Estate of the Late M T Mutton by its Executors & R W Mutton trading as Mutton Bros v Howard Haulage Pty Limited

Civil Liability Act 2002 (NSW), s 3B(1)(f) Factories, Shops and Industries Act 1962 (NSW), ss 27(1)(d), (5) Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Motor Accidents Act 1988 (NSW) LEGISLATION CITED: Occupational Health and Safety Act 2000 (NSW), ss 8(1), (2), 10, 12, 28, 32, 108(1), (6) Occupational Health and Safety Regulation 2001 (NSW), cll 5, 6, 9, 11, 45(a), 90, 135, 136(3)(d), 353, Sch 2 Workers Compensation Act 1987 (NSW), ss 151G, 151Z(1)(d), (2)(c), (d) Workers Compensation Regulation 2003 (NSW), cll 89, 90(1),(2), 91 Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Andar Transport Pty Limited v Brambles Limited (2004) 217 CLR 424 Atkinson v Gameco (NSW) Pty Limited [2005] NSWCA 338 Bourke v Victorian Workcover Authority [1999] 1 VR 189 Clout Industrial Pty Limited (in liq) v Baiada Poultry Pty Limited (2004) 61 NSWLR 111 Council of the Municipality of Waverley v Lodge [2001] NSWCA 439 Czatyrko v Edith Cowan University (2005) 79 ALJR 839 Ferraloro v Preston Timber Pty Limited (1982) 56 ALJR 872 Forstaff Blacktown Pty Limited v Brimac Pty Limited (2005) 4 DDCR 179 Grljak v Trivan Pty Limited (1994) 35 NSWLR 82 Harrison v Lau Nay Nominees Pty Limited [2004] NSWCA 18 James Hardie and Company Pty Ltd v Wyong Shire Council (2000) 48 NSWLR 679 Kelman v Mutton; Howard Haulage Pty Limited v Mutton [2007] NSWSC 13 King v The Queen (2003) 215 CLR 150 CASES CITED: Liftronic Pty Limited v Unver (2001) 75 ALJR 867 McLean v Tedman (1984) 155 CLR 306 Nicol v Allyacht Spars Pty Limited (1987) 163 CLR 611 Roads & Traffic Authority of New South Wales v Dederer (2007) 81 ALJR 1773 Roads and Traffic Authority v Ryan; Blue Mountains City Council v Ryan (2005) 62 NSWLR 609 Rolls Royce Industrial Power (Pacific Limited) v James Hardie and Company Pty Limited (2001) 53 NSWLR 626 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Sinclair v William Arnott Pty Ltd (No 2) (1963) 64 SR (NSW) 88 Smith v Austin Lifts Limited [1959] 1 WLR 100 Sovar v Henry Lane Pty Limited (1967) 116 CLR 397 Taylor v Sims & Sims (1942) 167 LT 414; [1942] 2 All ER 375 Vairy v Wyong Shire Council (2005) 223 CLR 422 Van Der Sluice v Display Craft Pty Limited [2002] NSWCA 204 Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110 Wyong Shire Council v Shirt (1980) 146 CLR 40

Estate of the Late Maxwell Thomas Mutton by its Executors Hazel Mildred Mutton, Warren Maxwell Lee Mutton and Neal Bensley Mutton (First Appellant) PARTIES: Robert William Mutton trading as Mutton Bros (Second Appellant) Howard Haulage Pty Limited (Respondent)

COUNSEL: J E Maconachie QC/N E Chen (Appellants) A J Katzmann SC/D J Hooke (Respondent)

SOLICITORS: Kennedys Lawyers (Appellants) Edwards Michael (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20375/04; SC 20156/05

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC 13

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40067/07 CA 40163/07 SC 20375/04 SC 20156/05

SPIGELMAN CJ HODGSON JA IPP JA

Friday 7 December 2007 ESTATE OF THE LATE MAXWELL THOMAS MUTTON BY ITS EXECUTORS HAZEL MILDRED MUTTON, WARREN MAXWELL LEE MUTTON & NEAL BENSLEY MUTTON & ANOR v HOWARD HAULAGE PTY LIMITED Judgment 1 SPIGELMAN CJ: I have had the benefit of reading the judgment of Ipp JA in draft. His Honour sets out the relevant facts, the statutory provisions and the submissions. I have come to a different conclusion on the issue of liability.

Negligence 2 As Ipp JA indicates in detail the critical fact was the progressive reduction in the space between the rear of the trailer and the clutch on the auger as the tray of the trailer was progressively elevated. The accident occurred, on the evidence, when Mr Kelman stood up from the crouched position and took one step back. 3 The facts of this matter are closely analogous to the facts considered by the High Court in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839. In that case an employee was loading and stacking boxes onto the back of a truck when he stepped backwards from the tray to where he expected a mechanical lifting platform to be. Unknown to him, one of his co-workers had lowered the platform during the course of the loading operation. 4 The High Court held that the employer was in breach of its non-delegable duty to provide a safe system of work. In a joint judgment the Court said: "[15] There should have been in place a system of work designed to avoid the risk that a person required to step backwards and forwards on and from a moveable platform might do so without first looking behind him. The system of work necessarily had also to take into account that the task was a repetitive one to be performed in a diminishing space. Proper account of these matters was not taken by the respondent … [16] An employer has another obligation. It is to provide employees with suitable plant and equipment to enable them to carry out their work safely. This case could also be characterised as a case of a failure to do that. The simplicity and inexpensiveness of a warning device that could have been fitted, required that it be fitted here … … [18] … It was not a remote risk that the appellant might step back without looking behind him." 5 Paragraphs [15] and [16] are alternative bases for the finding, in the circumstances of that case, of breach by the employer of its duty of care to its employee. There is, of course, a significant difference in the present case. The activities of the Respondent's employees were to be conducted at different locations with a range of different equipment configurations to be supplied by the farmers. 6 It may be that, in this case, the second basis, i.e. the simplicity of the warning device identified in the Edith Cowan University case, would not apply. Nevertheless, an automated system for removing the tarpaulin has now been adopted and I can see no reason why this is not as simple as the warning device. 7 In any event, the requirement that the system of work take into account that the task involved work "to be performed in a diminishing space" is directly analogous. 8 It is of significance that the work in this case, unlike the Edith Cowan University case, was conducted on premises and, specifically, with equipment, provided by a third party. This is a relevant, but not determinative, consideration on the issue of breach. See Bourke v Hassett; Bourke v Victorian Workcover Authority [1999] 1 VR 189 esp at [41]-[42], as adopted in this Court in Atkinson v Gameco (NSW) Pty Limited [2005] NSWCA 338 at [18]-[19]. 9 Further analogy is provided by Andar Transport Pty Limited v Brambles Limited (2004) 217 CLR 424. In that case the High Court was concerned with a subcontractor who provided outsourced services to a third party to make deliveries to a range of sites. The Court determined that the subcontractor/employer (Andar) was liable for breach of its duty to provide a safe system of work and, accordingly, was liable to make contribution to the third party head contractor (Brambles), which had supplied the relevant equipment, being trolleys for the carrying of linen. Injury to the worker occurred because of a jamming of the trolleys while the worker did "load, deliver and unload the linen as directed by Brambles" [2]. 10 The High Court held that the employer Andar, "was obliged to take reasonable steps to ensure that the loading and unloading was carried out in a safe manner. That obligation in turn required Andar to develop, and maintain, a methodology or system which would achieve that result" [54]. 11 The High Court concluded that Andar failed to take reasonable steps to prevent the jamming of the trolleys. The joint judgment said: "[57] … It is not difficult to conceive of steps which reasonably could have been taken to reduce the likelihood of injury. Those steps might have involved a change in the design of the trolleys, a reduction in the amount of linen carried within them, or the alteration of the truck to ensure the correct placement of the trolleys during loading." 12 The position in the present case is, in my opinion, analogous to the position in the Edith Cowan University case and in Andar Transport. The particular matter relied upon by the Appellant as the breach, was the failure to adopt a practice of pulling back the tarpaulin prior to the progressive elevation of the trailer. On the evidence this is what other drivers who delivered wheat to this farm "usually did". 13 In my opinion, this is as simple an alternative as that considered in Edith Cowan University and Andar Transport. Furthermore, I can see no reason why a mechanical means of pulling back the tarpaulin and operated from the side, as was eventually adopted, was not reasonably required. 14 His Honour did not have regard, in my opinion, to the critical feature of the case, i.e. the progressive diminution of workspace and gave too much weight to whether the Respondent knew the clutch was unguarded. There had to be a power source and the worker was progressively coming closer to it and to any moving parts which may have been unguarded or inadequately guarded. 15 Although the particular circumstances and, accordingly, the degree of risk would clearly have varied from one point of delivery to another, nevertheless the basic difficulty of the progressive diminution of the workspace is a common factor which would arise at all sites. 16 The obligation of the employer to have regard to this risk is enhanced by the evidence that the employer was aware that "farm machinery … is some of the most dangerous equipment around and farmers are renowned for not adhering to all the safety requirements". 17 The only response to this risk by the employer was, I infer from Mr Kelman's express requirement and the subsequent memorandum, to require the presence of the farmer throughout the unloading. This did not, in my opinion, adequately discharge its duty of care. 18 It is true, as Ipp JA emphasises, that the nature of the operation to open and shut the gate required Mr Kelman to go into the same position as he went to for purposes of removing the tarpaulin. In my opinion, that fact does not absolve the company from liability for the circumstances that did in fact eventuate. 19 The obligation to go into that particular area on more than one occasion to manipulate the gate would probably, in my opinion, itself have been a breach of duty to take reasonable care. Because the accident did not occur in that way there was no exploration in the evidence of what other mechanisms for avoiding that particular mode of operation could have been adopted, whether by adopting a remote mechanical means for the operation of the gate or adopting a practice of requiring the power unit to be shut whilst this operation was conducted. 20 Suffice it to say that the fact that the accident could have happened in another manner, which arguably was itself negligent, does not absolve the employer from liability for what in fact happened. In any event, a direction with respect to the tarpaulin would have reduced the risk by removing one occasion on which the worker was exposed to it. 21 The appeal on negligence should be allowed.

Statutory Duty 22 The Respondent accepted at trial that each of cl 45(a) and cl 136(3)(d) of the Occupational Health and Safety Regulation 2001 ("the OHS Regulation") created a private right of action. The Appellants accepted that they were bound by the same regulation and, by asserting that the Respondent was in breach, necessarily accepted that they were also in breach. 23 My conclusion on the breach of a duty of care makes it unnecessary to consider the two bases upon which the Appellant alleges that there has been a breach of statutory duty. Nevertheless, as the matter may go further it is desirable to do so. 24 The principal thrust of the Respondent's submissions in this regard was to read into each relevant provision, by way of defence or qualification of the scope of the statutory duty, the defence found in s 28 of the Occupational Health & Safety Act. This approach is inconsistent with the reasoning of Kitto J, with whom Owen J agreed, in Sovar v Henry Lane Pty Limited (1967) 116 CLR 397 esp at 406. See also King v The Queen (2003) 215 CLR 150 at [49] and Andar Transport supra at [42]. 25 Although it is open to the High Court to adopt the dissenting reasoning of Taylor J in Sovar, this Court should follow Kitto J whose reasoning has been referred to with approval. 26 Furthermore, s 28 appears in Pt 2 of the Act and s 32(1)(b) provides: "32(1) Nothing in this Part is to be construed: … (b) as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceeding." 27 This section operates to the same effect as Sovar with respect to s 28. 28 No other basis for confining the civil liability for breach of statutory duty was identified. See the observations by Dawson J referring to "… a restriction of the civil liability for breach of statutory duty which courts have engrafted upon the statutory obligation. The courts, having created the liability, are able to confine it". Nicol v Allyacht Spars Pty Limited (1987) 163 CLR 611 at 624, approved in the joint judgment of the High Court in Andar Transport supra at [42]. 29 In another case, issues of the scope of the duty and the requisite standard of conduct may need to be addressed. The word "ensure" does not require conduct that is so impractical as to fall outside the scope of the intention of Parliament, imputed by the courts, to create a private right of action. For present purposes it is enough to conclude that the Respondent's submission that a test of 'reasonable practicability' can be adopted should be rejected. 30 In any event, my analysis of the breach of the duty of care must lead to the conclusion that it was reasonably practicable to comply with each provision either by: · Providing "sufficient workspace" (cl 45(a)); · Ensuring that Mr Kelman did "not pass in close proximity to … plant", when there was neither a guard in place nor a "safe system of work" in use. 31 If I were wrong on the negligence ground and breach was not established, the Respondent would still be liable under the more stringent requirements of statutory duty. 32 Ipp JA quotes an extract from Mr Kelman's evidence in which he answers: "I don't know" to the question: "Wouldn't you have to step back further than that to achieve a two metre backwards movement into the auger". The reference to two metres was derived from the estimate given by Mr Kelman as quoted by Ipp JA. 33 However, Mr Kelman gave clear evidence that he took only one step back: "Q And you stood up and took one step back, did you? A Yes. Q Did you step back as you stood up or after you had stood up? A I don't - I can't tell you. I don't know. I stepped back, I stepped back because I was under the truck. When they are up in the air, the back of them is on an angle and I stepped back and then straightened up to come out from behind the back of the truck. Q So, when you were crouched down, you would have been, subject to your body width, two metres from the mechanism on the auger? A Yes, yes." 34 Subsequently, he said: "Q So you crouched down and you have undone the three ropes on the driver's side? A Yes. Q And, as best you can tell us, you can't get straight up or your head would hit the tray? A Yes. Q So, what you do, you take a movement backward until your head has cleared the tray, then you get up? A Yes. Q When you speak of taking a step back, do you mean to describe taking a step back in order to clear, in order that your head might clear the bottom of the tray, or do you mean you took a step back, crouched down and stood up and took a step back and then everything went blank? A No, I stepped back, then stood up. Q Having stood up, did you take another step, as best as you can tell me? A Yes. Q Two steps. One in a crouching position in order that your head would clear the end of the tray? A Yes. Q Then you straightened up? A Yes. Q One step back? A Yes. Q The object being, I would imagine, to take a hold of the tarpaulin to move it up and over? A Yes." 35 There is, in my opinion, no real doubt that the distance was short, more probably than not only one step. His Honour set out the passages to which I have referred without comment, suggesting that he accepted it. 36 In circumstances where, after performing the required task Mr Kelman took only one step back, it cannot be said that there was "sufficient workspace" within the meaning of cl 45(a). In my opinion, the conclusion of Sully J that there was sufficient workspace was not open. 37 The Respondent relied upon the fact that the same task had been performed on numerous occasions over many years without incident. This, of itself, is not sufficient, even setting aside the evidence of Mr Mutton that "usually" drivers delivering grain to the premises did remove the tarpaulin first. As the High Court said in Andar Transport supra: "[57] … That a system has been in place for a significant period of time does not mean that an employer's obligations in respect of that system have been therefore complied with." 38 The authority which the High Court referred to for this proposition was Ferraloro v Preston Timber Pty Limited (1982) 56 ALJR 872. In that case a truck driver delivering timber to the premises of a third party was injured when climbing into a position on the tray of the truck in order to perform a function that was a necessary part of the delivery to release a lever which sprung upwards and struck him. The Court said at 873: "The inherent danger of the situation is not avoided or diminished by saying that it was necessary to place the dog clip near the top of the bundle in order to secure it, and that it was not unusual for the driver to take up a position on the tray in order to release the lever." 39 With respect to cl 136(3)(d) of the OHS Regulation in my opinion, Sully J erred in concluding that, as he had found there to be a safe system of work, the second of the two alternatives in that clause was made out. To find that the requirements of reasonable care were such that, in all the circumstances, there was no breach of the duty to provide a safe system of work does not answer the question of whether there was, objectively, a safe system of work within the meaning of the statute. 40 The duty under the regulation is to ensure that a person does not "pass in close proximity to" plant. Clearly, Mr Kelman did. It cannot, in my opinion, be said that the system of work was objectively safe in the absence of a guard. The space was too confined. 41 With respect to cl 136(3)(d) Ipp JA is of the view that it does not apply by reason of the introductory words: "if it is not possible to eliminate the risk of entanglement in plant with moving parts". The clause draws a clear distinction between 'eliminating the risk of entanglement' and 'controlling the risk of entanglement', by either a guard or a safe system of work. 42 Clause 11 establishes the distinction between "eliminate" and "control" of risks: "11(1) Subject to subclause (2), an employer must eliminate any reasonably foreseeable risk to the health or safety of: (a) any employee of the employer, or (b) any other person legally at the employer's place of work, or both, that arises from the conduct of the employer's undertaking. (2) If it is not reasonably practicable to eliminate the risk, the employer must control the risk." 43 The phrase "control of risks" is defined in cl 5 of the OHS Regulation as follows: "5(1) For the purposes of this Regulation an obligation to control a risk to health or safety (in any case in which the elimination of the risk is not reasonably practicable) is an obligation to take the following measure (in the order specified) to minimise the risk to the lowest level reasonably practicable: (a) firstly, substituting the hazard giving rise to the risk with a hazard that gives rise to a lesser risk, (b) secondly, isolating the hazard from the person put at risk, (c) thirdly, minimising the risk by engineering means, (d) fourthly, minimising the risk by administrative means (for example, by adopting safe working practices or providing appropriate training, instruction or information), (e) fifthly, using personal protective equipment. (2) A combination of the above measures is required to be taken to minimise the risk to the lowest level reasonably practicable if no single measure is significant for that purpose. (3) Any obligation in this Regulation to control a risk by taking specific risk control measures, or by taking specific risk control measures in a particular order, is in addition to the obligations referred to in subclauses (1) and (2)." 44 The distinction between "eliminate" and "control" appears in a number of places in the OHS Regulation. I am not satisfied that any kind of "guard" or "system of work" could completely "eliminate" all risk of entanglement between clothes and moving parts under power. When Dr Hill gave evidence about "Elimination of the hazard", quoted by Ipp JA, I do not believe he had the clear distinction which the Act draws in mind. Indeed, he described the guard subsequently installed as "suitable", when it clearly would not prevent clothes from coming into contact with moving parts in all situations. 45 This was, in my opinion, a situation in which cl 136(3)(d) did apply. 46 In any event, although not relied upon on the appeal in terms, if this proposition was made out then the end result would only have been that the Respondent was in breach of its obligation under cl 11 to eliminate the risk, which was reasonably foreseeable. This circumstance, even if not pleaded, means that even if there be no breach of cl 136(3)(d), that should have no bearing on determining what is a "just and equitable" contribution for purposes of s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. 47 If I had formed a different opinion on the cause of action in negligence, I would have upheld the appeal on the issue of breach of statutory duty.

Contribution 48 The breach by the employer of its non-delegable duty to the employee in negligence, and the breach of its statutory duty in the two respects identified, are significant breaches and made a contribution to the injury suffered by Mr Kelman. The Respondent was not entitled to rely on its insistence that the farmer be present as a full discharge of its non-delegable duty of care or of its strict statutory duties. This is not, in my opinion, an appropriate case in which to exempt the employer from liability pursuant to s 5(2) of the Law Reform Act. 49 However, I agree with Ipp JA that, overwhelmingly, the principal default was that of the Appellants, who were similarly in breach of their duty of care and in breach of each statutory duty. They owned and operated the machinery and the Second Appellant directly observed Mr Kelman at the relevant time pursuant to an express requirement that he be present. I agree that they should bear 80 percent of the blame. 50 I also agree with the reasons given by Ipp JA for concluding that the Respondent should not contribute to the costs the Appellants are required to pay Mr Kelman. In view of the outcome of the case, it is not necessary to formulate any order as to the computation of that amount. 51 With respect to the issue that has arisen under s 151Z(1)(d) of the Workers Compensation Act 1987, I agree with the reasons of Ipp JA. Again it is not necessary to formulate an order. 52 HODGSON JA: I have had the advantage of reading in draft the judgments of Spigelman CJ and Ipp JA. I agree with Ipp JA that the appeal should be dismissed, for the reasons he gives, and the following additional reasons. 53 The facts of this case are similar in many respects to those in Czatyrko v. Edith Cowan University [2005] HCA 14, (2005) 79 ALJR 839; but as both Spigelman CJ and Ipp JA have noted, there is the important difference that the accident in this case occurred at a property not under the control of the employer, by reason of a danger also not under the control of the employer, of which the employer had no knowledge. 54 Although the memorandum produced after the accident justifies a conclusion that the employer knew that there could be risks to employees from dangerous equipment operated by farmers, it does not justify a conclusion that the employer knew or ought to have known the particular nature of possibly dangerous equipment operated by different farmers to whom deliveries were made, the particular risks posed by whatever kinds of dangerous equipment different farmers had, or the particular precautions appropriate to minimise these risks. 55 The unguarded clutch mechanism in this case did pose a significant risk of injury; and the view of Spigelman CJ is that there had to be a power source in the vicinity of the unloading operation, and that the risk of unguarded or inadequately guarded moving parts, together with progressive diminution of the work space as the trailer tipped, would be a common factor at all sites. On that basis, the Chief Justice considers that a reasonable employer would have established a practice of pulling back the tarpaulin before the operation began. The circumstance that the worker would be exposed to a similar risk in manipulating the grain gate did not, in his view, absolve the employer from liability. 56 In my opinion, the circumstance that there was a similar risk in manipulating the gate is a significant consideration. A reasonable employer's assessment of the risk posed by the diminution of the work space due to the tilting of the trailer would be influenced by the absence of any accidents or reported near-misses from either pulling back the tarpaulin (which it seems was done during the operation only by the worker in this case, not by other drivers) or manipulating the gate (which had to be done a number of times during the operation, and presumably was done by every driver); and even if a reasonable employer came to the view that something needed to be done by reason of this diminution of the work space, it would in my opinion be that what was needed was to address both issues. The appellant did not rely on any allegation of negligence of that kind, but only on an allegation that it was negligent not to address separately, in a very particular way, the less prevalent aspect of the risk. Also, as Ipp JA has pointed out, the practice which the appellant claimed the employer should have adopted, as an unvarying practice, was one which may have had significant disadvantages in certain weather conditions. 57 In circumstances where no other allegation of negligence was made, in my opinion the primary judge was correct to conclude that negligence was not shown. 58 On the statutory count under cl.45(a), I agree with Ipp JA that the primary judge is not shown to have been in error in holding there was sufficient working space. 59 On the statutory count under cl.136(3)(d), it was never suggested by the appellant that it was not possible to eliminate the risk of entanglement in a plant with moving parts: indeed, it was conceded by the appellant that it was possible. Had an issue been raised on this, it could have been explored in evidence and submissions below; and in my opinion, a finding that it was not possible to eliminate the risk is not open. In those circumstances, in my opinion cl.136(3)(d) can have no application. 60 Turning to the question arising under s.151Z of the Workers' Compensation Act 1987, as I said in Clout Industrial Pty. Limited (In Liq) v. Baiadi Poultry Pty. Limited [2004] NSWCA 89, (2004) 61 NSWLR 111 at [73], s.151Z assumes the application of s.5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946, and modifies its operation in a limited way. 61 What s.5(1)(c) relevantly prescribes is that a tortfeaser liable in respect of damage (here, this would be the appellants, found to be liable to the extent of $650,000.00 plus costs) is entitled to recover contribution from any other tortfeaser who would if sued have been liable (here, if the appeal had succeeded, this would have been the respondent). The amount of the contribution specified by s.5(2) to be such as may be found by the Court to be just and equitable having regard to the extent of the other tortfeaser's responsibility for the damage. 62 Certainly this means that, if the responsibility of the respondent were assessed at 50% and the damages assessed in accordance with Division 3 were $500,000.00 (say), and leaving aside any question of costs, the contribution could not exceed $250,000.00. 63 One question then is whether, in such a case as this, the court hearing the contribution claim should undertake an ex post facto hypothetical exercise to divide an agreed global figure of $650,000.00 awarded against the person seeking contribution into one sum (say, $400,000.00) for matters recoverable under Division 3 and another sum (say, $250,000.00) for matters not recoverable under Division 3; and then on that basis reduce the contribution to $200,000.00, or some intermediate figure. As at present advised, I do not think so. It might be otherwise if the person seeking compensation had obtained, against the person seeking contribution, specified amounts for different heads of damages, which could be identified as either available or not available under Division 3. 64 Another question could arise if the Court hearing the contribution claim found that the damages assessed in accordance with Division 3 were greater than the previously agreed sum of $650,000.00, say $800,000.00. In that case, again assuming 50% responsibility, I do not think the contribution could be greater than $325,000.00 (possibly, plus some interest): I do not see how it could be "just and equitable" for a party liable in the sum of $650,000.00 to get contribution of $400,000.00 from a person whose responsibility was assessed at 50%. 65 IPP JA:

The claim, the cross-claims and the result of the trial 66 On 3 September 2001, Mr Antony Kelman, a truck driver employed by the respondent, sustained serious injuries in an accident that occurred on a farm owned by Mr Robert William Mutton and his late brother, Mr Maxwell Thomas Mutton (to whom, for convenience, I shall refer as "the appellants"). While offloading grain that Mr Kelman (as an employee of the respondent) was delivering to the appellants, his shirt became caught in an unguarded auger used in the offloading process. He was spun around violently and thrown to the ground. 67 Mr Kelman brought proceedings against the appellants for the damages he sustained in consequence of his injuries. The appellants cross-claimed against the respondent for an indemnity or contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) in respect of any amounts (including costs) which they might be ordered to pay Mr Kelman. The respondent, in turn, cross-claimed against the appellants for an indemnity under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) ("the WCA") in respect of payments of workers' compensation the respondent had made to Mr Kelman. The latter claim is not relevant to the appeal. 68 Mr Kelman alleged that the appellants caused his damages by their negligence in failing to have a safe system for receiving the delivery of the grain, alternatively by their breaches of cll 45(a) and 136(3)(d) of the Occupational Health and Safety Regulation 2001 (NSW) ("the OHS Regulation"). 69 The appellants' cross-claim against the respondent was based on the ground that the respondent, as Mr Kelman's employer, owed him a duty of care "to provide him with a safe place of work" which it had breached, alternatively on the ground that the respondent had breached s 8(1) of the Occupational Health and Safety Act 2000 (NSW) ("the OHS Act") and cll 9, 45(a) and 136(3)(d) of the OHS Regulation. Only the breaches of cll 45(a) and 136(3)(d) are relevant to the appeal. 70 At the commencement of the trial, counsel for the appellants informed the trial judge, Sully J, that the action between Mr Kelman and the appellants had been settled and sought leave "to hand up and file in Court an agreement as to judgment". His Honour granted leave and ordered that there "be judgment in accordance with the terms of settlement which I have initialled and dated". The settlement agreement is not before this Court but it is common ground that, in terms thereof, judgment was entered in favour of Mr Kelman for an amount of $650,000 plus costs. 71 After the trial was concluded, Sully J dismissed the appellants' cross-claim against the respondent for an indemnity or contribution (see Kelman v Mutton; Howard Haulage Pty Limited v Mutton [2007] NSWSC 13). It is this decision that principally gives rise to the appeal.

The issues on appeal 72 The appellants appeal against the dismissal of their cross-claim against the respondent. The respondent cross-appeals "in the event that the appeal against the judgment on the appellants' claim for contribution is upheld". 73 The appeal raises the following principal issues:

(a) Whether the respondent breached the duty of care it owed Mr Kelman.

(b) Whether the respondent breached cll 45(a) and 136(3)(d) of the OHS Regulation.

(i) What apportionment should be made. (ii) Whether the appellants are entitled to a contribution from the respondent towards the costs they were required (by the consent judgment) to pay Mr Kelman in respect of the claim brought by him against them. 74 The cross-appeal raises the issue whether the contribution payable by the respondent under s 151Z(2)(d) of the WCA is to be proportionate to the relevant heads of damage making up the global judgment award of damages that the appellants, as non-employer tortfeasors, were ordered to pay the injured plaintiff.

The businesses of the respondent and the appellants and the experience of Mr Kelman 75 The respondent conducted a transport and haulage business. While Mr Kelman was working for the respondent, it operated about 30 trucks and employed about 35 drivers. It had an office staffed by about seven persons. Mr Les Howard owned the respondent company and he, together with his two sons, worked in the office. Their main task was to allocate the loads. They were the "bosses". 76 The respondent's trucks and trailers transported grain, fertilisers and gravel to properties all over New South Wales, and to Queensland, Victoria and South Australia. The deliveries were made to destinations "spread far and wide all up the eastern half of Australia". 77 At the date of the accident (3 September 2001), Mr Kelman was 38 years of age. Before about 1990 or 1991, he secured a heavy vehicle driver's licence. From then on, for some nine years, he worked for various companies, driving heavy vehicles. In 1999 he began working for the respondent. He was licensed to drive "B-double" trailers (trucks that hauled two trailers) and the respondent employed him to drive vehicles of this kind. Typically, he worked from 50 to 70 hours a week. Mr Kelman acknowledged that, by the time he came to work for the respondent in 1999, he was "a very experienced truck driver". 78 At the inception of Mr Kelman's employment with the respondent in June 1999, he had an interview with Mr Luke Howard. In the course of the interview they discussed Mr Kelman's experience as a driver, the sort of loads he had worked with and the fact that he had worked with augers and other aspects of his experience. Mr Kelman made it clear to Mr Howard that he was "heavily experienced both as a truck driver and in the use of augers and that type of equipment". 79 As from about 1994 Mr Kelman worked with grain loads that were both loaded and unloaded with the use of augers. By 1995 he was using augers at least a couple of times a week. After he commenced working for the respondent, the use of augers to both load and offload his truck became, for him, "pretty much a daily event". 80 The respondent did not give Mr Kelman any instructions about how to unload grain when making deliveries to farms and as to when and how he should remove tarpaulins from trailers. 81 Mr Kelman knew that augers were a dangerous form of equipment and he had heard about people getting caught in them and being severely injured, if not killed. He was very much aware of the danger of part of his clothing being caught in an auger and he knew, every day he went to work, that this danger existed. He agreed that he was always conscious of this danger when he was "working around". He knew that augers were something that he had to stay well clear of when he was working "around them". 82 The appellants were brothers who owned a farm near Maitland, New South Wales in partnership. Since 1979, they had conducted a dairy business on their farm and had had grain delivered to them by the respondent. 83 Each year between 1979 and September 2001, the respondent made about four to five deliveries of grain to the appellants' farm. On each occasion, a truckload - about 26 tonnes - would be delivered. Over the years, several drivers undertook the deliveries on the respondent's behalf. Mr Kelman, however, had not delivered grain to the appellants prior to the delivery on 3 September when the accident occurred.

The grain offloading equipment 84 The appellants stored the grain the respondent delivered to their farm in a silo. The grain would be transferred (by the force of gravity) from the respondent's trailer into the hopper. From the hopper, the grain would be drawn by an auger into the silo. The auger was powered by a tractor to which a "power take-off shaft" was connected. 85 An auger is a screw inside a long cylinder that passes from the silo to a hopper. An unguarded rotating coupling or clutch joined the power take-off shaft to the appellants' auger. In other words, the power take-off shaft hooked up and connected to the auger at the unguarded clutch. 86 I now propose to refer to various measurements that are derived from the transcript. The measurements, in an indiscriminate way, are, at times, metric, and, at other times, Imperial. That is merely a reflection of the evidence. 87 The power shaft was about one-and-a-half metres long and had a universal joint at each end to allow angular misalignment. The unguarded clutch was about five feet off the ground. Part of it consisted of six bolt and spring combinations that protruded 50 millimetres away from the shaft. An expert, Dr Hill, expressed the opinion: "There is a high probability that loose clothing would become caught up [in the clutch] if a person were to inadvertently stand too close. This hazard should have reasonably been identified even by a lay person such as the owners of the equipment".

After the accident, a metal guard was placed over the clutch. 88 The appellants had used their auger for about 22 years. The power take-off shaft had been in use for about ten years. In the 22 years that grain had been delivered to the appellants' farm, there had been no complaints about the dangers posed by the unguarded clutch, no injuries associated with the clutch and no near misses.

The truck and trailer 89 The truck Mr Kelman was operating at the time of the accident was a large B-double trailer comprising a cabin and two large trailers that contained the load of grain. The vehicle, as a whole, was about 25 metres long. The sides of the trailers were six feet high. The trailers were about eight feet (2.4 metres) wide. 90 The tailgate at the rear of each trailer had within it a small door (a grain door). The grain door was about 500 millimetres squared. It was opened and closed by a handle attached close to its right-hand-side (looking at the trailer from the rear of the vehicle). Its purpose, when opened, was to allow grain to be transferred through it to a hopper. 91 All the respondent's trailers were equipped with tarpaulin covers. The purpose of these covers was to protect the load. Part of Mr Kelman's work was to affix the tarpaulin onto the top of the trailer once it was loaded. A tarpaulin covered the load that Mr Kelman delivered to the appellants. According to Mr Kelman the covering of the load in this way, and the method by which the tarpaulin was secured by ropes and hooks, were standard in the industry at the time (although at about that time the use of tarpaulins with a roller attached was first "starting to come in"). 92 A photograph (Exhibit CD1) of a similar (but not the same) trailer operated by Mr Kelman on the day of the accident was in evidence. The trailer is shown covered by a tarpaulin. The photograph shows four ropes dangling from the rear end of the tarpaulin, which extends over the rear tailgate. One rope is on each side of the rear end of the tarpaulin (as it hangs over the rear of the tailgate) and two are towards the centre of the tarpaulin, some distance apart. The purpose of these ropes is to attach the rear of the tarpaulin to the trailer. 93 The photograph shows two hooks on the tailgate on either side of the grain door. One hook is on the left of (and close to) the top left corner of the grain door and the other hook is in a similar position on the side of the top right corner of the grain door. A loop is attached to each of the two ropes dangling from the middle of the tarpaulin and each loop has been slid over a hook. By these means these two ropes assist in affixing the tarpaulin to the trailer. It is not clear how the two ropes on the sides of the tarpaulins are affixed to the trailer. 94 The photograph was initially tendered to show the handle on the right-hand-side of the grain door and a winding mechanism for the tarpaulin that was introduced on the respondent's trailers after the accident. The photograph was shown to Mr Kelman and he was questioned by counsel appearing for the appellants at the trial about the grain door, but not about the ropes and hooks shown on the photograph. He was also shown the photograph by counsel appearing for the respondent at the trial. He was asked about the handle of the grain door shown in the photograph and where he stood in relation to the grain door when he was opening or closing it. He was not asked about the ropes and the hooks on the photograph. The photograph is described in the transcript as "showing a close-up of the mechanism". The case was argued on appeal on the basis that, while recognising that the trailer in the photograph was not the trailer involved in the accident, the photograph illustrated (more or less) the configuration of the ropes as they were on the trailer Mr Kelman was operating. 95 Mr Kelman was asked in evidence-in-chief, "[d]o you remember how many or whether you undid a number of ropes", to which he replied, "[t]here was [sic] three ropes on each side". There is, thus, uncertainty about the number of ropes extending from the tarpaulin on the trailer when the accident occurred.

The accident 96 When Mr Kelman arrived in his vehicle at the appellants' farm he backed down the laneway for about 70 to 80 metres. Mr Robert Mutton directed him in carrying out this manoeuvre. Mr Mutton guided Mr Kelman into the final position where Mr Kelman parked the vehicle so that he could unload the grain into the hopper. Mr Mutton did this by signalling to Mr Kelman with his hands and holding up his hand to indicate to Mr Kelman to stop when he came sufficiently close to the hopper. 97 Mr Kelman stopped the truck at a point where the back of the rear trailer was about two metres away from the clutch mechanism of the auger and about six inches to one foot short of the hopper (he said it was "pretty well near up over the hopper"). He made sure that the grain door was lined up with the hopper. 98 The hopper was about three feet wide. The tray of the trailer was about eight feet wide and, when the trailer stopped in front of the hopper, the hopper was positioned approximately in the centre of the trailer. It follows that the distance from each side of the hopper to the corresponding side of the trailer was about two-and-a-half feet. 99 The tarpaulin covered the entire load and, at that stage, was affixed to the trailer by the ropes to which I have referred. The tarpaulin extended over the sides of the trailer and the tailgate by about a foot to 18 inches. 100 Mr Mutton had earlier set up all the appellants' equipment necessary to carry out the unloading operation. 101 Once the rear of the tray had been brought up to the hopper in the required position, Mr Mutton started the tractor and engaged the auger. This was the general system that was used for offloading the grain. The truck driver would operate the truck and Mr Mutton would operate the tractor and the auger. 102 Mr Mutton or his brother would always be present when the grain was delivered. Indeed, one of the respondent's drivers had made a point of saying that he would not offload the grain unless either Mr Mutton or his brother was there. 103 Mr Kelman elevated the tray of the trailer so that it was at an incline with the grain door over the hopper. He then opened the grain door to enable the grain, by the force of gravity, to flow into the hopper. 104 The elevation of the front part of the tray (that is, the part furthest away from the hopper) caused the rear of the tray (that is, the part nearest the hopper) to be proportionately lowered. The effect of elevating the trailer also caused the top of the grain door to move towards the hopper by a few inches. 105 Mr Kelman and Mr Mutton stood at the rear of the truck watching the grain flow out of the grain door and into the hopper. Mr Mutton remained there throughout the course of the offloading process. 106 From time-to-time Mr Kelman was required to elevate the tray further so as to enable the grain to continue to flow into the hopper. About ten minutes after he had elevated the tray for the third time, he decided to move the end of the tarpaulin (at the lowest part of the inclined trailer) some distance away from the edge of the trailer. This would bring about a gap between the top of the tailgate and the tarpaulin. Mr Kelman intended to climb through this gap into the trailer in order to shovel the remaining grain into the hopper. 107 Mr Kelman was not asked why he left the tarpaulin covering the entire trailer during the offloading process. Mr Mutton said that, after the accident, the ropes of the tarpaulin were "flying in the breeze" and mentioned on two other occasions during his evidence that it was a "windy day". It is open to inference that it was because of the wind that Mr Kelman left the tarpaulin over the entire load until the last stage of the offloading process. 108 The following exchange occurred in the course of Mr Mutton's evidence in relation to the general practice with regard to the removal of tarpaulins: "Q. Prior to Mr Kelman arriving on 3 September 2001, had you noticed anything about what other drivers had done in relation to the tarpaulin prior to parking the truck near the hopper? A. Well usually they backed in, and before they backed it into the hopper they used to undo the tarp and roll it back a metre or so, so that they could get the grain out later, and then back the truck in and unload it." 109 To move the tarpaulin, Mr Kelman first had to remove the ropes that affixed it to the trailer. This included removing the loops (to which the two ropes in the centre of the tarpaulin were attached) from the hooks adjacent to the top of each side of the grain door. Mr Kelman had to crouch down and move, in a crouching position, under the depressed tray to get to the hooks. 110 He began by moving under the right-hand-corner of the trailer towards the hook on the right-hand-side of the grain door. 111 Mr Kelman was asked: "Suppose there had not been an accident, then you would have to go around to do the same thing on the other side?" He replied in the affirmative. As I have mentioned, he said that there were three ropes "on each side". He agreed that he undid the ropes on the driver's side (that is, the right hand side). Mr Kelman did not undo any of the ropes to the left of the grain door. For the reasons I have explained, it is uncertain how many ropes Mr Kelman in fact undid on the right side of the grain door. 112 Having removed the ropes on the driver's side, Mr Kelman, while crouching down, stepped back and stood up. The following exchange occurred in the course of his evidence: "Q. Two steps, one in a crouching position in order that your head would clear the end of the tray? A. Yes. Q. Then you straightened up? A. Yes. Q. One step back? A. Yes." 113 As he was crouching down Mr Kelman was facing the back of the truck. He said: "I stepped back and then straightened up to come out from behind the back of the truck." Mr Kelman said that, while he was crouched down, he was two metres away from the clutch mechanism (subject to his body width). As he stepped back and stood up he did not stumble or lose his balance. 114 In his evidence-in-chief, Mr Kelman, in answer to a leading question, agreed that he attempted to remove the tarpaulin. He was asked where he went "first to seek to take the tarpaulin off the back of the trailer". He replied, "On the right-hand side of the trailer". Shortly thereafter he said, "I undone [sic] the hooks across the back and then I stepped back to throw the tarp up on top of the trailer." He was intending to "[t]hrow the tarp up so I would climb in the back". In cross-examination he said that he did not throw the tarpaulin up before coming into contact with the auger. When he came in contact with the auger he was immediately rendered unconscious. 115 Mr Mutton saw Mr Kelman untie the tarpaulin rope and understood that he was doing this so that he could climb into the trailer "and scoop the rest of the grain out of the back of the truck" with a hand shovel. Mr Mutton only saw Mr Kelman "remove the first rope". He saw Mr Kelman take a normal step back and the next thing was that Mr Kelman was lying on the ground. 116 Mr Mutton agreed that between moving from the back of the truck and coming into contact with the clutch Mr Kelman "covered something slightly under a couple of metres" 117 It did not occur to Mr Mutton to stop the auger while Mr Kelman was untying the ropes as, he said, untying the ropes at that stage of the process had "never been done before". Mr Mutton, however, did not see any risk involved in Mr Kelman undertaking this activity and he agreed that it "seemed a perfectly sensible and reasonable way of doing the job". It never occurred to Mr Mutton that the clutch was a potential source of danger. 118 At the time of the accident, Mr Kelman was wearing jeans, a collared short-sleeve shirt and a flannelette jacket. It was common ground that part of Mr Kelman's clothing became caught in the exposed rotating part of the clutch. He said that his clothing had not been "flapping around" in the wind. 119 After the accident occurred, Mr Mutton telephoned Mr Howard and told him that it was "a windy day" and that the truck was still tipped up. Mr Howard sent another employee to move the trailer down and take the vehicle away. Later, Mr Mutton fitted a guard to the clutch.

The trial judge's reasons 120 Sully J found that a person of Mr Kelman's height, experience and intelligence, and practical good sense, could not have been unaware that the clutch mechanism was rotating as an essential feature of the operation of the auger; that it was unguarded; and that he needed to be careful to keep his distance from it (at [10]). 121 After recounting the facts in detail, his Honour said (at [40]): "All of the foregoing facts and circumstances concern the position obtaining on 3 September 2001 as between the [respondent] and Mr Kelman. The overall picture thus painted is in my opinion one of a sensible, experienced and reliable employee making a routine delivery of what was in his own perception, and I infer in the perception also of the relevant servants and agents of the [respondent], an unremarkable consignment which would be unloaded in an unremarkable way and into machinery supplied by the [appellants], being machinery of a kind with which he was familiar and the potential dangers of which were well known to him." 122 The appellants argued at trial that the respondent was in breach of its common law duty of care to Mr Kelman because it had permitted him to work around unguarded machinery and because it had failed to provide a safe system of work "in relation to the removal of the tarpaulin from the truck prior to the removal of the grain" (see at [42]). The first particular was not agitated on appeal. Sully J understood the second particular "to convey that a safe system of work would have entailed a requirement by the [respondent] that any driver in Mr Kelman's position would remove the tarpaulin prior to commencing the process of removal of the grain" (at [42]). The appellants argued that the respondent had simply left Mr Kelman to his own devices. 123 In regard to these arguments Sully J said (at [47]) that there was "a common-sense gap in the reasoning". His Honour observed: "That gap derives from the absence alike of any allegation, and of any evidence capable of supporting an allegation, of any prior knowledge whatsoever in the [respondent] of the existence of the unguarded clutch, let alone of anything more particular about its operation and about any resulting reasonably foreseeable dangers to Mr Kelman on 3 September 2001". 124 In regard to the proposition that the respondent ought to have had that knowledge because it ought to have made its business "to inquire, to inspect, or both to inquire and inspect, with at least some regularity", his Honour said that there was a short answer to these submissions. That was, in his Honour's words (at [48]): "[T]here is no evidence to support it: no evidence of warnings; no evidence of some other facts or circumstances such as reasonably to put on notice of existing or potential avoidable risk; and no evidence of any relevant industry, or indeed industrial, practice."

His Honour said that it was "artificial and unconvincing" to rely on imputed or constructive relevant knowledge. 125 His Honour then went on to deal with two other arguments the appellants raised. The first of these was that the respondent should have given Mr Kelman directions and instructions about not approaching the rear of the truck to remove the tarpaulin whilst the machinery was in operation. The second argument was that the respondent should have given Mr Kelman instructions and directions to remove the tarpaulin prior to commencing the unloading process. His Honour said that, generally, the reasons he had already given applied to these arguments but he observed additionally that Mr Mutton said: "the way in which Mr Kelman went about rolling back the tarpaulin seemed to him to be 'a perfectly sensible and reasonable way of doing the job'" (at [49]). 126 His Honour then went on to deal with the breach of statutory duty causes of action relied on by the appellants. Two of these remain relevant in this appeal. The first is a cause of action based on a breach of cl 45(a) of the OHS Regulation that provides that an employer "must ensure that sufficient working space is provided to allow persons to work safely". The second is a cause of action based on a breach of cl 136(3)(d) of the OHS Regulation which provides: "(3) An employer must ensure in relation to use of plant that: … (d) if it not possible to eliminate the risk of entanglement in plant with moving parts, persons do not operate, or pass in close proximity to, the plant unless the risk of entanglement is controlled by guarding that meets the requirements of clause 90(1) or the use of a safe system of work."

Clause 90 of the OHS Regulation sets out certain "risk control measures" that a designer of plant must implement to prevent or reduce access to "a danger point or area". 127 As regards cl 45(a), Sully J held (at [63]): "The evidence as to spaces and distances is inexact; but, such as it is, it does not satisfy me that the space allowed between the rear of the discharging tray and the moving parts of the unguarded clutch was insufficient to allow Mr Kelman to do his work safely." 128 As regards cl 136(3)(d) his Honour said (at [64]): "[T]he alleged breach as actually pleaded sets up a contravention of one only of two ways in which a relevant employer can lawfully deal with a situation in which 'it is not possible to eliminate the risk of entanglement in plant with moving parts'. I have previously found that the system of work provided by the [respondent] for Mr Kelman was, in my opinion, not an unsafe system. That finding suffices, in my opinion, to satisfy the requirements incompletely pleaded, of clause 136(3)(d)." 129 Sully J accordingly held that the respondent had not breached the duty of care it owed Mr Kelman and had not committed any breach of the statutory duties relied on by the appellants. For that reason, he did not go on to make any apportionment of fault as between the appellants and the respondent (that is, in terms of s 5 of the Law Reform (Miscellaneous Provisions) Act). 130 By reason of the conclusion to which he had come, his Honour was strictly not required to deal with the respondent's argument concerning s 151Z(2)(d) of the WCA. Nevertheless, his Honour did so. He considered that he was bound by Roads and Traffic Authority v Ryan; Blue Mountains City Council v Ryan (2005) 62 NSWLR 609, and said (at [91]): "[I]n a case such as the instant case the amount of the principal judgment is the amount to which any percentage figure fixing the level of statutory contribution by a joint tortfeasor, is to be applied; and … the only qualification is that the resulting figure must not exceed the figure representing a reasonable assessment, on the basis of 100 per cent liability, of the [respondent's] liability to pay damages as capped by statute." 131 His Honour accordingly rejected the respondent's proposition that any contribution that might be payable by it to the appellants was to be proportionate to the relevant heads of damage making up the consent judgment sum of $650,000 ordered in favour of Mr Kelman against the appellants. 132 His Honour gave judgment for the respondent on the cross-claim for statutory contribution and ordered the appellants to pay the respondent's costs of the cross-claim.

The issues on appeal 133 The appellants contend that his Honour erred in failing to find that the respondent breached the duty that it owed Mr Kelman to take reasonable steps to provide him with a safe system of work. The only particular agitated by the appellants on appeal was that the respondent negligently failed to instruct Mr Kelman to remove the tarpaulin from the trailer before offloading the grain. 134 At one point the appellants submitted that the respondent should have instructed its employees that if they saw unguarded machinery they should do nothing until they made contact with the respondent's office, but the appellants did not persist with this contention. When asked whether the appellants were relying on any breach of duty other than the failure to instruct employees to remove the tarpaulin before offloading the grain, Mr Maconachie QC, who, together with Mr Chen, appeared for the appellants, replied in the negative. 135 The appellants contended that Sully J had erred in failing to find that the respondent breached cl 45(a) of the OHS Regulation in not providing sufficient working space to allow Mr Kelman to work safely between the rear of the tray and the auger. 136 The appellants also argued that his Honour erred in failing to find that the respondent had breached cl 136(3)(d) of the OHS Regulation (and in finding that, because the system of work provided by the respondent was "not an unsafe system", there had been no breach of cl 136(3)(d)). 137 The appellants submitted that, if this Court upheld the appeal, it should proceed to make an apportionment under s 5 of the Law Reform (Miscellaneous Provisions) Act. 138 The respondent contended that, should such an apportionment be made, there was no basis under s 5 for the Court "to order that the respondent contribute to the costs the appellants agreed to pay [Mr Kelman]". The appellants disputed this proposition. 139 The respondent filed a cross-appeal that it only pursues in the event that the appeal against the judgment on the appellants' claim for contribution is upheld. The principal issue on the cross-appeal is encapsulated by the following propositions contained in the respondent's written submissions: "Section 151Z(2)(d) of the [ Workers Compensation Act ] required that the respondent's contribution be limited to a proportion of the damages as assessed under the [ Workers Compensation Act ] ('work injury damages') (Red 84, [91]). Yet the primary judge held that he was bound by the decision of this Court in Roads and Traffic Authority v Ryan (2005) 62 NSWLR 609 to hold that the determination of the respondent's contribution to the damages the appellants paid to [Mr Kelman] was to be fixed as a proportion of the total damages paid rather than as a proportion of the work injury damages. In so doing he fell into error."

The duty of care owed by the respondent to Mr Kelman 140 The relevant basic general principles were set out by the High Court in Czatyrko v Edith Cowan University (2005) 79 ALJR 839 (at 842 to 843, [12]) as follows: "An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work." 141 In Czatyrko v Edith Cowan University, the appellant, an employee of the respondent, was required to load boxes on a truck parked at the respondent's premises. The truck was fitted with a mechanical lifting platform. When the appellant stepped backwards from the tray of the truck to where he expected the platform to be, he fell to the ground and was injured. The fall was caused by the platform being lowered without the appellant being informed. The High Court found that the respondent had failed to adopt a safe system of work, saying (at 843, [15] to [16]): "[15] There should have been in place a system of work designed to avoid the risk that a person required to step backwards and forwards on and from a moveable platform might do so without first looking behind him. The system of work necessarily had also to take into account that the task was a repetitive one to be performed in a diminishing space. Proper account of these matters was not taken by the respondent … [16] An employer has another obligation. It is to provide employees with suitable plant and equipment to enable them to carry out their work safely. This case could also be characterised with a case of a failure to do that. The simplicity and inexpensiveness of a warning device that could have been fitted, required that it be fitted here. … The respondent was negligent." 142 See also McLean v Tedman (1984) 155 CLR 306 (at 313) where the employer's duty to establish, maintain and enforce a safe system of work was emphasised and where it was noted that: "[I]n deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands." 143 Due regard, however, must be had to the fact that the accident occurred at a place of work under the control of a third party: Glass, McHugh and Douglas, The Liability of Employees in Damages for Personal Injury (2nd ed, 1979) at 54; Atkinson v Gameco (NSW) Pty Limited [2005] NSWCA 338 (at [18]). 144 In Bourke v Victorian Workcover Authority [1999] 1 VR 189, Winneke P (with whom Brooking and Buchanan JJA agreed) said (at 200 to 201, [41] to [42]): "True it is that, where an employer sends his employee to work at or in premises occupied or controlled by another, … occupation and control by another person may be a relevant fact in considering whether the employer had been in breach of his own independent duty to the employee. But the fact that the employee's work is required to be done on premises of another does not absolve the employer of his duty. Its impact upon whether he had breached his duty will depend upon all the circumstances. As Lord Denning said in Smith v Austin Lifts Limited [1959] 1 WLR 100: 'Notwithstanding what was said in Taylor v Sims & Sims [(1942) 167 LT 414; [1942] 2 All ER 375], it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an overriding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work … ; and, if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable care depends, of course on the circumstances …' (See also Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110 at 121-2 per Pearce LJ; Sinclair v William Arnott Pty Ltd (No 2) (1963) 64 SR (NSW) 88 at 91-2 per Walsh J). One can conceive of a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer's duty will vary. It will depend no doubt upon such matters as the employer's opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors." 145 This Court, in Atkinson v Gameco (NSW) Pty Limited (at [19]), adopted the above statement of the law. 146 Devising and implementing a safe system of work would ordinarily not be an overly difficult task where the worker is working in the employer's own premises. The situation is different where the employee delivers materials over vast distances to several different farms where workplaces, working conditions and equipment differ from farm to farm and where changes can be made at any time by the farmers concerned. In the latter situation, the employer has no real control over the circumstances in which each delivery is made. Due regard must be had to this absence of control when determining what amounts to the taking of reasonable care to avoid exposing employees to unnecessary risks of injury, and what amounts to a safe system of work. 147 In the present case, it was not reasonably possible for the respondent to have devised and implemented a safe system of work dealing with the specific circumstances involving the appellant's auger and the particular circumstances that obtained on the appellant's farm. The respondent was not aware of those circumstances and, in my view, considerations of reasonableness did not require it to be aware of them. Additionally, the respondent had no control over the auger and was not in a position to take appropriate measures to guard it. That is not to say, of course, that the respondent did not owe Mr Kelman a duty of care in the general terms expressed in Czatyrko v Edith Cowan University at 842 to 843, [12]. The means by which the respondent was required to discharge that duty, however, must be determined by the particular circumstances.

Breach of common law duty of care 148 As I have mentioned, the sole breach for which the appellants contend is that the respondent should have instructed Mr Kelman to remove the tarpaulin before offloading the grain. 149 It is worth noting what is not alleged against the respondent. 150 Firstly, as I have mentioned, the appellants did not persist in the argument raised at trial that the respondent breached its duty because it permitted Mr Kelman to work near unguarded machinery. 151 Secondly, there was no challenge to the finding that the respondent did not know about the hazard constituted by the unguarded auger. The appellants relied solely on imputed or constructive knowledge. 152 Thirdly, the appellants did not contend that the respondent should have warned Mr Kelman specifically about the possible existence of unguarded clutches on augers. 153 Fourthly, the appellants did not contend that the respondent should have told Mr Kelman that he was not required to effect any delivery (even if that meant that the respondent would lose the business) which required the use of an auger with an unguarded clutch in circumstances where the space between the auger and the back of the truck was so small as to create a risk to his personal safety. 154 Fifthly, the appellants did not contend that the respondent should have told Mr Kelman that he was not required to effect any delivery (even if that meant that the respondent would lose the business) if any equipment supplied by the recipient for the purposes of effecting delivery was dangerous and might create a risk to his personal safety. 155 As a matter of common knowledge, there is no standardised equipment required (or used) for the delivery of grain to silos on farms. Generally, farmers have their own idiosyncratic systems. The quality, mechanism and length of an auger would differ from farm to farm. The distance between the back of the delivery truck and trailer and the auger would depend on the particular equipment used by the individual farmer. Thus, that distance would vary from farm to farm. 156 In other words, the appellants' sole case in regard to breach of the duty of care was that the respondent should have told Mr Kelman that, in all circumstances, irrespective of the weather and the length of the auger, if an auger were to contain an unguarded clutch or unguarded revolving machinery, he was required to lift and roll back the tarpaulin before the auger was switched on. 157 It immediately comes to mind that this argument pays no regard to the fact that, in windy or wet conditions, grain might be lost or spoiled. Plainly, the driver's safety is far more important than the loss of grain, but it is problematic to lay down an absolute requirement without regard to considerations of reasonableness. 158 Further, the appellants' arguments must be understood in the context of the fact that, as his Honour found, the danger constituted by the auger was obvious to all who observed it (including Mr Kelman and Mr Mutton) and Mr Kelman was well aware of it. 159 Harrison v Lau Nay Nominees Pty Limited [2004] NSWCA 18 is relevant as it bears some similarities to the present case. Harrison concerned an injury sustained by an experienced truck driver, Mr Harrison, while redistributing a load on a trailer. Meagher JA (with whom McColl JA and I, on this issue, agreed) said (at [11] to [12]): "Mr Harrison gave evidence that he had from the age of 16 years worked on or with trucks and had secured a truck driver's licence by the age of 18. He said he had extensive experience in the loading and unloading of trucks and in the driving and transportation of fully loaded vehicles; and that it was because of his skill and experience that he sought and obtained employment with the first respondent. In these circumstances, there was no 'delegation' of anything by his employer to him, but … a sensible recognition by his employer of his expertise. The situation in this case has nothing in common with the situation in McLean v Tedman (1984) 155 CLR 306 at 311, when … Mason, Wilson, Brennan and Dawson JJ said: 'It is not an acceptable answer to assert that an employee has no control over an employee's negligence or inadvertence'. As Mr Little SC, learned senior counsel for the first respondent, said: 'This is not a case where it can be suggested that a safety officer travel to every site before the truck gets there to see that the loads are safe to pick up'". 160 Prior to the accident, Mr Mutton had never seen a driver attempt to roll back a tarpaulin after offloading had commenced. Plainly, in windy conditions, once the grain load, or part of it, is exposed, it can blow all over the place. Whether or not it was standard practice to delay moving the tarpaulin to the last possible moment in such weather conditions was not explored in the evidence. Mr Kelman, a very experienced driver, was well aware of the risk and thought that this was an appropriate way to proceed. Mr Mutton, a farmer of many years standing and who had, for many years, observed grain being offloaded while he operated the auger, thought that there was nothing untoward about what Mr Kelman was doing. 161 The respondent pointed to the fact that an operation of the kind Mr Kelman was conducting when he was injured had been safely carried on, without incident, about four or five times a year for some 22 years. The appellants sought to answer this by submitting that it was to be inferred (from Mr Mutton's evidence) that on previous occasions the tarpaulin had been wound back before the offloading commenced. 162 The evidence does not reveal whether Mr Mutton was the only person who supervised offloading of grain on the appellants' behalf. He said that before the accident he had observed a number of other drivers deliver grain to the silo. He said "usually" before they backed their vehicle in they would undo the tarpaulin and roll it back about a metre or so. Mr Mutton said that when a truck arrived either he, or his brother, or "whoever might have been around" would stay with the driver at the rear of the truck. Thus, the evidence did not reveal whether it was an invariable practice for drivers to wind back the tarpaulin before commencing the offloading of grain. 163 The respondent submitted that, irrespective of whether a driver removed the tarpaulin before or after offloading commenced, during every offloading operation and while the auger was operating, the driver was required to walk between the rear of the tray and the auger more than once (and probably two or three times). This was because the driver needed to adjust the elevation of the tray from time-to-time and, in order to ensure that the new elevation was appropriate, was required to adjust the grain door each time the elevation was adjusted. 164 I have mentioned that the handle that opened or closed the grain door was immediately to the right of the grain door. Thus, to get to the handle the driver had to go behind the tray on its right-hand-side in order to grasp it. The handle needed to be operated (and the grain door opened and closed) while the driver was adjusting the flow of grain through the door. As I have observed, this was an ongoing process. The following exchange in the cross-examination of Mr Kelman explains what occurred in this regard. "Q. From time to time during that process you would have to walk around and get into the cab to adjust the tipper? A. Yes. Q. You did that a couple of times? A. Yes. Q. At other times you would have to go right around to the other side to adjust the flow through the grain door? A. Yes. Q. Was that something which at different stages during the unloading you had to do a few times? A. Yes, usually every time you put the body up you go back and just check to make sure the flow wasn't coming out too quick. Just adjust the door. Q. I suppose also in-between adjustments of the tipper you would be opening the grain door a bit further as the load got less? A. Yes, it does vary a little bit, yes. Q. So that was something you had to do a few times? A. Yeah. Q. Certainly more often that adjusting the tipper? A. Yeah, yeah. Q. Every time that you had to adjust the grain door you would have to walk in-between the back of the truck and the tractor and the PTO running up to the auger? A. Yes. Q. In the period between the last time that you adjusted the tipper to increase the angle and the time this accident occurred, had you gone to the back of the truck to the area where the grain door handle was? A. Yes. Q. Had you gone back and stood there during that last part of the unloading process? A. Yes, because as it gets empty the flow starts to slow down and speed up and, yeah. Q. It becomes more unpredictable as there is less of a load coming down to the grain door? A. Yes, yeah. Q So you had positioned yourself there, I take it, as you did every time you unloaded a load, and presumably as every driver does every time they unload a load of grain? HIS HONOUR: That is a rather long and complicated question. HOOKE: It is. QUESTION WITHDRAWN Q. You returned to stand there, as you did each time you got towards the end of an unloading process? A. Yes. Q. To your observation in the same way that every driver would stand at the end of a load, as it becomes unpredictable that way? A. Yes, yep." 165 The appellants' riposte was to draw attention to the evidence of Mr Kelman that he crouched down to undo the tarpaulin because of the incline of the tray. This meant that once Mr Kelman had completed untying the ropes (in a crouched position) he could not stand up straight as his head would hit the tray. He therefore moved backwards until his head cleared the tray and then stood up. Having stood up he took another step backwards. Thus, the appellants submitted, he took two steps, one in a crouching position in order that his head would clear the end of the tray, and then, after straightening up, one further step backwards. The appellants submitted that, in these circumstances: "[T]he entry to, and exit from, the rear of the vehicle was for an entirely different purpose and capable of being undertaken by an entirely different method than that which was chosen by [Mr Kelman] at the time he was injured. That nobody over a period of twenty years or so had been injured notwithstanding the need to regularly adjust the grain door, in circumstances where the tarpaulin was usually removed before unloading began, is eloquent testimony to the fact that the 'tarpaulin or first' practice eliminated, or alternatively significantly reduced, the risk of injury from contact with the auger and clutch. That is because the worker could enter and exit the area at the rear of the truck to adjust the grain flow by crouching, and keeping himself about two metres from the auger." 166 I do not accept the appellants' submissions in this regard. It is true that the operation of opening and closing the grain door differs from unhooking the tarpaulin ropes at the side of the grain door. But, in this context, there is no material difference between the position of the hook on the right of the grain door (and, even on the left) and the handle of the grain door. The method by which the driver would get to the handle of the grain door and open or close it is precisely the same method that he would use in getting to the hooks to release the tarpaulin ropes. The driver would have to crouch down and move forwards until he was sufficiently close to grasp the grain door handle or the tarpaulin rope, depending on his objective. Having completed his particular task, he would move backwards from his position immediately behind the rear of the tray (with the auger at his back) in precisely the same way, irrespective of whether he had been operating the grain door handle or unhooking the ropes. 167 In other words, the exercise of getting between an auger in operation and the inclined rear of the tray was an unavoidable and inevitable part of the work of truck drivers in delivering grain to farmers where the delivery process required the use of an auger (and the use of an auger appears to have been generally ubiquitous). The fact that in the vast majority of instances the driver would be placing himself in this position to open or close the grain door (and not to undo the tarpaulin ropes) is immaterial to the risk to which he would thereby expose himself. The risk in both instances would be the same. 168 There was no evidence to suggest that the method adopted by Mr Kelman in so intruding himself between the rear of the trailer and the grain door was anything other than standard practice in the industry. 169 The fact that over a period of some 22 years no driver sustained any injury in delivering grain to the appellants' farm in circumstances where the same or similar machinery was continuously in use (and there had not even been any suggestion of an accident) becomes highly significant. 170 In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, Kirby J said (at 481, [132]): "In determining what risks the defendant was required by law to respond to, it is necessary to have regard to what acts the defendant may have reasonably anticipated in the circumstances. Given the prominence of the danger, past usage of the site and accident experience it was not reasonable to expect the defendant to anticipate the inadvertence of the plaintiff in this case." 171 In Roads and Traffic Authority of New South Wales v Dederer (2007) 81 ALJR 1773, Gummow J (with whom Callinan J (at 1822, [270] and 1823, [282]) and Heydon J (at 1823, [283] agreed) had regard (at 1788, [61]) to the fact that no injury had been caused despite the fact that over some 40 years large numbers of people had jumped and dived from the bridge in question in that case. He considered that the absence of any injury being caused until the plaintiff was rendered paraplegic demonstrated that "the probability [of the risk materialising] was in truth very low". See also at 1790, [71] where Gummow J said: "The probability of that injury occurring was, however, low. Despite the frequency of jumping and diving from the bridge, no-one was injured until Mr Dederer's unfortunate dive." 172 Callinan J made similar remarks at 1822, [274]. His Honour accepted that diving from the bridge was a risky activity. He said, however: "But even so, and despite flagrant defiance of the ban, not one out of the many who had dived in the 40 or so years that had elapsed since the construction of the bridge had been injured, so far as anyone could recall, let alone severely injured. This is to say that the risk, although undisputably [sic] present, had a very low degree of probability of realisation." 173 These observations must apply in the present case. The fact that no accident had occurred in regard to the unguarded auger, despite its constant use over 22 years, indicates that the risk of harm to persons using the auger, although indisputably present, had a very low degree of probability of realisation. 174 The next question is whether the particular risk of harm should have been foreseen. By reason of s 3B(1)(f) of the Civil Liability Act 2002 (NSW), that Act does not apply in respect of the civil liability of the respondent to Mr Kelman. Hence, the well known test derived from Mason J's remarks in Wyong Shire Council v Shirt (1980) 146 CLR 40 (at 48) is of application. 175 The appellants submitted that the mechanism of the accident - a worker becoming caught in unguarded machinery - was "plainly foreseeable" in the Wyong Shire Council v Shirt sense. That may be accepted, but it does not follow from that alone that doing nothing as regards such a risk was an unreasonable response to that risk. 176 The relevant point was made in Liftronic Pty Limited v Unver (2001) 75 ALJR 867 by McHugh J (with whom Gleeson CJ agreed) when he said (at 871, [25]): "His Honour and counsel seemed to have proceeded on the erroneous assumption that, if there was a reasonably foreseeable risk of injury to the plaintiff that could have been avoided by using mechanical means, the defendant was necessarily negligent. But the issue in negligence is always whether reasonable care required the elimination of the risk having regard to the consequences of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it." 177 The basic rule was described by Mason J in Wyong Shire Council v Shirt (at 47 to 48) as follows: "In deciding whether there has a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." 178 In Dederer, Gummow J emphasised the need to judge the question of whether reasonable care was exercised prospectively "and not by retrospectively asking whether the defendant's actions could have prevented the plaintiff's injury" (at 1789, [65]). Gummow J quoted the following statement by Hayne J in Vairy v Wyong Shire Council (2005) 223 CLR 422 (at 461, [126]): "When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury." 179 In applying these strictures one must commence with the fact that it is common knowledge that machinery utilised by farmers differs from farm to farm in quality, age, safety, reliability and in a host of other features, and can be dangerous in an infinite number of respects. Of course, the drivers of the respondent's 30 trucks would encounter, principally, machinery designed to assist in the process of offloading grain, but even machinery that falls within this limited category must differ in kind in an infinite number of ways in mechanism, configuration, quality, reliability and safety. True it is that augers are dangerous machines and augers with exposed moving parts are even more dangerous. But these dangers are only one of an infinite number that theoretically could involve drivers when delivering grain at farms throughout the eastern part of Australia. 180 As regards the respondent's knowledge of the danger from the auger, the appellants relied on an internal memorandum addressed after Mr Kelman's accident to all drivers of the respondent by Miss Wendy Lamond, a "Rehabilitation Co-ordinator" employed by the respondent. Miss Lamond wrote: "Factors involved with this accident are: (1) Exposed moving parts of farm machinery. (2) Loose flapping clothing. (3) Windy weather. (4) Complacency. The tipper drivers especially would be dealing with grain handling facilities every day, and for this reason complacency is a major issue. Farm machinery as you know is some of the most dangerous equipment around and farmers are renowned for not adhering to all the safety requirements. I am NOT saying that [Mr Kelman's] accident was caused by the farmer, what I am trying to say is be aware of the equipment that is being utilised and consider the dangers involved. Under NO circumstances are any drivers to load or unload grain on farms without the farmer being present to operate the equipment and the farmer is to remain present during the entire loading or unloading process." 181 Miss Lamond's memorandum establishes that it was common knowledge that farm machinery could be very dangerous and "farmers are renowned for not adhering to all the safety requirements". Miss Lamond's letter also emphasises the dangers of complacency. 182 There are several points to be made from this memorandum. Firstly, the warning it gives about equipment is in the most general terms. Secondly, it establishes that the respondent knew that equipment on farms could be dangerous. Thirdly, it does not establish that the respondent knew anything about the particular equipment on the appellants' farm and it makes no reference to the dangers from unguarded augers or other machinery. Fourthly, the appellants' case was not based on any failure on the respondent's part to warn against complacency. Fifthly, Miss Lamond's memorandum instructs drivers to ensure that the farmers are present "during the entire loading or unloading process". Mr Mutton was in fact present throughout the time Mr Kelman was unloading the grain. 183 I would add that Mr Kelman expressly acknowledged that he knew of the danger constituted by the unguarded auger and he was aware of the need to keep a safe distance between himself and the auger. I do not think that the ex post facto warning sent by Miss Lamond in these general terms to all drivers is of material assistance to the appellants in attempting to establish that the respondent was negligent in failing to instruct drivers to roll back the tarpaulins before they commenced offloading grain. It is not directed to this issue. 184 Notionally, it is perhaps arguable that, over the period of many years during which the respondent's drivers delivered grain to the appellants, they must have become aware of the unguarded auger and their knowledge should be attributed to the respondent. This, however, was not a point that was taken at the trial. Sully J found that the respondent did not know of the unguarded auger and there is no appeal against this finding. The appellants contend merely that the respondent should have known of the risk of the existence of an unguarded auger. 185 The fact that Mr Mutton, an experienced observer, saw nothing dangerous in the way that Mr Kelman was setting about his task supports the respondent's contention that what occurred was simply an unfortunate mishap that could not be attributed to a breach of duty on the respondent's part. 186 In Van Der Sluice v Display Craft Pty Limited [2002] NSWCA 204, Heydon JA (with whom Meagher JA and Forster AJA agreed) said (at [83]): "It is a fallacious reading of Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48 to conclude that it holds that if the risk of injury is reasonably foreseeable and removal of that risk by simple and cheap measures is possible but not undertaken, there is a breach of duty. Mason J left open as the response of a reasonable person the course of doing nothing instead of adopting the simple and cheap measures: Council of the Municipality of Waverley v Lodge [2001] NSWCA 439 at [29]." 187 The response of the respondent to the general risks of danger that Mr Kelman might encounter on farms (including the general risks of machinery not properly guarded), and the particular risks of him having to work with unguarded augers, was to do nothing (save for being satisfied that Mr Kelman was a very experienced driver and had considerable experience in working with augers). I am not persuaded that this response was unreasonable. I would dismiss the appeal against Sully J's decision in regard to the appellants' case based on a breach by the respondent of the duty of care it owed Mr Kelman.

Clause 45(a) of the OHS Regulation 188 The appellant's case based on a breach of cl 45(a) of the OHS Regulation has to be understood in the context of s 8 and other sections of the OHS Act. 189 Section 8(1) of the OHS Act provides: " 8. Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and a means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work." 190 Section 10 must also be noticed. This section provides: " 10. Duties of controllers of work premises, plant or substances (1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health. (2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used. (3) The duties of a person under this section: (a) do not apply to premises, plant or substances used only by employees of the person, and … (4) In this section, a person who has control of premises, plant or substances includes: (a) a person who has only limited control of the premises, plant or substances (in which case any duty under this section applies only to the matters over which the person has control), and (b) …" 191 By s 12, a person who contravenes ss 8 or 10 commits an offence. Section 8(1)(a) focuses on duties in relation to premises controlled by the employer and s 10 on duties in relation to premises controlled by some other person. The degree to which s 8 applies to plant with which a worker works at some premises other than those occupied or used by the employer is open to argument. The same issue arises in connection with cl 45(a) of the OHS Regulation, but for reasons that I later give it is not necessary to resolve this issue. 192 Clause 45(a) forms part of Pt 4.3 of the OHS Regulation. A note at the commencement of Pt 4.3 refers to s 8 of the OHS Act. The first sentence of the note states: "Section 8 of the Act contains a general requirement for employers to ensure the health, safety and welfare at work of their employees."

The note proceeds, in effect, to set out the provisions of ss 8(1)(a) to 8(1)(e) of the OHS Act. After referring to provisions of s 8(2) of the Act, which are not presently relevant, the note states: "Chapter 2 of this Regulation also contains general obligations of employers to control risks. This Part sets out particular risk control measures to be undertaken by employers. …" 193 In order to understand where cl 45(a) fits into the scheme of the legislation, it is necessary to have regard to the relevant provisions of Ch 2 of the OHS Regulation. Chapter 2 is headed "Places of work - risk management and other matters". Clause 11 (which is part of Chapter 2) provides: " 11. Employer to eliminate or control risks (1) Subject to sub-clause (2), an employer must eliminate any reasonably foreseeable risk to the health or safety of: (a) any employee of the employer, or (b) any other person legally at the employer's place of work, or both, that arises from the conduct of the employer's undertaking. (2) If it is not reasonably practicable to eliminate the risk, the employer must control the risk. (3) An employer must ensure that all measures (including procedures and equipment) that are adopted to eliminate or control risks to health and safety are properly used and maintained. (4) An employer who employs 20 or fewer employees is not required to comply with this clause within the period of 2 years after its commencement (except to the extent that the clause applies to risks involving hazardous substances or manual handling). (5) An employer who employs more than 20 employees is not required to comply with this clause within the period of 12 months after its commencement (except to the extent that the clause applies to risks involving hazardous substances or manual handling). Maximum penalty: Level 4." 194 The OHS Regulation commenced on 1 September 2001. The respondent employed more than 20 employees. Therefore, cl 11(5) applied to the respondent. The point was not addressed, but it is arguable that the risk that materialised and which resulted in Mr Kelman's injuries involved "manual handling" within the meaning of cl 11(5). I shall assume, for the purposes of these reasons, that this is the case. On that assumption, cl 11(5) applied to the respondent on 3 September 2001 (the date of the accident). Were that assumption to be incorrect, cl 11(5) would not apply to the respondent. I later explain the relevance of the application of cl 11(5) to a breach of duty under cl 45(a). 195 A note to cl 11 provides: "An employer must also comply with any specific risk control measures required by this Regulation. In particular, see Parts 4.3, 4.4, 5.4 and 6.4 …" 196 Clause 45 is part of Pt 4.3 and is a "specific risk control measure" of the kind referred to in the note to cl 11. The particular risk control measure provided by cl 45 concerns "working space". Clauses 46 to 78 all fall within Pt 4.3 and all contain different particular risk control measures. Other risk control measures are contained elsewhere in the OHS Regulation. 197 Clause 45 is in the following terms: "Working space - particular risk control measures An employer must ensure that: (a) sufficient working space is provided to allow persons to work safely, and (b) floors and surfaces are constructed and maintained to minimise the possibility of slips, trips and falls, and (c) persons are unhindered and able to move safely around a place of work. Maximum penalty: Level 4." 198 The words in cl 45, "Maximum penalty: Level 4", imply that a contravention of the clause is an offence. But, on closer examination of the OHS Act and the OHS Regulation, that does not appear to be the case. This requires further explanation. 199 Section 108(1) of the OHS Act provides: "An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence under this Act or the regulations, being an offence prescribed by the regulations." 200 Section 108(6) provides: "The regulations may: (a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and (b) prescribe the amount of penalty payable for the offence if dealt with under this section and (c) prescribe different amounts of penalties for different offences or classes of offences, and …" 201 Clause 353 of the OHS Regulation provides: Penalty notice offences and penalties (1) For the purposes of s 108 of the Act: (a) each offence created by a provision specified in Column 1 of Schedule 2 is an offence for which a penalty notice may be served, and (b) the penalty prescribed for each such offence is the amount specified opposite the provision in Column 2 of the Schedule. (2) …" 202 Schedule 2 concerns "Penalty notices" and, under the heading, "Offence under this Regulation", refers to a number of offences. The provisions of the OHS Regulation that create offences are specified in Column 1 of Sch 2 (as cl 353 provides). Clause 45 is not listed as an offence under Sch 2. Clauses 11(1), 11(2) and 11(3) are, however, so listed. 203 Clause 11 forms part of Ch 2 of the OHS Regulation (to which reference was made in the note at the commencement of Pt 4.3, of which cl 45 forms part). It will be recalled that the note refers to s 8 of the OHS Act, states that s 8 "contains a general requirement for employers to ensure the health, safety and welfare at work of their employees", states that Ch 2 of the OHS Regulation also contains general obligations of employers to control risks, and records that Pt 4.3 sets out "particular risk control measures to be undertaken by employers". It is also to be noted that the maximum penalty under cl 45 is level 4, and the same maximum penalty applies under cl 11. 204 In my opinion, the effect of the provisions I have mentioned is that cl 45 (together with the other particular risk control measures set out in Pt 4.3) are to be regarded as particulars of risk control measures required by cl 11. This is consistent with the note to cl 11 (referred to above). 205 Thus, cl 11(1) may be breached (and, thereby, give rise to a criminal offence) if it is reasonably practicable to eliminate a reasonably foreseeable risk to the safety of an employee by ensuring that sufficient working space is provided to allow persons to work safely (within the meaning of cl 45(a)) and the employer does not do so. Similarly, cl 11(2) may be breached (and give rise to an offence) if the employer does not control such a risk in circumstances where it is not reasonably practicable to eliminate any such reasonably foreseeable risk. 206 While cl 45(a) may be breached independently of cl 11, such a breach would not constitute a criminal offence independently of cl 11. 207 It is, then, necessary to have regard to s 28 of the OHS Act. This section provides: "It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision." 208 Section 32 of the OHS Act provides: "(1) Nothing in this Part is to be construed: (a) as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of this Part, or (b) as conferring a defence to an action in any civil proceedings or as otherwise effecting a right of action in an civil proceedings. (2) Subsection (1) does not affect the extent (if any) to which a breach of duty imposed by the regulations is actionable (including any regulation that adapts a provision of this Part).

Both ss 28 and 32 form part of Pt 2; therefore, s 32 applies to s 28. 209 By s 28 it would be a defence to any proceedings against an employer for an offence against cl 11(2) or (3) (by failing to comply with cl 45(a)) if compliance was not reasonably practicable, or the commission of the offence was due to causes over which the employer had no control and against the happening of which it was impracticable for the employer to make provision. 210 The respondent conceded at trial and on appeal that a breach of cl 45(a) gave rise to a civil cause of action. It is inappropriate to examine whether that concession was properly made and I proceed on the assumption that it was correct. I would merely note that it is arguable that where a criminal penalty is imposed and there is no express reference to a private civil cause of action, an inference may be drawn that the statute did not intend to confer such a private cause of action: see Halsbury's Laws of Australia (Sydney: LexisNexis Butterworths, 2007) at [415-1365] and the cases cited therein. That would particularly be the case where an absolute obligation is imposed with which it might not be reasonably practicable to comply. 211 Ms Katzmann SC, who together with Mr Hooke appeared for the respondent, submitted that the (conceded) legislative intent to provide a civil action for breach of cl 45(a) must be seen in the light of s 28, read with s 32(2). She submitted, in effect, that once the legislation is to be construed as providing for a civil right of action for a breach of cl 45(a), it must also be construed as providing for a defence to such an action in the terms, mutatis mutandis, of s 28. 212 In Sovar v Henry Lane Pty Limited (1967) 116 CLR 397, Kitto J said (at 405) that, in determining whether a statute confers a personal right to sue for damages upon breach of the duties created thereby, the Court must determine what inference arises, on a balance of considerations, "from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation". His Honour went on to discuss the position where the enactment which prescribes the conduct is accompanied by the express provision of a criminal sanction for the enforcement of its requirement and observed: "On the prima facie principle that expressio unius est exclusio alterius there is ground for a countervailing inference of an intention that in the event of a contravention the specifically provided remedy shall be the only remedy". 213 Kitto J proceeded (at 406) to say: "Where a statute exhibits that intention and contains a provision which in terms provides only that proof of specified facts shall afford a defence or defences in a prosecution, there is no principle or authority of which I am aware upon which it can be held, without aid from some other provision of the statute, that an intention may be inferred to the effect that proof of those facts shall absolve a defendant from civil liability for the contravention. It is surely a large proposition that what is expressed only as relating to the sanction of a criminal prosecution is rarely meant as an alteration of the very obligation itself, notwithstanding that the provision which creates the obligation is left standing in unqualified terms. Proof of the specified facts in a prosecution will, of course, lead to the dismissal of the charge; but, while the dismissal will establish that the alleged contravention of the provision creating the obligation, even if proved, was not an offence against the statute, it will not establish that the conduct relied upon by the prosecutor as having been a contravention was not in fact a contravention. It seems to me that the distinction between, on the one hand, providing defences to a prosecution for not observing a required course of conduct and, on the other hand, providing exemptions from the requirement to observe that course of conduct is so obvious and so fundamental that only a very special context could ever justify a decision that an enactment which in its express terms is directed only to the former is intended sub silentio to achieve also the latter." 214 His Honour held that the statutory defence, provided by s 27(5) of the Factories, Shops and Industries Act 1962 (NSW), was not an answer to a civil action to recover damages for personal injuries caused by a contravention of s 27(1)(d) of that Act. 215 Owen J agreed with Kitto J. McTiernan ACJ delivered his own reasons in which he came to the same conclusion as Kitto J. Taylor and Windeyer JJ (in separate judgments) dissented. 216 Whether or not a provision such as s 28 amounts to a restriction of any civil liability that might be imposed on an employer for breach of a statutory duty created by the OHS Act is a question of statutory construction. As Dawson J said in Nicol v Allyacht Spars Pty Limited (1987) 163 CLR 611 (at 624): "The courts, having created the liability, are able to confine it."

See also Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 (at 443, [42]). 217 In King v The Queen (2003) 215 CLR 150, Gummow, Callinan and Heydon JJ said (at 168, [49]): "[W]hat may provide a defence to one category of proceedings (criminal or quasi-criminal) might not necessarily provide a defence to civil proceedings founded upon the same enactment."

Their Honours referred to Sovar v Henry Lane Pty Limited . 218 The question of statutory construction raised by the question whether s 28 limits the civil liability of an employer sued for a breach of an obligation created by the OHS Act was not addressed in argument. The issue is a difficult and complex one and, in the absence of submissions, it is undesirable that I deal with it. 219 There is another basis on which, in my view, the appellants' argument that the respondent breached cl 45(a) fails. 220 While cl 45(a) imposes an absolute liability on an employer to ensure that sufficient working space is provided to allow persons to work safely, the word "sufficient" (importing as it does the notion of "adequacy") involves an element of judgment. 221 The mere fact that Mr Kelman was injured in the process of offloading the grain does not prove that the space in question was not sufficient to allow him to do the work safely. The very same work had been done several times a year for some 22 years. That, in my view, is a strong indication that the space was sufficient. 222 The precise reason for the accident is difficult to identify. As Mr Mutton accepted, in order to move from the back of the trailer to where he came into contact with the clutch Mr Kelman had to cover "something slightly under a couple of metres". Mr Kelman confirmed this in his cross-examination. The following exchange is relevant: "Q. So, when you were crouched down, you would have been, subject to your body width, two metres from the clutch mechanism on the auger? A. Yes, yes. Q. And, then, as you have stood up, you have stepped backwards because of the angle of the back of the trailer, is that right? A. Yes. Q. Do you say that it was as you stood up and stepped back coming to the standing position that you came into contact with the auger? A. Yes, yes. Q. Wouldn't you have to step back further than that to achieve a two metre backwards movement into the auger? A. I don't know. The body of the truck has 6-foot sides. I stepped back to clear the truck, so that was 6-foot [sic] back, then I have [sic] stood up."

223 The last answer by Mr Kelman (particularly the words, "I don't know") illustrates the uncertainty. He himself did not know whether he would have had to step back more than one pace from the time he stood up in order to come into contact with the auger. It also may be that Mr Kelman moved backwards in a crouched position further than he thought he did. Whatever the position, there appears to have been a misjudgement on Mr Kelman's part that no other employee had made on the many occasions in the past that the same work had been done. 224 In these circumstances, I am not persuaded that Sully J was wrong when he found that the evidence did not satisfy him that the space allowed between the rear of the tray and the auger was insufficient to allow Mr Kelman to do his work safely.

Clause 136(3)(d) of the OHS Regulation 225 Clause 136(3)(d) is in the following terms: " 136. Use of plant - registration requirements and particular risk control measures (3) An employer must ensure in relation to use of plant that: (d) if it is not possible to eliminate the risk of entanglement in plant with moving parts, persons do not operate, or pass in close proximity to, the plant unless the risk of entanglement is controlled by guarding that meets the requirements of clause 90(1) or the use of a safe system of work." 226 Clause 136(3) forms part of Pt 5.4 of the OHS Regulation. The note to cl 11, as I have mentioned, provides: "An employer must also comply with any specific risk control measures required by this Regulation. In particular see Parts 4.3, … 5.4 …" 227 Unlike cl 45, cl 136(3) is listed in Column 1 of Sch 2; hence, a breach of cl 136(3) gives rise to a criminal offence, independently of cl 11. 228 Ms Katzmann submitted (as she did in regard to the appellants' argument that the respondent breached cl 45(a)) that s 28 of the OHS Act afforded the respondent a defence to a civil action for a breach of cl 136(3). For the reasons I have expressed in regard to cl 45(a) I do not think it desirable to address that issue. In my view, there is a different basis on which the appellants' argument in regard to cl 136(3)(d) fails. 229 I have drawn attention to the fact that cl 11(1) of the OHS Regulation provides that, subject to cl 11(2), an employer must eliminate any reasonably foreseeable risk to the health or safety of any employee of the employer, and cl 11(2) provides that, if it is not reasonably practicable to eliminate the risk, the employer must control the risk. 230 The two alternative themes of ensuring that a risk is eliminated and, if it is not reasonably practicable to do so, controlling the risk, run through the OHS Regulation. The notion of these two alternative duties is first seen in cll 5 and 6 of the OHS Regulation. 231 Clause 5 provides: " Meaning of "control" of risks (1) For the purposes of this Regulation, an obligation to control a risk to health or safety (in any case in which the elimination of the risk is not reasonably practicable) is an obligation to take the following measures (in the order specified) to minimise the risk to the lowest level reasonably practicable: (a) firstly, substituting the hazard giving rise to the risk with a hazard that gives rise to a lesser risk, (b) secondly, isolating the hazard from the person put at risk, (c) thirdly, minimising the risk by engineering means, (d) fourthly, minimising the risk by administrative means (for example, by adopting safe working practices or providing appropriate training, instruction or information), (e) fifthly, using personal protective equipment. (2) A combination of the above measures is required to be taken to minimise the risk to the lowest level reasonably practicable if no single measure is sufficient for that purpose. (3) Any obligation in this Regulation to control a risk by taking specific risk control measures, or by taking specific risk control measures in a particular order, is in addition to the obligations referred to in subclauses (1) and (2). Note . For an example in which the above clause applies, see clause 11 (general obligation of employers and self-employed persons to eliminate risks or, if not reasonably practicable to do so, to control the risk)." 232 Clause 6 provides: " Application of provisions providing for alternative duties if primary duty not reasonably practicable (1) This clause applies to any provision of this Regulation that imposes a duty, such as a duty to eliminate a risk, on a person (the primary duty ), but provides that if it is not reasonably practicable to comply with that duty, the person is required to comply with another duty, such as a duty to control the risk (the alternative duty ). Note . See duties to eliminate risks or, if that is not reasonably practicable, to control the risk (clause 11). See also particular alternative control measures in clause 5. (2) For the purposes of this Regulation, the primary duty of a person is not replaced by the alternative duty unless the person can establish that it is not reasonably practicable to comply with the primary duty. Note . Section 28 of the Act provides a defence if the person can establish that it is not reasonably practicable to comply with the alternative duty." 233 Several clauses in the OHS Regulation impose obligations on employers to "ensure" the health, safety and welfare at work of their employees by "eliminating" particular risks (see, for example, cl 135). Also, as contemplated by cl 5, several clauses impose obligations on employers to "control" particular risks, as opposed to ensuring that those particular risks are eliminated. 234 Clause 136(3)(d) falls into the latter class. It is expressly conditioned on the existence of a state of affairs in which it is not possible to eliminate the risk of entanglement in plant with moving parts. Only in that event does cl 136(3)(d) require an employer to ensure that "persons do not operate, or pass in close proximity to, the plant unless the risk of entanglement is controlled by guarding that meets the requirements of clause 90(1) or the use of a safe system of work". 235 By cl 136(3)(d), if it is not possible to eliminate the risk of entanglement, the employer may allow persons to operate or pass in close proximity to the plant if the risk of entanglement is controlled in one of the two measures stipulated (that is, either by guarding that meets the requirements of cl 90(1), or, the use of a safe system of work). 236 The significant aspect of cl 136(3)(d), as regards the appellants' argument, is, however, that it only applies if it is "not possible to eliminate the risk of entanglement" in the moving parts of the auger. 237 Dr Hill, the relevant expert who testified in this regard, stated: "Elimination of the hazard is an extremely simple matter by providing a suitable cover over the rotating parts that would prevent anything from coming into contact with the parts and becoming caught up on them." 238 Mr Mutton, himself, agreed that if the guard that had been put on the clutch had been there at the time of the accident, Mr Mutton's clothes would not have come into contact with the clutch. 239 Counsel for the appellants at trial, in written submissions, accepted that "[i]t was possible to eliminate the risk" and observed: "There is nothing to suggest to you in this case that it was not possible to eliminate the risk." 240 During the course of argument, it was pointed out that, from photographs tendered in evidence, the guard in fact installed on the auger after the accident appeared not to eliminate the risk. That is because the guard installed appeared to leave the moving parts of the auger open, to a limited extent. I would add that this proposition was not put to any witness and it is arguably contrary to the evidence of Mr Mutton. 241 In my view, however, the efficacy of the guard in fact installed is not material. It is not to the point whether the guard in fact installed eliminated the risk. The question is whether it was "possible to eliminate the risk of entanglement". On the unchallenged evidence of Dr Hill, that question must be answered in the affirmative. The appellants, at trial, ran their case on the basis that it was possible to eliminate the risk. 242 In my opinion, the unchallenged evidence of Dr Hill and the way in which the appellants ran the case at trial preclude this Court from finding that it was possible to eliminate the risk. 243 Once it is accepted (as, in my view, must be the case) that it was possible to eliminate the risk, cl 136(3)(d) does not apply. It follows that the appellants' submissions based on a breach of cl 136(3)(d) cannot be upheld.

The cross-appeal 244 In the light of the conclusions to which I have come in regard to the appeal, it is not strictly necessary to consider the issues raised by the cross-appeal. As the matter may be taken further, I shall, however, briefly consider those issues.

Apportionment of damage 245 Even if the appellants' contentions had been upheld in regard to liability, their negligence, both in regard to fault and causative potency, far outweigh that of the respondent. 246 The danger of the exposed clutch was obvious, and obvious to the appellants. They did nothing about this obvious danger for several years. It would have been a simple matter for them to remove the danger. The existence of the exposed clutch was not known to the respondent. 247 The appellants were required only to deal with one obvious risk. The respondent, on the other hand, was concerned with a vast number of unknown, indeterminate risks at an infinite number of destinations. 248 Mr Mutton was present at the time of the accident and failed to call out any warning. 249 It is not in dispute that, if the respondent breached any of the relevant clauses of the OHS Regulation, the appellants must have been in breach of similar statutory duties applicable to them. 250 In my view, the respondent would have to bear at least 80 per cent of the blame and, in any event, there would be a strong argument that the respondent should be exempted from liability to make a contribution under s 5(2) of the Law Reform (Miscellaneous Provisions) Act (see Rolls Royce Industrial Power (Pacific Limited) v James Hardie and Company Pty Limited (2001) 53 NSWLR 626 (at 645 to 650, [117] to [149]).

Apportionment of costs in the action brought by Mr Kelman 251 In James Hardie and Company Pty Ltd v Wyong Shire Council (2000) 48 NSWLR 679, Handley JA (at 682, [13]) said that s 5 of the Law Reform (Miscellaneous Provisions) Act was intended to remedy the injustices caused by common law rules and there was "every reason for construing the right to contribution as extending to costs payable under the judgment to the plaintiff if such a construction is fairly open". His Honour concluded (at 684, [23]): "[T]he right to contribution conferred by s 5 extends, as a matter of right, to the costs payable to the plaintiff in addition to the damages."

Giles JA, in concluding that the right of a defendant tortfeasor to recover contribution from a concurrent tortfeasor conferred by s 5 extends to and includes any costs recoverable by the plaintiff, said (at 686, [36]): "The principle is one of natural justice, operating both at law and in equity, directed to achieving equality of benefit and burden."

To this extent, his Honour differed from Handley JA who spoke, as I have mentioned, of the right of contribution extending "as a matter of right". 252 Giles JA said further (at 689 to 690, [40]): "But if there to be complete recognition of the principle of natural justice, and equality of benefit and burden, costs should be treated in the same way as damages. The plaintiff could have sued either the tortfeasor found liable or the contributing tortfeasor, or both. Recovery from the tortfeasor found liable will discharge the contributing tortfeasor. If the plaintiff had sued the contributing tortfeasor instead of, or as well as, the tortfeasor found liable, the contributing tortfeasor would have been ordered to pay the costs. So it is just and equitable that the burden of the plaintiff's costs should be shared between the tortfeasors, so that the burden will not fall on one of them to the exclusion of the other because the plaintiff chose to sue only the one."

Thus, his Honour again based the rule on considerations of "natural justice" and applied considerations of justice and equity. 253 Heydon JA (at 690, [46]) agreed with Giles JA "and, subject to the qualifications advanced by Giles JA in relation to Handley JA's reasoning, with Handley JA". 254 The respondent drew attention to the Workers Compensation Regulation 2003 (NSW) which, by cl 91, provides: "Except as provided by this Subdivision, the parties to Court proceedings for work injury damages are to bear their own costs."

The respondent submitted that none of the exceptions to the general rule provided by cl 91 would have applied had Mr Kelman sued it. 255 The exceptions are:

(a) If the plaintiff fails in the action, he or she is to pay the defendant's costs (cl 90(2));

(b) If the plaintiff obtains a judgment less favourable than the employer's final offer at any mediation conducted under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the WIM Act"), the plaintiff is to pay the defendant's costs (cl 90(1));

(c) If the plaintiff obtains a judgment no less favourable than his or her final offer at a mediation conducted under the WIM Act, the employer's insurer is to pay the plaintiff's costs on a party and party basis (cl 89). 256 In the circumstances of this case the exceptions are all hypothetical. Nevertheless, regard must be had to them in determining whether, by reference to considerations of natural justice and what is just and equitable, the burden of the costs the appellants were ordered to pay Mr Kelman should be borne proportionately between the appellants and the respondent. 257 On the assumed basis on which this inquiry is predicated, it would be inferred that the plaintiff would not fail in an action against the respondent. This deals with the first exception. 258 As regards the second exception, no mediation occurred. That is because no proceedings were brought against the respondent and there was no call for mediation. I do not think it just and equitable for the absence of mediation in these circumstances to prejudice the respondent on this issue. 259 The third exception, in my view, is to be dealt with in the same way as the second exception. 260 In my view, therefore, the exceptions mentioned in cl 91 do not apply. It follows, in my view, that it is to be assumed that, had Mr Kelman successfully sued the respondent, each party would have paid its own costs. 261 On this basis, the respondent submitted, "[b]ecause the respondent would not have been liable to pay [Mr Kelman's] costs if he had successfully sued the respondent, s 5 of the [Law Reform (Miscellaneous Provisions) Act] does not allow the Court to order that the respondent contribute to the costs the appellants agreed to pay [Mr Kelman]". 262 The point the respondent made is that, unlike the situation in James Hardie and Company Pty Ltd v Wyong Shire Council, if Mr Kelman had sued the respondent instead of, or as well as, the appellants, the respondent would not have been ordered to pay the costs. Unlike the situation described by Giles JA in James Hardie and Company v Wyong Shire Council, it would then, on the respondent's argument, not be just and equitable that the burden of Mr Kelman's costs should be shared between the appellants and the respondent as tortfeasors. In other words, had Mr Kelman sued the respondent, it would not have been ordered to pay Mr Kelman's costs; therefore, there is no reason why it should contribute towards the costs the appellants are required to pay Mr Kelman. 263 In my opinion, these submissions have cogency and were I to have upheld the appeal, I would have upheld the respondent's arguments in this regard.

The "proportionality" issue 264 Section 151Z(1)(d) of the Workers Compensation Act provides: "(1) If the injury for which compensation payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: … (d) If the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages). 265 Section 151Z(2)(d) provides: "(2) If, in respect of an injury to a worker for which compensation is payable under this Act: … (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages…" 266 By the consent judgment, the appellants' liability to Mr Kelman under the Civil Liability Act was crystallised in the sum of $650,000 plus costs. 267 Assuming (despite the conclusions to which I have come) that the respondent is also liable to Mr Kelman for damages under the WCA, the damages notionally recoverable by Mr Kelman from the appellants, on the one hand, and the respondent, on the other hand, are significantly different. Mr Kelman's claim against the appellants (in respect of which the judgment of $650,000 was given) included past out-of-pocket expenses, future out-of-pocket expenses, non-economic loss and past and future loss of earning capacity. By s151G of the WCA, the only damages that Mr Kelman could recover from the respondent are damages for past economic loss due to loss of earnings, and damages for future economic loss due to the deprivation or impairment of earning capacity. 268 The respondent submitted that the consent judgment "must be a starting point of any process of determining a claim for contribution". That is, on the basis that "the consent judgment represents the [appellants'] entire liability to pay damages of all kinds to Mr Kelman". The respondent's argument involved attempting to divide up the consent judgment into various heads of damage and then determining what amount must have been awarded for each head of damage so as to arrive at the judgment sum of $650,000. The next step in the exercise, according to the respondent, is to determine the damages for which the respondent would notionally be liable to Mr Kelman under s 151G (namely, damages for past and future economic loss), and to do so proportionately to the judgment sum and the relevant heads of damage making up the judgment sum. 269 The rationale for the respondent's argument was put in its written submissions to Sully J as follows: "On the [appellants'] case against the [respondent] it would seem that the [appellants] regar[d] [themselves] as having secured a most advantageous settlement with Mr Kelman. If that is so, it must pass the benefit of that advantage to any other party from whom it seeks contribution. The right to claim contribution under the statute is a right to claim contribution towards the liability to pay damages. It is not a right to claim contribution towards the damages Mr Kelman might have received had he run his case to judgment rather than entering into the consent judgment." 270 The appellants, on the other hand, submit that under s 5 of the Law Reform (Miscellaneous Provisions) Act, the assessment of work injury damages (under the WCA), by which the amount of the respondent's contributions is to be calculated, must proceed by reference to the WCA alone. That is to say, the judgment for $650,000 is irrelevant and so are its component parts. 271 Sully J rejected the respondent's argument, relying on Ryan. Ryan was a case that involved the application of s 5 of the Law Reform (Miscellaneous Provisions) Act where the damages for which a joint tortfeasor was liable to the plaintiff was capped by the Motor Accidents Act 1988 (NSW). Sheller JA (with whom Mason P agreed) held that Mr Ryan, as a joint tortfeasor whose liability was so capped, "could not be asked to contribute to another or other tortfeasors an amount or amounts which exceeded his liability under the Motor Accidents Act" (at 635 [59]). 272 The respondent submitted that Ryan did not apply to claims based on s 151Z(2)(d), or, alternatively, that Ryan was incorrectly decided. The parties did not advance any oral argument on this part of the appeal and to discern the essential nature of their respective arguments was not easy. This is not a case where Ryan should be scrutinised. In my view, the issues raised can be decided without reference to it. 273 In Clout Industrial Pty Limited (in liq) v Baiada Poultry Pty Limited (2004) 61 NSWLR 111, Giles JA said (at 132, [60]) that under s 151Z(2)(d): "The damages recoverable by the worker from the third party are to be reduced by an amount referable to the contribution the third party can obtain from the employer, being the difference between the contribution which the third party can obtain and the contribution the third party could have obtained but for Pt 5 of the Workers Compensation Act ."

And (at 133, [61]): "In determining the amount of the contribution recoverable, it must be assumed that the damages the third party must pay are those damages which would have been paid if 'the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages': Grljak v Trivan Pty Limited (1994) 35 NSWLR 82 (at 88 to 89). The command in this respect is substantive: as was said by Mahoney JA in Grljak v Trivan Pty Limited (1994) (at 91): 'Paragraph (d) is not a mere adjunct to par (c). It operates according to its terms and, by its terms, it provides that 'the amount of the contribution … is to be determined as if … the damages payable by the third party were assessed in accordance with Div 3'. That, in my opinion, is a substantive provision limiting what otherwise would be the right under the Law Reform (Miscellaneous Provisions) Act 1965 to recover contribution from the employer.'" 274 In Forstaff Blacktown Pty Limited v Brimac Pty Limited (2005) 4 DDCR 179, McColl JA (with whom Hodgson JA and I agreed in regard to these issues) commented on Clout. Her Honour explained (at 198 to 199, [77]): "Underlying the reasoning in Clout is the premise that because the hypothetical s 151Z(2)(d) exercise requires assessment in accordance with Pt 5, Div 3 [of the Workers Compensation Act ], the Court should apply the provisions of that Pt 5 which would apply if the plaintiff worker had taken proceedings against the employer at the time the proceedings were commenced against non-employer." 275 Her Honour had earlier observed (at 198, [76]) that, in Clout, "[t]he Court held that the damages regime by which damages recoverable by a worker against that person's employer are assessed pursuant to s 151Z(2)(d) is the same regime adopted to assess damages recoverable by the worker against a non-employer tortfeasor pursuant to s 151Z(2)(c)". She noted: "Section 151Z(2)(d) is a substantive provision which limits what otherwise would be a non-employer tortfeasor's right under the [ Law Reform (Miscellaneous Provisions) Act ] to recover contribution from the employer tortfeasor: Sheller JA at [25], [31]; it proceeds on the assumption that s 5(1)(c) of the [ Law Reform (Miscellaneous Provisions) Act ] is applicable, and operates to modify its application in a limited way: Hodgson JA at [73]." 276 The dicta to which I have referred emphasise that s 151Z(2)(d) modifies the application of s 5 of the Law Reform (Miscellaneous Provisions) Act. "Modify" in this sense means that the amount of the contribution (under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act) that a claimant third party joint tortfeasor may recover from an employer joint tortfeasor, is to be determined as if "the whole of the damages were assessed in accordance with provisions of Div 3 as to the award of damages" within the meaning of s 151Z(2)(d). The manner in which damages are so assessed is well understood. 277 There is nothing in the express wording of the WCA that supports the proposition that the assessment of damages by which the amount of contribution is to be calculated must be proportionate to the applicable heads of damage making up the entirety of the damages which the claimant seeking a contribution from the injured plaintiff's employer is liable to pay the injured plaintiff. 278 Further, the legislation does not support the respondent's argument based on an implication to be drawn from the WCA. I would not uphold the respondent's submissions in this regard. 279 Since writing the above I have read what Hodgson JA has written about s 151Z(2)(d) and I agree with it.

Conclusion 280 I would dismiss the appeal with costs. **********

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