the parties as to damages, the parties are to within 7 days, provide short minutes of order reflecting my judgment. 4. The parties are to agree upon a date for listing of the matter in the next 4 weeks for argument regarding costs.

Endnotes

1. T52.50-T53.04.
2. T111.40.
3. T159.14-19.
4. T178.27-30.
5. T179.44-47.
6. T186.21-27.
7. T187.24-29.
8. T187.27-42.
9. T198.04-15.
10. T204.43-44.
11. T204.50-T205.05.
12. T236.40-T237.25.
13. T245.
14. T241.30-37.
15. T244.8-15.
16. T248.44-T249.14.
17. T184.32-T185.12
18. T254.09-17.
19. Paragraph [92] of the report.
20. Paragraph [19] of Professor Fletcher's 2016 report.
21. Paragraph [28] of Professor Fletcher's 2016 report.
22. Paragraph [32] of Professor Fletcher's 2016 report.
23. Paragraph [33] of Professor Fletcher's 2016 report.
24. Paragraph [33] of Professor Fletcher's 2016 report. (Emphasis added).
25. Paragraph [40] of Professor Fletcher's 2016 report.
26. Paragraph [39] of Dr Casey's report.
27. Paragraph [50] of Dr Casey's report.
28. Paragraph [57] of Dr Casey's report.
29. T333.22-24.
30. T339.19-22.
31. Paragraph [68] of Dr Casey's report.
32. T314.43-45.
33. T315.11-43.
34. T342.
35. T342.2 - T343.10.
36. T286.44.
37. T333.
38. T335.
39. T335.
40. Plaintiff's written submissions at paragraph [32].
41. Plaintiff written submissions at paragraph [9].
42. T480.14.
43. Paragraphs [38] to [40] of the plaintiff's submissions.
44. T500.51.
45. T178.30.
46. Paragraph [37] of the plaintiff's written submissions.
47. T336.07.
48. T302.10 and T317.40.
49. T333.4.
50. T340.25 and T340.30.
51. T338.45.
52. T250.04.
53. Paragraph [40] of the plaintiff's submissions.
54. Paragraph [42] of the plaintiff's submissions.
55. Paragraph [40] of the plaintiff's submissions.
56. T53.31-32.
57. Paragraphs [43] - [44] of the plaintiff's written submissions; T105 - T106; T108.40.
58. Paragraph [47] of the plaintiff's written submissions.
59. T116.11.
60. T344-T346. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 June 2019