5 After he was injured, Mr Fitzpatrick sued Jobs Engineering and Ridolfo, claiming that they were negligent and liable to pay him damages. There were also some claims under the Trade Practices Act 1974 (Cth), but they are no longer relevant. Both Jobs Engineering and Ridolfo sought contribution from the other in the event that Mr Fitzpatrick succeeded in the action. The trial Judge dismissed all claims against the defendants. Mr Fitzpatrick has appealed in the first appeal against the dismissal of the claims against both defendants.

6 GIO was Jobs Engineering's insurer, and provided product liability cover under a policy which GIO had issued. Jobs Engineering claimed a declaration about its entitlement to indemnity from GIO under the policy in the event Mr Fitzpatrick's claim succeeded against it, and claimed the costs of defending the action under a costs extension clause in the policy. The trial Judge upheld both claims. GIO has appealed against this decision in the second appeal.

7 To understand the issues in the case and how Mr Fitzpatrick was injured, it is necessary to explain, by reference to undisputed evidence and

findings made, how the machine operated, how it was constructed and who constructed it. Much of the description and the evidence about the dimensions of the machine come from the evidence of Dr Chew, a mechanical engineer called as an expert by Mr Fitzpatrick.

8 The machine cut and split logs of wood into a size suitable for burning in fireplaces. Large logs were placed onto a log bed and held in position and then short sections of the log were cut off by a chain saw. The short logs were then dropped onto the floor of a splitter box. The logs were there clamped between two metal plates forming the sides of the splitter box. These plates were moveable and were powered by hydraulic rams, and they forced the log onto steel splitter knives. This split the log along its grain, breaking off firewood-sized pieces from the bottom half of the log. The metal plates then retracted and this freed up the top half of the log which dropped down onto the splitter box floor. The plates were again moved by the rams, clamping the top half of the log which was then forced onto the splitter knives, thereby completing the splitting of the log into firewood sized pieces. The pieces were carried off by a conveyer belt and dropped into a truck. Another short log was cut by the chainsaw and dropped into the splitter box to repeat the process.

9 The process was controlled by levers located inside the operator's cabin. The cabin was located adjacent to the splitter box. The splitter box was below the level of the cabin floor, although the nearside plate of the splitter box projected above the level of the cabin floor. The control levers were located on a control panel 440 mm above the cabin floor. There was a key operated switch on the side of the console which worked like a car switch and which could turn the engine of the machine on or off. The operator sat on a chair in the cabin facing the control panel with his left hand side facing out of an opening which overlooked the splitter box.

10 There were a number of control levers on the panel, only one of which I need mention. It was the splitter control lever and it had three settings, namely "forward", "reverse" and "neutral". As manufactured, the lever could be locked into neutral by a bar which could be pushed forward to lock the lever into position and then released by pulling the lock bar back. At the time of the accident this lever was broken but, in its broken state, it was still possible to put it into neutral by reaching under the top of the control panel.

11 When the splitter control lever was set in the "forward" position, the two metal plates moved towards the knives and the plate nearest the cabin would move away from the cabin. When the process went into reverse the two plates moved away from the knives and the plate nearest the cabin moved back towards the cabin. When set in "forward" and left in that position, the movement became automatic (providing a log did not jam), which meant that the plates would move forward and towards the knives and then back and away from them. The cycle took eight seconds forward and eight seconds back. When the lever was put into neutral, the splitter box plates would stop operating.

12 From time to time a log would misalign when it fell into the splitter box. The splitter box was designed to split logs along the grain and it would not work when the log misaligned. Sometimes the logs would jam on the knives and it was necessary for operators to turn off the machine, get down into the splitter box and to free the jammed wood. The operator had to watch the process to try and prevent the jamming from occurring.

13 Mr Fitzpatrick gave evidence that, when he acquired the machine, it came with a metal bar with a hook on the end which was designed to be used to move the wood around in the splitter box.

14 Before turning to the circumstances of the manufacture of the machine, I should refer to some other dimensions on the machine. From the splitter box floor to the top of the plate closest to the cabin was 680 mm. The splitter knives were 180 mm from the floor of the splitter box. The kick plate to prevent slipping was 240 mm high and the near metal plate of the splitter box extended a further 65 mm above that plate. According to Dr Chew, when fully retracted, the near metal plate of the splitter box was approximately 150 mm from the side metal plate at the edge of the cabin floor. Mr Job said that was not correct. I will have to refer to that evidence when considering a point raised in the GIO appeal (ground 2(c)).When fully extended, the near plate of the splitter box was approximately 640 mm from the side metal plate at the edge of the cabin.

Manufacture of the machine and purchase by Ridolfo

15 Machines of this general type were manufactured by Jobs Engineering in Tasmania. They were not a standard product because they were made to specific order and specifications, but the wood splitting mechanism did not vary. Jobs Engineering manufactured machines in the early days without cabins, but by the time of the sale to Ridolfo, a cabin was usually built onto his machines.

16 Ridolfo operated a firewood retailing business. In July 1996, having become aware of the machines manufactured by Jobs Engineering, he travelled to Tasmania to inspect them. Having done so, Ridolfo ordered a machine for use in his business. The order was for a machine without a cabin, because he decided that it would be easier to transport the machine without the cabin. Ridolfo took over the responsibility for the construction of the cabin, and Jobs Engineering did not participate at all in its design or construction.

Jobs Engineering demonstrates the use of the machine

17 When the machine had been constructed by Jobs Engineering (without the cabin), Mr Ridolfo, and other Ridolfo representatives, travelled to Tasmania to take delivery. Mr Job made it clear to the Ridolfo representatives that if anything had to be done inside the splitter box for maintenance, the mechanism should be locked off and the machine engine switched off. He explained that if a log had to be moved inside the splitter box, the mechanism could be locked off by means of the locking mechanism on the splitter box lever on the control panel so that the plates could not move Mr Job advised Ridolfo that if any wood had to be adjusted inside the splitter box, the splitter box mechanism should be locked off and the wood adjusted manually. Mr Job showed Mr Ridolfo how to use a metal rod to unjam blocks of wood (AB 379). Mr Job advised that if an operator needed to get inside the splitter box to release the logs jammed in the splitter knives, or to grease or oil the splitter knives, then the whole machine should be turned off.

Construction of the cabin and use of the machine by Ridolfo

18 Ridolfo took the machine back to Western Australia and arranged for an engineering contractor, G & G Welding, to construct the cabin. Between Mr Ridolfo and Mr Giancola of G & G Welding the cabin was designed and constructed. They had available to them some photographs of other machines manufactured by Jobs Engineering. The cabin, however, differed from those constructed by Jobs Engineering. Mr Ridolfo was conscious of safety, and he included a plate 240 mm high, placed on the floor of the cabin across the opening to the splitter box, to prevent an operator slipping from the floor of the cabin into the splitter box. He also arranged for some mesh to be placed on the cabin to protect the operator from wood chips from the chainsaw. A removable bar was also constructed to fit across the opening in the cabin adjacent to the splitter box. After the cabin had been constructed, Mr Ridolfo took photographs and sent them back to Jobs Engineering, who kept them in their records. The machine was then operated in Ridolfo's yard during the balance of 1996, all 1997 and in 1998 until September.

19 The machine was normally operated for Ridolfo by Mr Michael Harvey. From time to time the splitter box lever would break but it was easily repaired, and even in its broken state the lever could be put into neutral by reaching under the console control panel. The significance of the broken lever was contentious at the trial, but not so on this appeal.

20 The metal bar which was placed across the cabin opening next to the splitter box was removed and appears not to have been used by anyone.

21 After Ridolfo had been using the machine for a little under two years and around September 1998 Mr Fitzpatrick, who was operating a business called "Kelly's Wood Yard", approached Mr Ridolfo and asked if Ridolfo would sell the machine. Mr Ridolfo had not thought of doing so, but was interested if the price was right. There were negotiations, the price was agreed and an agreement to sell the machine entered into.

22 Mr Ridolfo explained to Mr Fitzpatrick how the machine worked and explained how logs would sometimes become jammed in the splitter box and, if this occurred, how the splitter box mechanism should be locked off. Mr Ridolfo explained to Mr Fitzpatrick that wood should be adjusted with a hooked metal bar which he supplied with the machine. Mr Ridolfo explained that if this was not successful, then the engine should be switched off and the operator would then get into the splitter box to free the wood.

Demonstrations by Mr Harvey and Mr Fitzpatrick's awareness of the risk of injury from the splitter box

23 When the sale between Ridolfo and Mr Fitzpatrick was completed, Mr Harvey went to Mr Fitzpatrick's premises and remained there for several days demonstrating the safe use of the machine. Mr Harvey showed Mr Fitzpatrick how to adjust logs that were out of alignment in the splitter box using the metal hook. He told Mr Fitzpatrick to turn off the splitter box by putting the lever into neutral before doing so.

24 Her Honour also made an unchallenged finding that, from these instructions, Mr Fitzpatrick was well aware what the appropriate operating methods were and was well aware of the dangers of placing any part of his body in the splitter box while it was still operating.

25 Instead of following the way of dealing with misaligned logs as explained by Mr Ridolfo and Mr Harvey, and as demonstrated by Mr Harvey, her Honour found - and it is not challenged - that Mr Fitzpatrick began using his foot rather than the metal hook to realign log rings when they misaligned upon dropping into the splitter box. Her Honour also found, and it is not challenged, that, contrary to the instructions and demonstrations, he did not place the splitter box lever into neutral, so that when he used his foot, the splitter box mechanism was moving to and fro in the process of capturing and clamping log rings and forcing them onto the knives. Mr Fitzpatrick also abandoned the use of the metal hook as a means of manoeuvring the logs. After the accident, it was found under the machine covered with sawdust.

26 Her Honour found that, when Mr Fitzpatrick used his foot to attempt to align the log on the day of the accident, this was "not an isolated [act]"; it was "a manoeuvre he had done before in similar circumstances". As a result, her Honour made the unchallenged finding that Mr Fitzpatrick had adopted an "unsafe system [of work] and one that was contrary to the demonstrations and verbal instructions and advice that had been given to him".

27 Mr Fitzpatrick operated the machine for six months and then, on 5 January 1999, in accordance with the unsafe system that he had adopted, Mr Fitzpatrick used his left foot to try and adjust a log which had landed in the splitter box at an angle. He gave the wood a "quick shove kick" to cause it to drop flat on the floor of the splitter box. He said suddenly the machine grabbed his foot. He was not able to explain in what way his foot was caught. His foot was then forced through the knives. This action dragged him away from the cabin and he could not reach the controls until his foot had passed through the splitter box knives and the system went into reverse when he was then able to reach the controls and switch off the key. He then called for help on the telephone. Her Honour held that it was not possible to determine exactly what position Mr Fitzpatrick was in when his foot was caught.

28 Her Honour found that the accident was not the result of inadvertence but the result of a deliberate action pursuant to the unsafe system that Mr Fitzpatrick had developed. By this, her Honour must have meant that his foot was not inadvertently placed near the splitter box.

29 It is clear from evidence that Mr Fitzpatrick gave at the trial that he recognised the risk of injury from the splitter box. He said that a person would have to be a "madman" (his words) to contemplate standing in the floor of the splitter box when it was operating. He spoke to Mr Harvey and another of Ridolfo's employees sometime after the accident. Her Honour found that he stated to them that he had deliberately placed his leg into the splitter box.

Mr Fitzpatrick installs a barrier in the cabin after the accident

30 After the accident Mr Fitzpatrick installed a barrier across the opening in the cabin. It was constructed of metal pipe tube and lined with steel mesh. It was 830 mm high. It was fixed onto brackets which were already on the cabin to house the bar which had originally been placed across the opening and which had not been supplied with the machine when Mr Fitzpatrick purchased it. The barrier, like the bar, was removable because access to the splitter box (when not operating) was necessary for maintenance or to deal with blockages.

31 Mr Fitzpatrick, in his proposed amended grounds of appeal, claims that her Honour erred by failing to make any finding about the duty of care owed by both Jobs Engineering and Ridolfo (grounds 1 and 2) and erred by finding that neither of them breached any duty of care (grounds 3, 4 and 6) and erred in relation to her findings on causation (grounds 8 to 12). The proposed amended grounds of appeal read:

"1. The learned trial Judge erred in law and fact in failing to find that the first respondent owed potential users of the machine, such as and including the appellant, a duty to take reasonable care in accordance with the standards of a competent and experienced machine designer/engineer to:

(a) incorporate in the machine such safety features as were necessary to enable the machine to be operated safely and to provide a manual which identified hazards; and

(b) ensure (by providing advice and information) that the person completing the manufacture of the machine was made aware of the safety features which should be installed, and written instructions which needed to be provided, to enable the machine to be operated safely.

1. The learned Trial Judge erred in law and fact in failing to find that the second respondent, which had undertaken the responsibility of completing the machine, and which had imported and supplied the machine to the appellant, owed a duty of care to potential users of the machine to install appropriate safety barriers and emergency stop switch, in accordance with the standards of a competent and experienced machine designer/engineer and relevant Australian Standard and WA regulations, and in accordance with appropriate safety criteria.
2. The learned Trial Judge erred in law and fact in failing to find that each respondent breached their duty of care, in the case of the second respondent, by failing to incorporate relevant safety features in the machine as referred to in ground 2, and in the case of the first respondent, by failing to provide adequate information and advice to the effect referred to in ground 1(b).
3. The learned Trial Judge erred in law in applying a subjective, rather than objective, test to the issue of breach of the duty of care on the part of the first and/or second respondents (including whether the respondents should have been aware of relevant design criteria, Australian Standards and regulations, and applied the same).
4. [Abandoned]
5. The learned Trial Judge erred in fact in failing to find that the first respondent could and should have installed an emergency switch in the vicinity of the splitter box, and if that had been done, that the injuries to the appellant would have been avoided.
6. [Abandoned]
7. The learned Trial Judge erred in law in applying an incorrect test of causation, and in particular, in applying a retrospective test by reference exclusively to what the appellant actually did, rather than assessing whether the respondents' wrongful conduct had generated the risk of injury, and whether or not the accident would have occurred if the respondents had not breached their duties.
8. The learned Trial Judge erred in law and fact in finding that the respondents' acts or omissions were not a cause of accident, because the action of the appellant in putting his leg in the splitter box was a deliberate and conscious act whereas the purpose of safety barriers was to protect against negligent as well as inadvertent acts on the part of an operator.
9. The learned Trial Judge erred in law in approaching the issue of causation on the basis that it was either the conduct of the respondents or the conduct of the appellant which caused the accident without adequately considering whether there were concurrent causes in the circumstances of this case. The learned Trial Judge should have found that the respondents' breaches of duty caused or contributed to the accident, and then considered whether or not the appellant was guilty of contributory negligence, and if so, her Honour should then have considered the appropriate reduction of damages recoverable on account of that contributory negligence.
10. The learned Trial Judge erred in law and fact in finding that even if a barrier had been installed, it is just as likely that the appellant would either have climbed over the barrier, or removed the barrier, when that was mere speculation, and in any event, there would not have been sufficient time to climb over the barrier to prevent a misaligned log becoming jammed, and the appellant would have suffered certain and serious injuries if he actually stood in the bottom of the splitter box whilst it was operating."

32 There was a ground 12, but senior counsel for Mr Fitzpatrick informed the Court that it was repetitive of grounds 8 and 9.

33 Ground 1 relates only to Jobs Engineering and ground 2 relates only to Ridolfo. I would grant leave to permit the amendments to the grounds of appeal. Although grounds 1(b) and 3 introduce claims that were not pleaded, evidence relevant to the claims was led without objection. No prejudice will be suffered by the other parties if the amendments are allowed.

Duty of care and breaches of duty alleged at trial and on appeal - Jobs Engineering

34 Mr Fitzpatrick alleged that Jobs Engineering was a manufacturer and that it owed a duty to users of the machine to take reasonable care to design and construct the machine to avoid risk of foreseeable injury. The pleaded case was that Jobs Engineering breached its duty by failing to design and manufacture and supply the machine with warning signs and with components such as a fixed barrier or interlocking barrier over the splitter box to make the machine safe to use and operate. It was also alleged that there was a defect in the splitter box lever. These were the allegations on which the parties concentrated. These allegations were all dismissed, and in the appeal by Mr Fitzpatrick no attempt has been made to renew them.

35 By the end of the hearing of the appeal, the sole allegation against Jobs Engineering in the grounds of appeal and the proposed grounds of appeal was that it owed a duty to Mr Fitzpatrick to take reasonable care to ensure that "the person completing the manufacture of the machine" (ie Ridolfo) was given certain advice and information concerning the construction of the cabin, and that Jobs Engineering breached that duty.

36 Mr Fitzpatrick also alleged, and in this appeal continued to allege, that Ridolfo was the manufacturer of the cabin and that Ridolfo owed to him a duty as manufacturer to install a fixed barrier and an emergency switch. Ridolfo denies that it was a manufacturer or that it owed this duty.

37 It is convenient at this stage to set out some general observations about duty and standard of care. The relationship of manufacturer and consumer is now an established category of relationship which, if it exists, will mean that the manufacturer will owe a duty of care to consumers of the product manufactured: Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at [29], Hayne and Callinan JJ at [156] - [160], Heydon J agreeing at [177].

38 There is no common law regime of strict liability for products which are inherently dangerous, and a manufacturer is not an insurer against injury: Suosaari v Steinhardt [1989] 2 Qd R 477 at 487 or, expressed in another way, there is no absolute duty on a manufacturer to design or manufacture a defect free or accident proof product. See also Bull v Samson & Rover Mowers (Aust) Pty Ltd [1984] 2 Qd R 489 at 499; Suosaari v Steinhardt (supra) at 487. A manufacturer owes, to a consumer of the manufacturer's product, the duty to exercise reasonable care to prevent the product causing foreseeable risk of injury or loss to the consumer: Dovuro Pty Ltd v Wilkins (supra) [29] per McHugh J.

39 The circumstance that a product is inherently extremely dangerous, or, that the gravity of the risk of injury is serious, does not require more than a reasonable response. The circumstance will, however, require keener foresight or greater diligence or a high degree of care: Adelaide Chemical and Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514 at 523 per Dixon J.

40 If there is a foreseeable risk of injury then, in determining the content of the duty of care, that is the standard of care, the tribunal of fact must determine what a reasonable man would do by way of response to the risk, and the perception of the reasonable man's response calls for a consideration of the magnitude of the risk, the degree of 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: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [55]. It is only when those matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to a reasonable man placed in the defendant's position. The judgment in each case of what is a reasonable response to a foreseeable risk depends on the circumstances. Sometimes "inaction" is a course reasonably open to a defendant even though the taking of action may have prevented the accident: Dovuro v Wilkins (supra) per McHugh J [38].

41 Reasonable foreseeability of injury is necessary before a duty of care can be established, but it is not sufficient to establish the existence of a duty: Hill v Van Erp (1997) 188 CLR 159, per Dawson J at 174; Sullivan v Moody (2001) 207 CLR 562 at [42]. The test of foreseeability has been described as "undemanding": see Dovuro Pty Ltd v Wilkins (supra) [104] per Kirby J. In almost every case in which a plaintiff suffers damage, it is foreseeable that if reasonable care is not taken, harm may follow; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2005) 205 CLR 254 per Hayne J. In considering foreseeability of risk it is not necessary that the manufacturer should foresee the precise risk of injury or how it occurred: Graham Barclay Oysters Pty Ltd v Ryan (supra) at [87] per McHugh J.

42 The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response: Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234 at [36]; Dovuro v Wilkins (supra) at [38]. This does not mean that if whenever a risk is obvious there will be no duty of care or no breach. The High Court in Thompson v Woolworths (Q'land) (supra) said (at [37]):

"... The weight to be given to any [consideration] is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration."

43 In looking at the reasonable response to a foreseeable risk, it is necessary to recall that there will be times when others do not act carefully or prudently. As a result, "the obviousness" factor is not to be elevated into some doctrine or general rule of law. See Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [162] - [163]. Obviousness of risk is a descriptive phrase that signifies the degree to which risk of harm may be apparent. Obviousness is likely to be accorded greater weight when negligence consists only of a failure to warn of a relevant risk. That is because warnings only serve a purpose if they are likely to inform a person of something that the person does not already know or to draw attention to something that might be overlooked or forgotten. See Vairy v Wyong Shire Council (supra) at [7].

44 At present in New South Wales there is a debate about whether obviousness of risk is relevant in determining the duty of care owed by highway authorities or is relevant to the breach of duty of care. Thus in Burwood Council v Byrnes [2002] NSWCA 343 and Richmond Valley Council v Standing [2002] NSWCA 359; (2002) Aust Torts Reports 81-679, it was held that obviousness of risk is relevant to the duty of care, this based on what was said by Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 2006 CLR 512 at [163]. On the other hand, Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407 and Sutherland Shire Council v Henshaw [2004] NSWCA 386 hold that obviousness of the risk to a careful pedestrian goes to the breach of the duty of care. Ipp JA has visited this topic on several occasions. See Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 at [53]; Clarke v Coleambally Ski Club Inc [2004] NSWCA 376 at [26] - [33] and most recently in Edson v Roads & Traffic Authority (NSW) [2006] NSWCA 68; (2006) Aust Torts Reports 81-839.

45 In my opinion it is possible to make too much of the debate. If a foreseeable risk of injury exists in circumstances where there is a relationship between the plaintiff and defendant which will give rise to the generalised duty to take reasonable care to avoid risk of foreseeable injury then, in my opinion, the obviousness of the risk becomes important when considering the content of the duty. This is the standard of care or, in more basic terms, what it is that the defendant "must do" to discharge the generalised duty of care. Thus, if a risk is obvious and the plaintiff is injured, the conclusion might (not must) be that the defendant had no duty to do anything to prevent or reduce the risk of injury.

46 In Marsden v Ydalia Holdings [2006] WASCA 52; (2006) Aust Torts Reports 81-840, I said at [112] that obviousness is relevant when it comes to the question of whether there has been a breach of duty or not. So it is, but obviousness bears first on the issue of what a person must do in performance of the generalised duty of care. In other words, to consider obviousness first in relation to whether there is a duty to do or not to do something in the particular circumstances of the case. This is not only consistent with what was said by Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (supra), but also with what was said in Vairy v Wyong Shire Council (supra) per Gleeson CJ and Kirby J at [8], where their Honours said:

"It is impossible to state comprehensively, or by a single formula, the circumstances in which reasonableness requires a warning ... Often, the answer will be influenced by the obviousness of the danger, [and] the expectation that persons will take reasonable care for their own safety ..."

It is also consistent with what was said by the High Court in the joint judgment in Thompson v Woolworths (Q'land) (supra) as quoted above. In Brodie v Singleton Shire Council (supra), Gaudron, McHugh and Gummow JJ said that the duty owed by a highway authority (as discussed in [150] - [165]) was owed to users of a road "exercising reasonable care for their own safety" [163].

Jobs Engineering - The appellant's case at trial and final form of the grounds of appeal

47 In her reasons for decision the trial Judge summarised the issues at trial at [40] where she said:

"The plaintiff claims that the first defendants owed him a duty of care to ensure that the machine was safe to use and operate. Paragraph 27 of the statement of claim alleges that this duty extended to the supply of a machine that was safe to use and operate, the provision of warning signs and a written manual of operating instructions, a reliable operating lever for the splitter box mechanism and design and manufacture of the machine that complied with Australian Standards. It is also claimed that the first defendants owed a duty to advise the plaintiff that the machine had been sold to the second defendant in a partly constructed condition and of the terms of the original supply agreement between the defendants. However, this issue was not actively pursued by the plaintiff and the evidence does not establish that the first defendants knew that the machine had been sold to the plaintiff by the second defendant until after the sale. There is no continuing obligation or duty on the part of the first defendants to advise the plaintiff that the original machine had been purchased without a cabin when Mr Job was contacted by the plaintiff in relation to a spare part some time after the sale and clearly some time after he had been operating the machine. In any event there is no evidence and nor was it seriously suggested that this could be in any way causative of the plaintiff's accident."

48 The allegations of breach of duty were all dismissed by the trial Judge. It may be observed that although her Honour referred to what the plaintiff claimed was the duty of care owed by Jobs Engineering, no finding was made about whether such a duty of care was owed. Jobs Engineering was the manufacturer of the machine without the cabin. A plaintiff in a negligence action must prove that the defendant owed the plaintiff a duty as a member of a class: Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423 at 435; Vairy v Wyong Shire Council (supra) at [6] and [122]; Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 at [18]. Jobs Engineering was a manufacturer willing to sell to any person willing to buy the wood processing machine, and therefore owed a duty of care to such consumers and persons who might use the machine. Mr Fitzpatrick was a member of that class. On the low grade test, the risk of injury was foreseeable. Although the trial Judge did not expressly find that Jobs Engineering owed Mr Fitzpatrick a duty to exercise reasonable care to prevent the machine causing foreseeable risk of injury, it is implicit that she did so find. This is because she went on to examine the allegations of breach which is only necessary if there is a duty of care. The alleged breaches contain within them a statement of the alleged standard of care.

49 At the end of the hearing of the appeal, apart from ground 6, the only allegation against Jobs Engineering concerning breach of duty was in the third ground of appeal.

50 There was much controversy about the formulation and interpretation of ground 1 (which relates to duty) and ground 3 (which relates to breach) during the hearing, but senior counsel for the appellant made it clear that notwithstanding par (a) in ground 1, the only allegation which Jobs Engineering faced was the allegation that the content of the duty owed by Jobs Engineering was as set out in ground 1(b). That is, an alleged duty to take reasonable care to "ensure by providing advice and information" to "the person completing the manufacture" that such person was made aware of "safety features ... [to] be installed", namely the need for the installation in or on the cabin of a fixed barrier and an emergency stop switch and of the written safety instructions "which needed to be provided" to "enable the machine to be operated safely". Mr Fitzpatrick alleged that this duty was breached.

51 The allegation that Jobs Engineering breached a duty it owed to Mr Fitzpatrick (to provide advice to Ridolfo) was not pleaded in the statement of claim. It may also be observed that the formulation of duty is unusual. It contends not that Jobs Engineering owed a duty to potential users, ie consumers, to warn them of the danger, but instead that Jobs Engineering owed a duty to consumers to take reasonable care to "ensure" that "the person completing the manufacture of the machine" was "made aware" of "safety features" and "instructions". Cast in this way, the alleged duty is in effect a duty to warn, ie a duty to warn Ridolfo (as the manufacturer) of the need for the "safety features" and "instructions".

52 This allegation sits uncomfortably with, and must be seen in the context of, evidence and unchallenged findings made by the trial Judge that Jobs Engineering had no responsibility for the design or construction of the cabin on which it is alleged by Mr Fitzpatrick that a barrier and switch should have been installed. It is to that evidence and those findings I now turn.

The evidence and findings concerning responsibility for the design and manufacture of the cabin

53 The evidence on the subject was given by Mr Job and Mr Ridolfo. Mr Job gave evidence that Ridolfo "wanted a cabin left off for freight reasons, and also they wanted to build their own. There was some talk about some airconditioning and fans, but we would never have done anything like that, so I kept right out of that part of it." Mr Job was asked if Mr Ridolfo said anything else about how they would build the cabin and he said "Yes. He said they had their own workshop in Western Australia and all the facilities to complete one satisfactorily and to bring it up to all Western Australian requirements. That's as far as he - like I didn't know what any requirements here were. I agreed to it."

54 He was also asked whether there was any discussion about guards and he said that it was never discussed. Mr Ridolfo gave evidence that while he was in Tasmania, he did not take any steps to place an order for the machine because he wanted to do a "bit more research into it" and that when he came back he:

"... called the Department of Transport and also, I think it was DOHSW at the time, or Worksafe, just to try and ascertain exactly what we needed to allow for in terms of the cabin. At the time we were looking at possibly moving the machine around, so if that was the case, we wanted to see if that was (a) legal, because it would have to be registered, and also, if we were going to go down the path of ordering it without the cabin, what sort of things we would need to allow for."

55 He was then asked what he did after these inquiries were made and what he decided to do, and he gave evidence that:

"... Then we would basically order the machine without a cabin.

How did you go about ordering the machine?---I called Mr Job, said that we were interested in ordering the machine. We had raised it with him on our visit in Tasmania, and we just confirm that we would like the machine to be made without the cabin, was there any problem with that. He said no, it was a very simple cabin, just angle iron and sheet metal for that could pretty much be made anywhere, and then, obviously, I sent a fax after that confirming the details and the order."

56 He also gave evidence that, after the machine came to Western Australia, he arranged to work in conjunction with G & G Welding to construct the cabin. Between them they settled upon the design and method of construction of the cabin.

"[Jobs Engineering] contracted with [Ridolfo] to provide a machine without the construction of a cabin. Although [Ridolfo] had photographs and had seen the basic construction of the cabin on similar machines in Tasmania the construction of the cabin was designed and implemented independently by [Ridolfo]."

"The machine was specifically ordered to be constructed without a cabin and supplied in that form to [Ridolfo] to facilitate its transfer to Western Australia. ... I am satisfied on the basis of the evidence of Mr Ridolfo and Mr Giancola that they brought independent views to bear on the design and requirements for the cabin to be constructed. This is confirmed by the distinct design employed in the cabin."

These findings are not challenged. They do not support the pleading in appeal ground 1(b) that Ridolfo was "completing the manufacture of the machine". That pleading suggests that Ridolfo was to complete in accordance with a plan conceived by Jobs Engineering. In fact, Ridolfo took over the responsibility for the planning, design and construction of the cabin. Ridolfo did not carry out work to complete what Jobs Engineering would have done. The design and construction was carried out "independently", as the trial Judge found.

59 The generalised duty owed by Jobs Engineering to the users of the machine to avoid risk of foreseeable injury, did not oblige Jobs Engineering to supervise the work carried out by Ridolfo (and it is not alleged that it should), and it did not, in the particular circumstances of this case, oblige Jobs Engineering to give advice to Ridolfo about the need for a barrier or emergency switch. The circumstances are, the fact that Ridolfo told Jobs Engineering that it (Ridolfo) would design and manufacture the cabin in its own workshop, the fact that it had the facilities to complete the cabin satisfactorily, that it told Jobs Engineering that it had the facilities to bring the cabin up to Western Australian requirements, the fact that there was no high degree, or any degree of technical expertise necessary, which Jobs Engineering had, and Ridolfo did not have, to recognise the hazard which was presented by the splitter box and the fact that the danger presented by the splitter box was obvious to Ridolfo. Ridolfo did not request any advice and there was no contractual obligation requiring Jobs Engineering to provide advice.

60 In those circumstances, Jobs Engineering was not under a duty to consumers to exercise reasonable care to "ensure" that Ridolfo was made aware of the safety features which should be installed in the cabin and was not under a duty of care to provide any "written instructions which needed to be provided, to enable the machine to be operated safely". If there had been some aspect of the machine as supplied which contained some hazard of which Ridolfo was not aware then there may have been a duty owed by Jobs Engineering, to consumers, to advise Ridolfo to carry out work to diminish or guard against the hazard. In the circumstances though, the hazard was plain for all to see, it was an obvious risk, and Ridolfo undertook - to Jobs' knowledge - the construction of the cabin on which it is alleged the barrier and switch should have been mounted.

61 Even though the duty as formulated in the ground of appeal was not pleaded, the trial Judge in fact expressed a view on the duty now contended for. Her Honour said:

"[Jobs Engineering] did not have a duty of care to ensure that the cabin that was built by [Ridolfo] was constructed to include a barrier guard if one was required. I find [Jobs Engineering] were also not under a duty of care to advise [Ridolfo] that the cabin should be constructed to include such a barrier guard if it was required."

62 I agree with those conclusions. As a result, ground 1 and ground 3 (insofar as ground 3 relates to Jobs Engineering) should be dismissed. It is not therefore necessary for me to deal with the application by Mr Fitzpatrick to amend his statement of claim.

63 It is also not strictly necessary to deal with any of the other grounds that affect Jobs Engineering, but as they were argued I will deal with them.

64 Ground 4 alleged that the trial Judge erred in law in applying a subjective, rather than objective, test to the issue of breach of the duty of care on the part of the first and/or second respondents (including whether the respondents should have been aware of relevant design criteria, Australian Standards and regulations, and applied the same). Ground 6 alleged that the trial Judge erred in failing to find that the first respondent could and should have installed an emergency switch in the vicinity of the splitter box, and if that had been done, that the injuries to the appellant would have been avoided.

65 Ground 4 is irrelevant, even though it refers to Jobs Engineering, because it relates to the application of the Australian standards and regulations in relation to the manufacture of the machine. The contention is that the barrier guard and emergency switch were required by the Australian standard. The appeal complains that her Honour found only that Jobs Engineering did not know about the existence of the Australian standard and that her Honour should have gone on to consider whether Jobs Engineering ought to have known about it. This ground made sense when it was accompanied by grounds alleging that Jobs Engineering was under a duty to install a barrier or a switch, because Mr Fitzpatrick alleged the Australian standards required these to be installed. Those latter grounds were originally in the notice of appeal. They were abandoned for good reason, namely that Jobs Engineering did not design or construct the cabin. The duty of care, or rather standard of care, now alleged in ground 1 did not oblige Jobs Engineering to install the barrier or switch or comply with the Australian standards. This ground must therefore be dismissed.

66 Ground 6 cannot be sustained because, although it alleges that Jobs Engineering could, and should, have installed an emergency switch in the vicinity of the splitter box, it was contended in submissions that it should have been installed on the cabin. Jobs Engineering did not construct the cabin. Ground 6 is a remnant of the allegations made in the original notice of appeal and which were abandoned. Ground 6 contradicts the premise behind ground 1, which is that the cabin was constructed by Ridolfo. The Judge's finding that the cabin was constructed by Ridolfo is not challenged. As a result, ground 6 should be dismissed.

67 The grounds dealing with causation, namely 8, 9, 10 and 11, will be dealt with later in these reasons because the same grounds are presented against Ridolfo. I repeat that grounds 5 and 7 were abandoned and ground 12 may be ignored because it adds nothing to other grounds.

Ridolfo - The pleaded allegations and the issue on appeal concerning duty and standard of care and breach of duty - Grounds 2 and 3

68 The pleaded case against Ridolfo included a claim under the Trade Practices Act as well as a claim in negligence which had various aspects. All of the claims were dismissed. The surviving allegations in this appeal are that Ridolfo owed a duty of care to Mr Fitzpatrick and breached its duty of care in two respects as appear from grounds 2 and 3. Ground 3 alleged that the trial Judge erred "in failing to find" that Ridolfo "breached [its] duty of care ... by failing to incorporate relevant safety features in the machine as referred to in ground 2." Ground 2 alleged an error by the trial Judge in failing to find that Ridolfo, "which had undertaken the responsibility of completing the machine, and which had imported and supplied the machine" to Mr Fitzpatrick, "owed a duty of care to potential users of the machine to install appropriate safety barriers and emergency stop switch in accordance with the standards of a competent and experienced designer/engineer and relevant Australian standard and WA regulations and in accordance with appropriate safety criteria."

69 Some observations should be made about this ground of appeal. First, nothing was said in the appeal about non-compliance with "WA regulations", so that part of ground 2 may be ignored. As an aside, I should mention that senior counsel for Mr Fitzpatrick handed up a number of pieces of legislation concerning occupational safety. They showed that governments from time to time have legislated to provide for occupational safety. Senior counsel made it clear however, that he did not rely on this to prove that any relevant statutory obligation was imposed on the respondents. Counsel for Jobs Engineering objected to this material. It is hardly necessary to rule on this objection because counsel for Mr Fitzpatrick made no reference to the material after it was objected to. Nevertheless, the objection should be upheld because the material is irrelevant and does not bear upon the resolution of this appeal.

70 Secondly, the reference to safety "barriers" (plural) in ground 2 can be ignored. Counsel for Mr Fitzpatrick made it clear that the only complaint was about the absence of "a" barrier (singular) constructed across the opening to the cabin like one that was constructed by Mr Fitzpatrick after the accident. Ground 2 must therefore be read as alleging that Ridolfo failed to "incorporate" a barrier guard in or on the cabin which would have prevented Mr Fitzpatrick gaining access to the splitter box, and failed to install a safety switch on the cabin. It is alleged that these omissions caused the injuries. Another type of barrier - an interlocking barrier - was the subject of consideration at trial but not on this appeal.

71 Ground 2 alleges that the trial Judge erred in "failing to find" what duty of care was owed by Ridolfo. I agree with the appellant in this regard. At [48] her Honour said:

"In par 25 of the statement of claim the plaintiff alleges that the second defendant owed the plaintiff a duty of care, inter alia, to ensure that the machine was safe to operate. The duty of care is said to arise because of the sale of the machine and because the second defendant was aware that the plaintiff would operate the machine to process firewood and that the second defendant represented that the machine would be safe to use for that purpose and also failed to advise that it had purchased it from the first defendants without a cabin. Paragraph 26 sets out the particulars of the second defendant's negligence."

72 Having said what Mr Fitzpatrick alleged, her Honour did not make any finding about whether a duty of care was owed and therefore made no finding about the content of any duty. Her Honour merely decided that none of the pleaded omissions, such as the failure to provide instructions or the failure to provide an "adequate" splitter box control lever, could be sustained.

73 It is therefore necessary to decide whether a duty of care was owed by Ridolfo to Mr Fitzpatrick, and if so what its content was. In the statement of claim, Mr Fitzpatrick described Jobs Engineering as the manufacturer but did not describe Ridolfo as a manufacturer. However, in par 25 of the statement of claim it was alleged that Ridolfo "as suppliers of the machine" owed a duty of care to Mr Fitzpatrick to ensure that it was designed and manufactured in accordance with Australian standards. In par 26 it was alleged that the accident was caused by Ridolfo's negligence in that the machine was "supplied" by Ridolfo "and delivered" "without safeguards ... including barrier guards".

74 In Mr Fitzpatrick's written submissions to this Court it is submitted that (par 20, AB 22):

"[Ridolfo], in completing and importing and supplying the machine, was under a duty to potential users to apply the knowledge and expertise of a reasonable engineer/designer in order to ensure that the machine was properly completed, and supplied in a form that was reasonably safe to use. It assumed a responsibility to properly complete the machine."

75 The written submissions filed by Ridolfo submitted that (AB 64):

"... [Ridolfo] was not the designer or manufacturer of the machine.

... and that

(10) The relationship between [Mr Fitzpatrick] and [Ridolfo] was that of a vendor and purchaser of second-hand equipment ..."

76 If a manufacturer is a person who makes something, then clearly Ridolfo was a manufacturer because it made the cabin, or caused it to be made. However, when Ridolfo purchased the machine it was a consumer. When it designed and constructed the cabin it did not do so intending to sell it. It was for Ridolfo's own use. There was a foreseeable risk of injury if a person was caught up in the splitter box, but this was not a risk which Ridolfo had created. After using the machine for two years Ridolfo decided to sell it when approached by Mr Fitzpatrick offering to buy it. Ridolfo was not a manufacturer in the business of selling machines to a class of consumers the individuals of which were unknown to it. A manufacturer in business to sell its products is under a duty to design and manufacture to take account of the fact that the sale may be to persons some of whom might be experienced in the use of such a product, but some of whom may be inexperienced. The manufacturer must also allow for the possibility that the class of consumers includes the intelligent and the unintelligent, the careful and the not so careful.

77 In this case, Ridolfo was dealing with a person who had approached it with a proposal that Ridolfo sell the machine. Any duty owed by Ridolfo was not owed to a class of persons. If there was a duty of care it was a duty owed to Mr Fitzpatrick. Ridolfo was the vendor of the machine which carried with it a foreseeable, but obvious, risk of injury. The risk was obvious to Ridolfo and from what appears below, Mr Fitzpatrick was told all about the risk, or rather how to avoid the risk of injury, and from this, and from the fact that the risk was obvious, Mr Fitzpatrick knew about the risk of injury. In my opinion Ridolfo was not a manufacturer. Ridolfo was the vendor of second-hand goods. The distinction is significant. Every weekend the Sunday newspapers are full of offers to sell second-hand goods. The persons selling those goods are not required to modify goods which carry with them a risk of injury to diminish that risk. There is however still a relationship which may impose a duty to exercise reasonable care to avoid foreseeable risk of injury by warning of some danger in the goods which the vendor may know about but which the purchaser may not. There was a foreseeable risk of injury in this case. The required response to that risk depends on a further consideration of the circumstances, which are considered under the next heading.

78 I should say immediately however that, in my opinion, the response required from Ridolfo; the standard of care he had to observe as the vendor of second-hand goods, was to warn of any danger of which Ridolfo was aware and which was not obvious. In my opinion, Ridolfo, having been approached by Mr Fitzpatrick to sell the machine, was under no duty to carry out work before the sale was completed. Ridolfo was not under any duty to install a barrier guard to prevent negligent use by the purchaser of the machine. There was some discussion during the appeal about whether a guard was necessary to prevent a person accidentally falling into the splitter box, but it is clear that an assessment was made by Ridolfo about the risk of this happening and it responded to it, as explained below, by installing the 240 mm plate. In any event, this case is not concerned with guards or devices necessary to prevent injury from accidental entry into the splitter box. It is concerned with a contention that guards or devices were necessary to prevent an operator deliberately introducing a limb into the splitter box. The contention was that Ridolfo was under a duty to install the barrier and switch in order to avoid the risk of injury from deliberate but negligent use of the machine, a contention which should be rejected for reasons appearing under the next two headings.

79 Ridolfo purchased the machine knowing of the risk of injury from the splitter box. It then constructed the cabin for its own use, making its own assessment of the likelihood of the risks of injury from the machine. Mr Ridolfo saw that it was possible that an operator might slip from the cabin, so Ridolfo constructed a 240 mm high plate on the floor of the cabin adjacent to the opening near the splitter box to prevent the chair from slipping off the edge. Ridolfo also placed some mesh to protect against another source of potential injury, namely the chainsaw; but it did not construct a barrier to prevent workers deliberately putting their foot in the splitter box and nor did Ridolfo erect any warning signs. It did neither because it regarded the risk of injury to be obvious. Mr Ridolfo said:

"Well, basically you had a one metre wide knife with thousand of PSI pressure behind it. If anything got stuck in there it was going to come off second best ...

Did you reinforce that with the operators at any stage?---It was always discussed whenever we were, you know - we didn't show many people how to use it, but obviously when we were first sort of showing our operator, you know, if you got to get - if you have to unblock anything you may sure you lock the mechanism and that. It wasn't actually put out in black and white, 'Don't walk in there, don't step in there,' because - yes, I took that just as an obvious deterrent.

Did you put an obvious sign up?---No."

"In the splitter box - [it] was pretty obvious to you. What hazard are you referring to?---Well, just putting any sort of limb in there, anything, knowing, you know, the pressure behind it and the very nature of it, yes, I just - well, in my opinion it was obvious that you were at much greater risk by putting anything in there."

"... I wasn't ... thinking that we had to stop someone putting their limb or whatever in there."

82 He also said that he was not told by Mr Job that the splitter box area was dangerous and a safety hazard but he said, "No, but that was - no, that was obvious, but, no, he didn't." The cabin Ridolfo had constructed allowed the machine to be operated for two years. There was no evidence of any mishap or injury to any operator in that time. Further, Mr Fitzpatrick had the use of the machine demonstrated to him and he was shown how to safely use the machine.

83 The hazard or the risk of injury from the machine was plain for all to see. The machine could be operated without the operator having to introduce a limb into the splitter box while it was operating. The risk of injury was so obvious that no reasonable person would consider the need to prevent access to the splitter box while it was operating.

Ridolfo under no duty to warn of the risk of injury from the splitter box

84 Mr Fitzpatrick alleged at trial that Ridolfo had a duty to warn about the risk of injury. As pleaded, it was alleged that this duty should have been discharged by warning signs. There were no warning signs, but her Honour found that Mr Fitzpatrick had in fact been warned of the risk of injury and that Mr Fitzpatrick was then well aware of the risk. At the moment the question under consideration is about whether there was a duty to warn. In my opinion, Ridolfo was not under a duty to warn of such an obvious risk.

85 However, assuming I am wrong in that regard and there was a duty to warn about the risk of injury from the splitter box, Ridolfo discharged that duty. Ridolfo took considerable care to demonstrate the safe use of the machine and, by doing so, warned Mr Fitzpatrick of the danger posed by the splitter box. Her Honour found that Mr Fitzpatrick was aware of the danger. There is no challenge to this finding. Any duty Ridolfo had to warn of the danger was discharged.

Did Ridolfo, as part of its duty, have to install a barrier and emergency switch before supplying the machine to Mr Fitzpatrick?

86 The conclusion reached above is that Ridolfo was the vendor of second-hand goods and not a manufacturer, and did not, in the circumstances, have a duty to warn about the risk of injury, but in any event had warned of that risk.

87 However, in case that conclusion is wrong, and Ridolfo should be held to be a manufacturer, then the question arises as to whether Ridolfo was obliged to install these items in discharge of its duty to exercise reasonable care to avoid foreseeable risk of injury to users of the machine as modified by Ridolfo.

88 Mr Fitzpatrick submits that Ridolfo owed a duty of care to "install" "appropriate safety barriers and emergency stop switch", that is a fixed barrier and an emergency switch. That means that Mr Fitzpatrick is contending that before the machine was supplied to Mr Fitzpatrick, Ridolfo was obliged to then construct and add to the machine a barrier and an emergency switch, even though it had been under no obligation to do so when it built the cabin on to the machine. The submission is therefore that Ridolfo had a duty to do more than warn of the risk of injury. In this regard it is important to keep in mind the objective nature of the inquiry about what a defendant should do in discharge of his duty. Hayne J in Vairy v Wyong Shire Council (supra) at [124] put the point in this way:

"Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of duty of care which was a cause of the plaintiff's injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be 'nothing'."

89 The hazard created by the splitter box was not one created by Ridolfo. A court is much less ready to find a defendant who has not created a danger liable for it: Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 79 ALJR 1104 [76]. Ridolfo was a consumer when it bought the machine containing the splitter box. It is true that Ridolfo designed and constructed the cabin, but it was doing so for its own use, and in any event and more importantly it assessed the risks and concluded that the only risk to be guarded against was that of accidentally slipping into the splitter box. Ridolfo guarded against this by installing the 240 mm plate. It has not been contended that this was not an effective safeguard from injury resulting from an accidental fall into the splitter box. It also installed a bar across the opening but it was removable and appears not to have been used.

90 A barrier of the kind Mr Fitzpatrick refers to was only necessary to prevent a person doing what no reasonable person would do. An emergency switch was only necessary to save such a person. The likelihood that Mr Fitzpatrick would ignore the advice to use the metal hook, ignore the advice to shut the splitter box into neutral before adjusting wood and deliberately use his foot to move wood while the splitter box was operating, in short to adopt an unnecessarily unsafe system of work, was not something which a reasonable person would regard as a necessity to guard against. Ridolfo was not Mr Fitzpatrick's employer. An employer may be liable if an employee adopts an unsafe system of work and is then injured because there is an ongoing relationship and the employer is obliged to exhort the employee to use a safe system of work. Ridolfo had no ongoing relationship with Mr Fitzpatrick. As Heydon JA said in Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204:

"All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks."

91 An example of this was given in Thompson v Woolworths (Q'land) (supra), where the court at [35] referred to a motorist approaching a pedestrian crossing. The motorist will reasonably assume that the assembled pedestrians will observe the lights which control the crossing.

92 Ridolfo did not consider it necessary to install these features for his own use. There was no evidence that in the two years Ridolfo owned the machine there was any circumstance which alerted it to the need for these devices. The question then is whether there is anything in Ridolfo's conduct which should lead this Court to conclude that it was not the conduct of a reasonable person. In my opinion Ridolfo's conduct was the conduct of a reasonable person. The obviousness of the risk, the expectation that any reasonable operator of even limited intelligence would take care for his own safety, and the fact that there was no need, in normal operation, for an operator to put a limb near the splitter box while it was in motion meant, in my opinion, that Ridolfo was not required to do more than warn new operators of danger of which they might not be aware. In my view, Ridolfo was not required to install the barrier or an emergency switch.

93 It is important to bear in mind that a defendant is not negligent merely because it fails to take a course of conduct which would have eliminated the risk of damage. A plaintiff must show that the defendant was not acting reasonably in failing to take that course. If inaction is a course reasonably open to a defendant, the plaintiff fails to prove negligence even if there were alternatives open to the defendant that would have eliminated the risk: Dovuro v Wilkins (supra) [38] per McHugh J.

94 Mr Fitzpatrick points to Australian Standard 4024.1 - 1996 and suggests that its provisions required Ridolfo to install a barrier. The trial Judge found that Jobs Engineering did not know about the existence of the Australian standard but, as I have said, so far as Jobs Engineering is concerned, the Australian standard is irrelevant because Jobs Engineering did not manufacture the cabin. The remaining allegation involving the Australian standards is that Ridolfo did not comply with them. An Australian standard comes to represent a consensus of professional opinion and practical experience as to sensible safe precautions and a standard of reasonable conduct; Onetech Pty Ltd v Shaw [1999] WASCA 289 at [17]. The Australian standard in this instance reflects the case law on negligence. Thus, cl 5.5.1 states that after a hazard is identified "risk estimation" should be carried out in relation to the hazard. Clause 5.5.2 reads:

"The risk associated with a particular situation or technical process is derived from a combination of the following elements:

(a) The severity of harm.

(b) The probability of occurrence of that harm, including the following:

(i) The frequency and duration of the exposure of persons to the hazard.

(ii) The probability of occurrence of a hazardous event.

(iii) The technical and human possibilities to avoid or limit the harm (eg awareness of risks, reduced speed, emergency stopping device, enabling device)."

95 In cl 7 of the standard, which deals with selection of safeguards, there is a reference to circumstances where a hazard or risk cannot be eliminated or avoided by design. In the case of Ridolfo, the hazard from the splitter box could not be eliminated or avoided by design because Ridolfo did not build the splitter box. Clause 7.1 of the standard reads:

"When a hazard or risk cannot be eliminated or avoided by design, the provision of safeguards shall be considered. Four critical factors to be considered in the selection process are -

(a) the severity of potential injury;

(b) the frequency of access or entry to the danger zone and/or the time of exposure to the hazard;

(c) the possibility of avoiding the hazard; and

(d) the type, process and operating requirements."

96 The standard then sets out suggested safeguards in cl 7.3 where "operational access" is required. Operational access is defined as access which is required during normal operation. In this case there was no need for operational access. During the normal operation of the splitter box, access was not only not required, but the system and method of work recommended by Ridolfo involved keeping away from the splitter box and using the metal hook to adjust misaligned logs after putting the splitter box into neutral. Clause 7.4 specifies the type of guards to be used when maintenance access was required, that is, where access was not required during normal operation. This assumes that the device would continue in operation during maintenance, because it refers to trip devices as one means of shutting down the equipment. This machine had the splitter box lever which allowed for the shutting down of the equipment where maintenance was to be carried out.

97 In my opinion, although Mr Ridolfo did not advert to the Australian standards, he did consider the factors mentioned in cl 7.1. He took into account the severity of potential injury. He was well aware that severe injuries would follow if part of a person's body was introduced into the splitter box when it was in operation. On the other hand, he considered that there should be no access or entry to the danger zone while the splitter box was operating. He considered the possibility of avoiding the hazard. He considered that the use of the steel hook and the splitter box control lever to shut down the splitter box would mean that the hazard could and should be avoided by operators at all times, and there was no evidence that his experience produced any evidence of the existence of a risk that operators were inclined to use a foot to deal with misaligned logs. He placed a steel plate on the floor to prevent operators slipping into the splitter box.

98 The "type, process and operating requirements" of the machine did not require an operator to place any part of his person into the splitter box while it was in operation. "Casual access" was defined in the standard as including access for maintenance operations and the ability of other persons to inquisitively or unwittingly enter a danger zone. There was no need for an operator to gain access for maintenance operations and the obviousness of the risk made it extremely unlikely that any person would "inquisitively or unwittingly" enter into the splitter box while it was in operation. That a person would use his foot to adjust the wood was clearly not regarded as likely by Ridolfo.

99 There is nothing in the Australian standard which should lead this Court to conclude that Ridolfo was obliged to install the barrier or the emergency switch.

100 This was given little attention in the appeal. The pleaded case was that a dead man switch should be installed. This was abandoned when Mr Chew gave evidence that it was not appropriate for this kind of equipment. A dead man switch is a type which is held during operation and which upon release stops the operation of the equipment.

101 The allegation then changed on appeal to an allegation that Ridolfo should have mounted a switch on the cabin which could have been used to stop the machine by Mr Fitzpatrick after his foot was caught. However, it was never explained precisely where on the cabin the switch could be mounted. It was said that it could have been mounted in a position where Mr Fitzpatrick could have hit it once his foot became caught, but this assumes that a reasonable person in Ridolfo's position was to assume that Mr Fitzpatrick was likely to ignore the very simple and safe procedure of placing the splitter box in neutral via the splitter control lever and using the hook.

102 Two years' experience and the existence of a simple and effective means of putting the splitter box into neutral meant that any reasonable person in Ridolfo's position would conclude that there was no likelihood that this sort of accident would occur.

103 Grounds 2 and 3 should be dismissed insofar as they relate to Ridolfo.

104 If (contrary to my conclusion) Jobs Engineering did owe a duty of care to advise Ridolfo of the need for a barrier and switch or to provide written instructions, or if (contrary to my conclusion) Ridolfo owed a duty of care to install a barrier guard and a switch before selling to Mr Fitzpatrick, then the issue of causation arises.

105 The allegations of negligence against both respondents are allegations of negligent omissions. The question whether each negligent omission caused the loss is a question of fact: Bennett v Minister of Community Welfare (1992) 176 CLR 408 (at 428). The causal connection is to be determined in accordance with commonsense notions of causation, and not in accordance with philosophical or scientific theory of causation: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506.

106 If, but for the negligent act or omission, the actual damage suffered by a plaintiff would not have occurred, it will often be possible, as a practical matter, to conclude the issue of causation in the plaintiff's favour. However, the "but for" test is not the exclusive test: March v E & M H Stramare (supra), 412 - 413 per Mason CJ, Deane and Toohey JJ; Chappel v Hart (1998) 195 CLR 232, [25] per McHugh J, [62] per Gummow J, [93] per Kirby J and [110] Hayne J.

107 The chain of causation may be broken for purposes of attributing legal responsibility for the injury if there is an intrusion of a new cause which disturbs the sequence of events, something which can be described as "unreasonable" or extraneous or extrinsic: Bennett v Minister for Community Welfare (supra) at 428; Chappel v Hart (supra), at [93] per Kirby J (at [93.5(d)]).

108 In the case of negligent omissions, the question of causation is answered by reference to what would, or would not, have happened had the omission not occurred: Bennett v Minister for Community Welfare (supra) at 420. This involves a comparison between two sets of facts, one actual and one hypothetical: Chappel v Hart (supra) at [113] per Hayne J.

109 In ascertaining what a plaintiff would have done had there been no negligence, the court must adopt a subjective approach. That is, to ask what the individual (the plaintiff) would have done had the omission not occurred (in the case of the claim as it was formulated, the question must be what Ridolfo would have done had the advice been given by Jobs Engineering): Nagle v Rottnest Island Authority (supra) at 433; Rosenberg v Percival (2001) 205 CLR 434, [24], per McHugh J; Chappel v Hart (supra) at [32] and [93.7], cf however, Callinan J's comment about the limited utility of direct evidence given in the witness box on this subject: Rosenberg v Percival (supra); Commissioner of Main Roads v Jones (supra) at [83].

110 Generally speaking, if an injury occurs within an area of foreseeable risk then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury: Bennett v Minister for Community Welfare (supra) 420 - 421; Chappel v Hart (supra) at [68] per Gummow J.

111 Finally, it may be that a negligent omission was ineffective as a cause of damage if the event which occurred would probably have occurred in the same way, even had the breach not happened: Daniels v Anderson (1995) 37 NSWLR 438 at 539; Chappel v Hart (supra), per Kirby J, [93.5(e)].

112 The duty Mr Fitzpatrick alleges Jobs Engineering breached was a duty owed to Mr Fitzpatrick to exercise reasonable care to ensure that "the person completing the manufacture", ie Ridolfo, was advised of the need for the barrier and switch. I have already found that Ridolfo was not a person completing the manufacture, but I will assume a finding to the contrary. If the advice had been given by Jobs Engineering, the question which must then be asked is whether the advice would have been followed. Counsel for GIO did ask the question "If Mr Job had given you some drawings or instructions on how to build a barrier as part of the operator's cabin to prevent the operator from putting a limb into the splitter box, would you have done so?" Mr Ridolfo answered "If I had been given drawings I would say I would have, yes." Even though Callinan J in Jones (supra) has expressed reservations about the value of this type of evidence, it is evidence which in most cases still has to be given, even though it must be closely scrutinised in the light of other evidence in the case. Taking into account all the evidence which was led it seems highly unlikely that even if Jobs Engineering had given the advice, Ridolfo would have constructed the cabin with a barrier, because Ridolfo, which was well aware of the risk of injury, reached its own conclusions about what was necessary to protect its operator and then constructed the cabin without a barrier or switch.

113 As a result, Mr Fitzpatrick must fail on the issue of causation concerning Jobs Engineering.

114 If Ridolfo owed a duty of care to do more than warn of the risk of injury, namely to construct a barrier and switch, then the breach of that duty was causally related to the injury suffered by Mr Fitzpatrick if there was no unreasonable conduct by Mr Fitzpatrick. I will now turn to the issue of Mr Fitzpatrick's conduct.

115 It is commonplace for cases to be determined on the basis that the defendant was negligent and the plaintiff guilty of contributory negligence with the result that damages are reduced by reason of the plaintiff's contributory negligence. However, sometimes a plaintiff's conduct may be such that the defendant's negligent act or omission is no longer held at law to cause the plaintiff's damage. This follows from the recognition that causation at law is concerned with the assignment or attribution of liability to one person to pay damages to another: March v E & M H Stramare (supra) at 509.

116 While legislation allowing apportionment and case law reflects a strong policy or tendency in favour of concluding that a plaintiff's negligent conduct should not sever the causal link between a defendant's negligent act or omission and damage to the plaintiff, there are limits. There will be cases where the plaintiff's conduct is so unreasonable that the causal link will be broken. The cases where this is so are likely to be uncommon but this was, in the trial Judge's opinion, such a case.

117 Her Honour considered that Mr Fitzpatrick was entirely the author of his own misfortune and that he was injured as a result of his adoption of an unsafe system of work. This was, in effect, a conclusion that his conduct was a "supervening event" or, to use the English version of the Latin phrase often employed, "a new intervening act". If the intervening act constitutes conduct of the plaintiff in circumstances where there has been a breach of duty by a defendant, then the conduct must have been "unreasonable" before it can amount to a new intervening act. See McHugh J in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 22 and Bennett v Minister for Community Welfare (supra) per McHugh J; Chappel v Hart (supra) at [93]; M'Kew v Holland & Hannen & Cubitts (Scotland) Ltd [1970] SC (HL) 20. In M'Kew (supra), the defendant's negligence had caused an injury to the plaintiff's left leg. The plaintiff subsequently attempted to descend a steep staircase without a handrail in the normal manner and without adult assistance, and received a severe fracture of his ankle. This conduct was held to be unreasonable and to sever the chain of causation. As Mason CJ said when discussing M'Kew (supra) in March v E & M H Stramare (supra) at 517:

"The decision may be explained by reference to a value judgment that it would be unjust to hold the defendant legally responsible for an injury which, though it could be traced back to the defendant's wrongful conduct, was the immediate result of unreasonable action on the part of the plaintiff. But in truth, the decision proceeded from a conclusion that the plaintiff's injury was the consequence of his independent and unreasonable action."

118 On the other hand, the fact that a plaintiff's action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct. In some situations the defendant may come under a duty of care not to expose a plaintiff to a risk of injury arising from deliberate or voluntary conduct, or to guard against that risk. Employers are under such a duty to employees. Sometimes the intervening action was, in the ordinary course of things, the very kind of thing likely to happen as a result of the defendant's negligence: March v E & M H Stramare (supra) 517 - 518 per Mason CJ.

119 Applying the law to this case, there is no doubt the "but for" test is satisfied. If the barrier had been in place the accident would not have happened. However, as McHugh J said in Chappel v Hart (supra) [62], echoing what Mason CJ said in March v E & M H Stramare about M'Kew (supra):

"... it may be 'unjust' to hold a defendant legally responsible for an injury which, though it may be traced back to the wrongful conduct of the defendant, was the immediate result of unreasonable action on the part of the plaintiff."

120 The trial Judge concluded that "in the circumstances of this case" it was the plaintiff's action which caused the accident and not any breach of duty by either of the defendants [60]. The "circumstances" were set out in [54] - [59], being the conduct of Mr Fitzpatrick in adopting an "unsafe manner" of work [58], the fact he ignored the instructions he was given and the fact that he did not use the metal hook. In short, his unreasonable conduct caused the accident.

121 Whether conduct should be judged to be unreasonable is a subject on which minds may differ but, in my opinion, her Honour's conclusion, in effect that Mr Fitzpatrick's conduct was unreasonable, reveals no error. Neither respondent was an employer under a duty to exhort Mr Fitzpatrick to take care or to take steps to stop him adopting an unsafe system of work. Ridolfo did not have to guard against the possibility that Mr Fitzpatrick would ignore the obvious risk of injury, abandon the use of the metal hook, and ignore the advice to take the simple step of turning off the splitter box. The adoption by Mr Fitzpatrick of an unsafe system was not the very thing likely to happen as the result of the failure to put a barrier in the cabin or to put an emergency switch on it. There was no evidence that Ridolfo, in nearly two years of use, observed any tendency for operators to adopt the unsafe system of work which Mr Fitzpatrick adopted. Her Honour's conclusion was evaluative and as such it is not for this Court to consider what conclusion it would reach absent demonstrated error: CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at [12]. In my opinion, her Honour's conclusion that Mr Fitzpatrick's conduct was unreasonable and was "the" cause of the accident was open on the evidence and reveals no error. I agree with her Honour that the injury was not caused by any alleged breach of duty by Ridolfo or Jobs Engineering.

122 Her Honour also gave a second and alternative reason for holding that causation was not proved. This was that her Honour considered that Mr Fitzpatrick would, in any event, have jumped over the barrier, thus holding that the omission was ineffective as a cause of the accident. This is challenged in ground 11 as speculative reasoning. In my opinion the conclusion was not justified on the evidence, even though the trial Judge clearly considered that Mr Fitzpatrick had a cavalier attitude to safety. In my opinion, the conclusion either amounted to speculation, or alternatively it was unfair to reach that conclusion because it was never put to Mr Fitzpatrick that he might have done so, and it is not clear to me how, in jumping over the barrier, it would have been possible to land safely and then to reach the log in time to give it the quick kick that he thought it necessary to do in order to realign the wood.

123 As a result, I would uphold ground 11 but, for the reasons set out above, I would dismiss grounds 8, 9 and 10.

124 Upholding ground 11 does not upset her Honour's conclusion that no breach alleged caused Mr Fitzpatrick's injury for the first reason she gave. I do not have to deal with ground 12 because this was said by senior counsel for Mr Fitzpatrick to be repetitive of grounds 8 and 9.

125 If, contrary to my opinion, Mr Fitzpatrick's appeal succeeds, the court will have to consider the issue of contributory negligence. In my opinion, Mr Fitzpatrick was grossly careless in his conduct which led to the accident. He did not use the metal hook. He did not put the splitter box into neutral. He was well aware of the danger posed by the splitter box. He ignored the careful instructions and demonstrations from Mr Ridolfo and Mr Harvey. He developed an unsafe system of work which ignored those instructions and demonstrations. The unsafe system of work materially contributed to, and caused, the injury. He must bear the greater part of responsibility for the accident and therefore the apportionment must be heavily against him. Even if all of the allegations contained in the grounds of appeal were made out against both respondents, I would hold Mr Fitzpatrick to have been responsible to the extent of three-quarters, and so any damages should be reduced by three-quarters.

126 This appeal concerns issues arising under the terms of an insurance policy which contained a product liability clause. Orders were made at the commencement of the trial giving leave to GIO to take part in the trial of the main action and to cross-examine witnesses. An order was also made that the third party would be bound by the outcome in the main action. GIO did not call any evidence.

127 Under the pleadings, Jobs Engineering claimed to be entitled to be indemnified by GIO in respect of the claims brought against them by Mr Fitzpatrick and Ridolfo pursuant to the product liability clause.

128 Orders were made that the only issue to be tried at the trial before French DCJ was the question of the liability of GIO to indemnify Jobs Engineering pursuant to the terms of the policy. GIO made admissions that it issued a public liability policy to Jobs Engineering that provided product liability cover, and an admission was also made that the cover would apply to this claim by Mr Fitzpatrick but for a design exclusion clause. The trial Judge held the design exclusion clause did not apply. As a result, her Honour declared that:

"[GIO] is obliged to indemnify [Jobs Engineering] to the extent of the total amount that [Mr Fitzpatrick] may recover, including costs against [Jobs Engineering]."

129 Jobs Engineering obtained a costs order against Mr Fitzpatrick, but this will not cover all the costs sought in the third party proceedings, and there is the possibility that an order made against Mr Fitzpatrick may not be satisfied. As a result, Jobs Engineering sought an order that GIO pay its costs under the cost extension clause. Her Honour made an order in favour of Jobs Engineering that GIO pay the costs of defending the action, including the costs in the contribution proceedings and the costs in the third party proceedings. The order was in the following terms:

"[GIO] is liable under the Third Party's Combined Business Policy of Insurance (No 50 Bus 0620236) to pay all legal costs, charges and expenses incurred by [Jobs Engineering] in defending [Mr Fitzpatrick's] claim for damages and [Jobs Engineering's] claim for contribution in this action and in prosecuting [Jobs Engineering's] contribution claim against [Ridolfo]."

130 In addition, her Honour made an order that costs be taxed on an indemnity basis. The order made was:

"[GIO] pay to [Jobs Engineering] their costs of and incidental to defending [Mr Fitzpatrick's] action and [Jobs Engineering's] contribution action and in respect of [Jobs Engineering's] contribution action against [Ridolfo] (including reserved costs) to be taxed on a solicitor and own client basis."

131 Finally, there was an order made by her Honour that:

"[GIO] pay to [Jobs Engineering] their costs of the third party proceedings to be taxed."

132 All of these declarations and orders are challenged by GIO.

GIO's application for leave to amend its grounds of appeal

133 After the Court had reserved its decision, GIO asked for the Court to reconvene and then sought leave to amend its grounds of appeal and defence in accordance with a minute entitled "Appellants Substituted Amended Grounds of Appeal". There are three main aspects to its application.

134 At the hearing of the appeal, counsel for GIO said that GIO abandoned ground 2(c), which involved a challenge to a finding of fact made by the trial Judge. Counsel for GIO now says that, upon reflection, GIO wishes to restore this ground. This application was "formally" opposed. Counsel for Jobs Engineering agreed that it would suffer no prejudice if ground 2(c) were restored. There being no prejudice ground 2(c) should be restored.

(b) Grounds relating to the design exclusion clause

135 Grounds 3, 4 and 5 in the minute contend that the design exclusion clause applied. It has been contended by GIO both at trial and on appeal that the exclusion clause applied. The new grounds are unnecessarily verbose but they cause no prejudice and leave to amend should be granted.

136 By ground 6 in the minute, and by additional words in ground 10, GIO seeks to add a ground of appeal raising reliance on an exclusion clause not previously adverted to by GIO at trial or during the hearing of the appeal. The exclusion cl 10(a) (s 7) is one which reads that GIO is not liable for claims:

"Arising

(a) out of a breach of duty owed in a professional capacity ..."

137 GIO claims that this has been prompted by the amendments made by Mr Fitzpatrick in the main appeal. Counsel for GIO points in particular to ground 1 of the grounds in the main appeal which, in its final formulation, alleged a duty "to take reasonable care in accordance with the standards of a competent and experienced machine designer/engineer". The fact is, however, that the amendments made by Mr Fitzpatrick during the appeal did not introduce those words. Those words were in the original grounds of appeal and were not touched by the amendments. The amendments to the grounds of appeal in the main appeal were mainly amendments to delete allegations. Amendments to ground 1 deleted allegations that Jobs Engineering had a duty to incorporate a barrier and emergency switch. Ignoring those amendments, the only words added were to insert, after the word "ensure", the words "(by providing advice and information)". The amendments to ground 3 were merely to properly plead a breach in the same language as the alleged duty in ground 1. Although there was much discussion at the appeal about the meaning of ground 1 in the main appeal, the debate related entirely to the existence in ground 1(a) of some allegations which were ultimately unquestionably abandoned by the end of the hearing of the appeal.

138 The result is that the submission that GIO's amendments are prompted by the amendment to the notice of appeal in the main appeal cannot be accepted. The application can therefore be seen as an attempt to raise a new point for the first time without having been prompted by any conduct of the other parties to the appeal. I will therefore deal with it on that basis.

139 It is only in exceptional circumstances that an amendment should be allowed after a trial, and after the hearing of an appeal, to introduce, for the first time, reliance on an exclusion clause in an insurance policy. It is only where it is in the interests of justice that such an amendment should be allowed. It will not be in the interests of justice to advance such a ground if it lacks merit. It will not be in the interests of justice if the point could possibly have been met by calling evidence during the trial.

140 GIO argues that reliance on exclusion cl 10(a) in s 7 in the policy involves only a question of law, and contends that all evidence necessary had been led at the trial. On the other hand, Jobs Engineering contends that evidence on the point would have been required if the exclusion clause had been relied on at trial. Counsel for Jobs Engineering referred the Court to Ham v Somak Travel Ltd [1998] EWCA CIV 153, in which case an attempt by an insurer to rely on a professional exclusion clause for the first time on appeal was dismissed. The clause, which differed from the one here, would have required evidence about whether a pilot of a hot air balloon was "a professionally qualified person". In my view that decision is not relevant because of the difference in language. As to whether other evidence could have been led, I do not know, but I am not prepared to accept the general assertion by counsel for Jobs Engineering that other evidence would have been led. Parties opposing amendments to pleadings are often heard to say that they have lost the opportunity to lead evidence on the point, but if that is the contention, they must be precise about the evidence they would want to lead.

141 I now turn to the merit of the proposed new ground. The exclusion clause only applies if it arises out of a breach of duty owed by the insured in a "professional capacity". In FAI General Insurance Co Ltd v Gold Coast City Council [1995] 2 Qd R 341 the Court of Appeal of Queensland, in a joint judgment, considered an exclusion clause in a policy which stated that it did not apply to "the rendering of or failure to render professional advice or service". The Court held that it would not be every breach of duty in the course of the conduct of the practice or business of a municipal authority which would be a breach of professional duty. In a joint judgment the Court said:

"The meaning of 'professional' will ... vary with context. 'Professional', however, connotes 'pertaining or appropriate to a profession', 'engaged in one of the learned professions'."

142 Their Honours said that the point was illustrated by a decision of the British Columbia Court of Appeal in Chemetics International Ltd v Commercial Union Assurance Co of Canada (1984) 11 DLR (4th) 754. The policy in that case excluded liability in respect of the rendering of "professional services". The relevant alleged failure was to give proper operating instructions in a manual. The manual was prepared by a qualified engineer. That was held to be irrelevant in a determination about whether the particular instruction in issue was characterised as professional service. It was held not to be. The provision of operating instructions was not the provision of professional services. The service was not one which could usually be expected to be provided only by a professional engineer. It was simply part of a service provided by a vendor to a purchaser of the particular plant. See FAI (supra) at 77,812. That accords precisely with the circumstances in this case.

143 In this case, the breach of duty alleged was the allegation that Jobs Engineering did not "advise or inform" Ridolfo about the need for a barrier or safety switch on the cabin. This is longhand for alleging that Jobs Engineering did not tell Ridolfo about the need for a barrier and switch. For a manufacturer to tell someone is to inform them or advise them but, in my opinion, it is not possible to contend that this amounts to the giving of advice in a professional "capacity".

144 GIO refers to GIO General Ltd v Newcastle City Council (1996) 38 NSWLR 558 at 568 (a decision which was overturned on appeal to the High Court on other grounds). On that page Kirby P said that the term "professional" in the context of professional indemnity insurance is very broad. However, he added that the term involved, in the context of a policy written for a local government authority, advice and services of a skilful character "according to a discipline", and that the Council was engaged in the rendering of "professional advice or service" when it examined and analysed building proposals. In New South Wales v Council of the City of Penrith [1999] NSWCA 42; [1999] 102 LGERA 102, Mason P and Powell JA held that the mere provision of information by a town clerk as to what was in the council's records, and what the council's future intentions were in respect of a parcel of land, was not a professional service. In my opinion there is no merit in the argument that the alleged omission to give advice about the need for a barrier or switch was a breach of duty in a professional capacity. Such an alleged omission was merely the omission to provide information.

145 Another reason for refusing leave to amend is based on GIO's conduct of the case. Counsel for GIO in her submissions said that GIO could have pleaded reliance on this exclusion clause at trial but that it did not appear to be relevant to what had been pleaded and to the manner in which the trial was run. In University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483, the High Court said:

"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."

146 Counsel's quoted comments reveal that GIO made a decision not to rely on exclusion cl 10(a) at trial. Further, GIO did not seek to rely on that clause even when it saw the grounds of appeal in the main action which have not relevantly significantly altered.

147 GIO should therefore be refused leave to amend to add reliance on exclusion cl 10(a), because of the way GIO conducted its case, choosing not to rely on the clause and now seeking to do so, and also, because the argument GIO wishes to advance has no merit.

148 GIO also seeks leave to amend par 4 and par 6 of its defence to plead reliance on exclusion cl 10(a). For the reasons given above, I would also refuse leave to make those amendments.

149 The main issues raised in GIO's appeal concern the proper construction and application of terms in the product liability policy issued by GIO, but I must first deal with the factual issue concerning the construction of the machine.

150 GIO in ground 2(c), challenges a finding of fact which is not challenged by Mr Fitzpatrick. Ground 2(c) reads:

"The learned trial Judge erred in law and in fact in finding that the respondent's failure to design and install a barrier guard did not fall within the meaning of 'defective design' in the exclusion clause ... The fact that the appellant in appeal number 61/2005 no longer relies expressly on the respondents' failure to design and install a barrier guard as a ground of negligence, does not preclude the appellant on appeal from relying on this aspect of the respondents' breach of duty.

Particulars

...

(c) The learned trial Judge erred in fact in finding that the barrier guard could only have been erected on the cabin floor itself and that it would have been impractical and unsatisfactory to do so prior to shipping of the wood cutting machine (at [42] and [79]). ... The learned trial Judge should have found that the barrier guard could have been affixed to the bed of the trailer (Chew at T 153, Job at T 269 - 271 ...) ...

The learned trial Judge should have found that if the respondents had a duty of care to incorporate in the machine such safety features as were necessary to enable the machine to operate safely, the content of that duty would have been to design the wood cutting machine with a barrier guard and to install it prior to shipping ..."

151 A third party may appeal as of right against the judgment between a plaintiff and defendant if the third party directions provided that he or she should be at liberty to appear at the trial, take such part as the Judge should direct and be bound by the result of the proceedings between the plaintiff and the defendant: Hadley v Hazian Pty Ltd, unreported; FCt SCt of WA; Library No 950334; 13 July 1995. Directions were given in that form.

152 It is not now contended by Mr Fitzpatrick that Jobs Engineering was negligent by failing to install the barrier guard before the machine was sent to Western Australia, but GIO by ground 2(c) wants to so contend. I will refer first to the evidence and then to her Honour's finding.

153 Mr Chew was cross-examined by counsel for GIO. This followed examination-in-chief by counsel for Mr Fitzpatrick and cross-examination by counsel for Jobs Engineering and Ridolfo. GIO's counsel put to Dr Chew that the barrier guard could have been fixed to the bed of the trailer. The obvious objective of GIO's counsel was to establish that it should have been installed by Jobs Engineering and then to argue that this failure was a design defect and that the design exclusion clause would therefore apply to exclude GIO's obligation to indemnify Jobs Engineering under the policy. Counsel for GIO adopted this approach even though it was potentially disadvantageous to Jobs Engineering and hence to GIO if GIO's argument about the design exclusion clause did not succeed.

154 The interchange between counsel for GIO and Dr Chew was as follows:

"Yes, for example, a guard could have been fixed to the bed of the trailer?---I'm not quite with you. You say the bed of the trailer?

Maybe it would be helpful to look at one of your photographs. While I'm looking for a suitable photograph there was a gap between the metal plate nearest to the operator's cabin in its retracted position and the left-hand edge of the operator's cabin floor. Is that right?---Yes.

For example, in that gap a barrier guard could have been erected?---Yes, it could. Let me try and get that photo.

Maybe in your latest report are some better photographs showing the trailer bed. The first photograph may be in exhibit 10, your recent report, photograph 12?---Yes, I'm looking at it at the moment. I assume learned counsel is referring to the trailer chassis?

Yes?---Yes, it is possible to do that.

So a barrier guard could have been affixed to the trailer chassis between the operator's cabin floor and the first metal plate nearest to the cabin?---Yes. Yes, it is possible."

155 When Mr Job went into the witness box, counsel for GIO persisted with her objective. Once again, after Mr Job had been examined and cross-examined by the other parties, counsel for GIO, over several pages, attempted to have Mr Job accept that the barrier could and should have been constructed by Jobs Engineering before the machine was sent to Western Australia. The section of evidence is too long to set out in this judgment, but a selection of some parts of the evidence will be enough to give a clear idea of what Mr Job thought of the suggestion being put to him:

"Now, there was no reason, Mr Job, if you had been requested to, you could not have put a barrier guard on the operator's cabin or on the operator's platform prior to shipping, which would have been affixed between the metal bar which you can see on photograph B, running behind those two people standing there and the metal pole that supports the console on photograph C, next to the operator's knee there?---There was no point in putting anything there because they had to take it off when it got to the cabin.

...

But if you had told Ridolfos that it was necessary to have the barrier and that you would not have the machine shipped without a barrier being there, they would have had to build the cabin around the barrier, not so?---That's just being silly. There's no point in putting anything there to build round.

Well the point is, Mr Job, that if it is necessary to have a barrier to protect the operation from the splitter box, then a barrier could have been affixed on this operator's platform without a cabin having been built at that stage?---What's the point of having a barrier when there's no cabin to fix it to.

...

In the same way you could have, on the left-hand side there affixed another metal bar or pole and the same on the other side of the trailer and put a barrier round from that one metal bar across to the other car and therefore blocking off the access of the operator to the splitter box?---It's just not practical.

It would certainly have been better to have a barrier there and preventing the operator to put his foot in than having no barrier at all?---Well, a barrier should have been put in when the cabin was built.

But the barrier did not have to be put in on the cabin, it could have been put next to the operator's platform?---No, there's no room for it.

The metal plate that pushes the splitter box mechanism does not quite move right back to the floor of the operator's cabin. It leaves about 15 centimetres, 150 mils, according to Dr Chew's measurements. Is that right?---Did Dr Chew manage to check the length of the stroke of the rams that were still available?

Please answer my question - - -?---That case comes right back to the floor.

Well, this is not what Dr Chew said?---I don't care what he said because he didn't do a proper report on it. He would have seen there was still available stroke lifting the rams and the whole unit was adjustable so it could open fully, which would take to pushing phase right back to the floor of the cabin or deck as you call it.

...

I'm sure, Mr Job, with your ability to, you know, think up a machine like that there would have been ways and means to fix a barrier?---Yes, fix it on the side of the cabin or where it's out of the way - - -

On the side of the platform of the cabin?---On the side of the cabin when it's built.

But there was no reason why you could not have fixed it to a machine like this as shown on photograph B of exhibit 30 even if the purchaser of that machine never wanted a cabin?---There was just no point in putting anything on it because if I had to build it, it would be redone.

...

You have heard that Dr Chew was of the opinion that the machine should have had a barrier in spite of all the other bits and pieces that it had?---Across the cabin face.

Dr Chew was of the view that there should have been a barrier between the operator and the splitter box?---I agree with that but it had to be put on once the cabin was built."

156 Having heard that evidence, her Honour then concluded at [42] and [43]:

"42 There was some exploration of the possibility of guards or barriers being placed around the splitter box mechanism on the machine in the course of cross-examination of Mr Job and Dr Chew. However, it became apparent that the only practical barrier would have to be erected on the cabin itself. ... Although it would have been physically possible for [Jobs Engineering] to construct a guard independently of the cabin by fixing it to the floor of the control area that is an impractical and I consider an unsatisfactory method of construction. The whole point of [Ridolfo] constructing the cabin once it arrived in Perth was to facilitate freight. A safety barrier or door already in place would also complicate the design and construction of a cabin.

1. [Jobs Engineering] contracted with [Ridolfo] to provide a machine without the construction of a cabin. ..."

At [79] her Honour repeated:

"The only practical way for a barrier guard to be designed and installed was to be designed and installed into the cabin when it was constructed."

157 Ground 2 of GIO's appeal, which I have set out above, contends that the trial Judge "should have found that the barrier guard could have been affixed to the bed of the trailer". This is an assertion by GIO that it would have preferred the trial Judge to have accepted Dr Chew's evidence about the "possibility" of the barrier guard being affixed to the bed of the trailer, as opposed to the evidence given by Mr Job about why this was not practical. Her Honour did not make an error when she made the findings in [42], [43] and [79], which I have set out above. In my opinion her finding was entirely justified by the evidence. This part of ground 2 must be dismissed.

158 Ground 2 also contends that Jobs Engineering should have advised Ridolfo of the need for the barrier guard. I have dealt with that contention in the main appeal. As a result, ground 2 of GIO's appeal must be dismissed.

159 I now turn to the grounds of GIO's appeal concerning indemnity under the policy. I will summarise them because the grounds are verbose and it would take up too much room in these reasons for decision to set them out verbatim. The numbering of the grounds of appeal became confused in the minute placed before the Court and the situation has been further complicated because the application for leave to add a proposed ground 6 has been disallowed. I have therefore renumbered the remaining live grounds in consecutive order:

1. Ground 1 merely asserts that the trial Judge erred in making a declaration that GIO was obliged to indemnify Jobs Engineering to the extent of the amount that Mr Fitzpatrick might recover.
2. Grounds 3, 4 and 5 all complain about the trial Judge's conclusion that the design exclusion clause did not apply.
3. Ground 6 contends that the trial Judge erred in finding that even if the installation of a barrier guard "was the responsibility" of Jobs Engineering and, "even if this failure was a proximate cause", that failure was not properly characterised as defective design.
4. Ground 7 contends that the trial Judge should have found that the failure to design the machine with a barrier guard was the proximate cause of Jobs Engineering's liability to Mr Fitzpatrick.
5. Ground 8 contends that the trial Judge should have found that if Jobs Engineering had a duty to install an emergency switch, then that amounted to a defective design.
6. Ground 9 contends that the failure to "design a barrier guard" was the proximate cause of Jobs Engineering's liability to Mr Fitzpatrick and that this fell within the exclusion clause regarding defective design.
7. Ground 10 contends that the trial Judge erred when she made a declaratory order that GIO was liable pursuant to the policy to pay the legal costs and expenses incurred by Jobs Engineering in defending the claim by Mr Fitzpatrick, and defending the claim for contribution by Ridolfo, and in prosecuting Jobs Engineering's contribution claim against Ridolfo, and complains also of the order that GIO pay such costs.
8. Grounds 11 and 12 are conclusions which assume success on earlier grounds.

All of these grounds, therefore, raise only two main contentions. First, that the design exclusion clause applied (grounds 3 to 9) and secondly, that the costs extension clause did not apply (ground 10).

160 The definition of products, the product liability clause, the costs extension clause and the design exclusion clause appear below.

"'Products' means any goods, product or property sold, supplied, or distributed by you (including their containers) in the course of the Business after they have ceased to be in your custody or under your control.

We will indemnify you in respect of all sums which you shall become legally liable to pay for compensation in respect of bodily injury or damage to property as a result of an occurrence and caused by the nature, condition or quality of Products sold or supplied by you within the Commonwealth of Australia.

In addition we will also pay legal costs, charges and expenses incurred as a result of your entitlement to indemnity under this Optional Benefit and incurred with our written consent.

...

We shall not be liable for:

(a) any defective design or error in formula or in specification of any of the Products processed or manufactured by you."

161 Before I turn to the proper construction of this clause, it is necessary to bear in mind that the trial Judge concluded, as I have concluded, that there is no liability in Jobs Engineering at all. If any liability did arise, it would only be because of liability arising out of Mr Fitzpatrick's sole allegation that Jobs Engineering failed to ensure (by providing advice and information to Ridolfo) that Ridolfo was "made aware of the safety features which should be installed", namely a safety barrier and a switch.

162 The design exclusion clause is not well drafted. Her Honour said:

"There is no reference in this clause to a claim in respect of loss or injury caused by any defective design. However, I find that as a matter of construction that must be implied in the clause. It is the only construction that makes sense in the context of the policy as a whole."

163 I agree. It is not necessary, in my opinion, to spend any more time working out precisely how the exclusion clause should be read, for reasons which appear below.

164 In Vosten v The Commonwealth [1989] 1 Qd R 693 at 708, Ryan J, with the other members of the court agreeing, said:

"The design of the product and the construction of the product itself are distinct matters. The design is an idea or conception; it is, as his Honour stated, quoting from the Oxford English Dictionary 'a plan or a scheme conceived in the mind of something to be done, the preliminary conception of an idea that is to be carried into effect by action'."

165 The design will often be reflected in plans and specifications: Bird Constructions v United States Fire Insurance Co (1985) 24 DLR (4th) 104. All of this was important in relation to the issues as they were at the trial. This is because, at trial, it was alleged that Jobs Engineering omitted to install an interlocking barrier over the splitter box on the machine it supplied, and it was also contended that it was Jobs Engineering which should have installed the fixed barrier and an emergency switch. In those circumstances, there was a live issue about whether the failure to install these items could be classified as design defects. However, these and all other allegations against Jobs Engineering were dismissed.

166 The trial Judge found (and it is not challenged) that Jobs Engineering was not the manufacturer of the cabin. As a result, the trial Judge found that the defects exclusion clause did not apply. Other reasons were given for the clause not applying, but it is not necessary to refer to them because I consider that her Honour was correct in the conclusion that the defects exclusion clause did not apply, because Jobs Engineering was not the manufacturer or designer of the part of the product containing the alleged defects.

167 When the appeal was filed by Mr Fitzpatrick, his grounds of appeal contended that the Judge erred in finding that it was impractical for Jobs Engineering to install the interlocking barrier on the splitter box and also contended, in the notice of appeal, that Jobs Engineering should have installed the emergency switch. However, after the amendment to the grounds of appeal, these grounds were abandoned, and all that Mr Fitzpatrick alleged against Jobs Engineering was a failure on Jobs Engineering's part to ensure that Ridolfo was made aware of safety features, by providing advice and information to Ridolfo about what Ridolfo should include in the cabin.

168 There was therefore no foundation for any contention that there was a defective design in a product "manufactured" by Jobs Engineering, and therefore no foundation for a contention that the design exclusion clause could apply.

169 Counsel for GIO attempted to cling to its argument that the design exclusion clause applied by submitting that, in order for Jobs Engineering to provide "advice and information" to Ridolfo, Jobs Engineering had to "consider" what advice it would give and that this consideration would require a "plan or scheme conceived in the mind" (to use words from Vosten v The Commonwealth (supra)) and that therefore the defects exclusion clause could still apply. That submission must be rejected because the defects exclusion clause only applies to defective designs in products manufactured by the insured. Jobs Engineering did not manufacture the cabin.

170 GIO's counsel made one other attempt to bring the defects exclusion clause into operation. She submitted that this Court should make its own assessment about the "proximate cause" of the liability of Jobs Engineering to Mr Fitzpatrick (assuming, contrary to my finding, that there was some such liability). The expression "proximate cause" in insurance cases is used when there may be contributing causes to an insured's loss and it is necessary to determine what is the dominant or real and effective cause of the loss.

171 I confess to having difficulty understanding what GIO's argument was, and why proximate cause has to be considered, so I will not attempt to paraphrase the argument. I will quote what counsel said. At t/s 178 counsel for GIO submitted:

"Now, in this case we have got the first respondent who is the insured so we only need to ask, what was the liability of the first respondent, if any? and then, what is the proximate cause of that liability? Now, originally there could have been a number of causes but at present we have them narrowed down to two proximate causes. One is not advising the second respondent to install a barrier and not advising the second respondent to install an emergency switch. I am saying that within that advice is also contained a cause of not designing the machine with a barrier guard and not designing the machine with an emergency switch.

Therefore, the proximate cause, the real cause, the dominant cause, the commonsense cause of the first respondent's liability is its lack of designing the safety features."

172 This seems to me to repeat the earlier argument in a different form and so it may be dismissed for the same reason, namely that if the alleged advice or information could be classified as "defective design" (and I do not think it can), the fact is that the cabin was not manufactured by Jobs Engineering.

173 It is probably unnecessary to say anything more, but I will mention two cases referred to by counsel for GIO, namely MDIS Ltd v Swinbank [1999] 2 All ER (Com) 722 and West Wake Price & Co v Ching [1957] 1 WLR 45. Counsel seemed to gain some comfort from the fact that in these cases the court made its own assessment of proximate cause without being bound by the plaintiff's form of claim and alleged cause of loss. However, these were cases in which there had been no trial and no determination of the issues. In MDIS Ltd (supra), the action had been settled, and in West Wake Price (supra), the issue was about the application of a QC clause while the claim was still pending. In both cases, therefore, the court had to determine the true nature of the plaintiff's claim. In this case, all issues have been fought through to a conclusion and a determination by a trial Judge, and if there is to be any alteration to them, it will only be in accordance with the grounds of appeal.

174 This part of GIO's appeal (grounds 3 to 9) must therefore be dismissed.

175 It is not in dispute that if Jobs Engineering was found liable to pay compensation to Mr Fitzpatrick (and the design exclusion clause did not apply), then GIO, being liable to indemnify Jobs Engineering, must, pursuant to the costs extension clause, pay the insured the legal costs Jobs Engineering has incurred in conducting a defence of the proceedings.

176 The issue between the parties only arises if Mr Fitzpatrick's appeal against Jobs Engineering is dismissed. In those circumstances, Jobs Engineering has no liability to pay any compensation and GIO will come under no obligation to indemnify Jobs Engineering under the insurance clause. The trial Judge found that, despite those circumstances, GIO was still obliged under the costs extension clause to pay Jobs Engineering's legal costs. GIO argues that the phrase "entitlement to indemnity" in the costs extension clause means that GIO must only pay costs if Jobs Engineering is liable to pay Mr Fitzpatrick and is entitled to indemnity under the insurance clause.

177 There is again a difficulty in the construction of the policy. It may first be observed that the language differs from that in the main insurance clause. In the insurance clause, an indemnity is provided in respect of sums that the insured becomes legally liable to pay. So, under the main insurance clause the liability of GIO to indemnify does not crystallise until there is a judgment or a contract of settlement obliging the insured to pay damages to someone. However, the costs extension clause does not say that legal liability to pay costs is dependent upon a legal liability to pay compensation. Instead, the costs extension clause states that GIO will "pay" legal costs (not "indemnify" the insured for those costs or reimburse them for the legal costs paid) incurred as a result of "your entitlement to indemnity". This obliges GIO to pay the legal costs as the costs fall due for payment. The clause does not oblige the insured to pay the costs and then seek indemnity.

178 If GIO must pay these costs as they fall due then, in my opinion, the phrase "entitlement to indemnity" means entitlement to indemnity with respect to claims made by the claimant against the insured. So, if GIO does not take over the conduct of the litigation (and it is not obliged to do so) then the insured is left to retain its own solicitors to act in the litigation. If the insured incurs costs and bills are sent by the solicitors to the insured, then the insured is entitled to require GIO to pay those bills as they fall due if the claims are of a kind which, if established, will entitle the insured to indemnity under the policy. GIO is not entitled to require the insured to pay the costs with GIO only then becoming liable to indemnify the insured.

179 I now turn to the facts of this case. The claims made by Mr Fitzpatrick against Jobs Engineering included a claim for the negligent omission to give advice about the machine's safe use. See the statement of claim par 27(1). If there had been success on that allegation, then Mr Fitzpatrick would have been entitled to judgment and GIO would have been obliged to indemnify Jobs Engineering. Jobs Engineering was therefore "entitled to indemnity" with respect to that claim. The fact that the claim, based on negligent advice, was later dismissed is beside the point. Thus "entitled to indemnity" means "entitled to indemnity with respect to claims made". The trial Judge reached the correct conclusion when she said (in Fitzpatrick v Robert Norman Job and Wendy Barbara Job t/as 'Jobs Engineering & Anor [2005] WADC 161 at [20]):

"I am satisfied on the balance of probabilities that the costs extension clause in this case does extend to costs and expenses incurred in a successful defence of a claim. The costs extension clause is separate in the sense that it is not dependent upon the indemnity clause being activated".

180 Her Honour reached this conclusion after considering the results in a number of other cases including Thornton Springer v NEM Insurance Co Ltd [2000] 2 All ER 489; Karenlee Nominees Pty Ltd v ACN 004 312 234 Ltd (1994) 8 ANZ Ins Cas 61-236 and Sherlex Pty Ltd v Thornton & Ors [2003] QCA 461. The clauses in all of those cases were different from the clause in this case, and therefore do not assist in the construction of this clause because, in each of those cases, the clauses expressly stated that the insurer would pay costs, charges and expenses incurred in the settlement or defence of claims.

181 This aspect of GIO's appeal (ground 10) must also be dismissed. As a result, GIO's entire appeal must be dismissed.

182 If both respondents had been found to be liable, then I would not distinguish between them. In my opinion they should contribute equally to the damages payable to Mr Fitzpatrick.

185 BUSS JA: The background facts, most of the material findings of the learned Judge and the principal issues in the appeals are set out in the reasons of Pullin JA.

186 It is convenient to consider the issues by reference to:

(a) Mr Fitzpatrick's appeal against Jobs Engineering;

(b) Mr Fitzpatrick's appeal against V & D Ridolfo;

(c) Mr Fitzpatrick's contributory negligence;

(d) apportionment as between Jobs Engineering and V & D Ridolfo; and

(e) GIO's appeal against Jobs Engineering.

Mr Fitzpatrick's application to amend at the hearing on 23 and 24 August 2006

187 At the hearing on 23 and 24 August 2006, Mr Fitzpatrick applied for leave to amend his grounds of appeal against Jobs Engineering and V & D Ridolfo. I am satisfied that none of the respondents would suffer any relevant prejudice as a result of the amendments, and I would therefore allow them.

Mr Fitzpatrick's appeal against Jobs Engineering: grounds of appeal

188 Mr Fitzpatrick alleges, in his appeal against Jobs Engineering, relevantly, that:

"1. The learned Trial Judge erred in law and fact in failing to find that [Jobs Engineering] owed potential users of the machine, such as and including [Mr Fitzpatrick], a duty to take reasonable care in accordance with the standards of a competent and experienced machine designer/engineer to:

(a) ...

(b) ensure (by providing advice and information) that the person completing the manufacture of the machine was made aware of the safety features which should be installed, and written instructions which needed to be provided, to enable the machine to be operated safely.

1. The learned Trial Judge erred in law and fact in failing to find that [Jobs Engineering] breached [its] duty of care ... by failing to provide adequate information and advice to the effect referred to in ground 1(b).

1. The learned Trial Judge erred in law in applying an incorrect test of causation, and in particular, in applying a retrospective test by reference exclusively to what [Mr Fitzpatrick] actually did, rather than assessing whether the respondents' wrongful conduct had generated the risk of injury, and whether or not the accident would have occurred if the respondents had not breached their duties.
2. The learned Trial Judge erred in law and fact in finding that the respondents' acts or omissions were not a cause of the accident, because the action of [Mr Fitzpatrick] in putting his leg in the splitter box was a deliberate and conscious act whereas the purpose of safety barriers was to protect against negligent as well as inadvertent acts on the part of an operator.
3. The learned Trial Judge erred in law in approaching the issue of causation on the basis that it was either the conduct of the respondents or the conduct of [Mr Fitzpatrick] which caused the accident without adequately considering whether there were concurrent causes in the circumstances of this case. The learned Trial Judge should have found that the respondents' breaches of duty caused or contributed to the accident, and then considered whether or not [Mr Fitzpatrick] was guilty of contributory negligence, and if so, her Honour should then have considered the appropriate reduction of damages recoverable on account of that contributory negligence.
4. The learned Trial Judge erred in law and fact in finding that even if a barrier had been installed, it is just as likely that [Mr Fitzpatrick] would either have climbed over the barrier, or removed the barrier, when that was mere speculation, and in any event, there would not have been sufficient time to climb over the barrier to prevent a misaligned log becoming jammed and [Mr Fitzpatrick] would have suffered certain and serious injuries if he actually stood in the bottom of the splitter box whilst it was operating.
5. The learned Trial Judge erred in law and fact in finding, without supporting evidence or reasons, that the absence of a guard was not a contributing factor to the accident, and in failing to find that an emergency switch should have been installed, and in failing to consider the effect of the Occupational Safety & Health Act (and regulations) when they were issues at trial."

Mr Fitzpatrick's appeal against Jobs Engineering: the statement of claim and the case which was litigated at the trial

189 Mr Fitzpatrick, in his substituted statement of claim dated 14 November 2002, alleged, relevantly, that Jobs Engineering owed him a duty of care "to ensure that the machine was ... safe to use and operate". No particulars of that plea were given or sought. The alleged duty of care should be understood as a plea that Jobs Engineering owed Mr Fitzpatrick a duty to exercise reasonable care, skill and diligence to produce a machine that was safe to use and operate. That duty, as pleaded, is expressed in general and non-specific terms. In my opinion, it encompasses the more specific duty alleged in ground 1(b) of Mr Fitzpatrick's appeal.

190 In par 28 of his substituted statement of claim, Mr Fitzpatrick asserted that Jobs Engineering had breached their duty of care to him and that their negligence caused the accident. Detailed particulars of negligence are then set out. Those particulars do not include the breach alleged in ground 3 of Mr Fitzpatrick's appeal, namely, that Jobs Engineering failed to provide adequate information and advice to V & D Ridolfo to ensure that it was aware of the safety features which should be installed, when constructing and affixing the cabin, to enable the machine to be operated safely. The substance of the alleged breach, as set out in ground 3, was, however, an issue which was litigated at the trial. This is apparent, first, from V & D Ridolfo's statement of claim in its contribution proceedings against Jobs Engineering and Jobs Engineering's defence to that claim, secondly, from the evidence of Mr Job, a principal of Jobs Engineering, and Mr Anthony Ridolfo, the managing director of V & D Ridolfo, and thirdly, from the learned Judge's finding, at [44], that Jobs Engineering was not under a duty of care to advise V & D Ridolfo that the cabin should be constructed to include a barrier guard.

191 In par 8 of its statement of claim in the contribution proceedings, V & D Ridolfo alleged, relevantly, that Jobs Engineering impliedly represented that if V & D Ridolfo caused to be built and installed on the machine a cabin similar to the cabins on two existing machines which had been constructed by Jobs Engineering, and shown by Mr Job to representatives of V & D Ridolfo before V & D Ridolfo agreed to purchase its machine, the cabin would provide a safe working environment for the operator. The cabins on the two existing machines did not have a barrier guard between the cabin and the splitter box. In par 14 of its statement of claim, V & D Ridolfo alleged, relevantly, that if (which it denied) Mr Fitzpatrick's injury was caused or contributed to as alleged in his pleading, then Jobs Engineering owed a duty of care to future operators of the machine "to ensure" that it was designed with a cabin that was adequate to protect the operator from the splitter box, and was safe to use and operate. In par 15 of its statement of claim, V & D Ridolfo alleged, relevantly, that the machine supplied by Jobs Engineering to V & D Ridolfo and subsequently sold by V & D Ridolfo to Mr Fitzpatrick was not safe to use and operate in that it was "possible to insert body parts into the splitter box", and, further, the cabin in question was "inadequately designed in that it did not prevent the operator from inserting body parts into the splitter box". Jobs Engineering, in its defence in the contribution proceedings, denied each and every allegation in pars 8, 14 and 15 of V & D Ridolfo's statement of claim.

(a) The installation of a barrier guard at the end of the trailer was "totally impractical", and a guard installed on the cabin was the only guard that was suitable for the machine in that such a guard would not interfere with the machine's operations. [examination-in-chief at AB 189 - 190]

(b) The installation of barrier guards was never mentioned in discussions between Mr Job and representatives of V & D Ridolfo. [examination-in-chief at AB 195]

(c) During discussions between Mr Job and representatives of V & D Ridolfo before Jobs Engineering supplied the machine to V & D Ridolfo, Mr Job did not suggest that the cabin which V & D Ridolfo was intending to construct should have:

(i) an enclosed side facing the splitter box; or

(ii) a solid mesh guard between the cabin and the splitter box.

[cross-examination by counsel for V & D Ridolfo at AB 224]

(d) During the period up to and including the supply of the machine to V & D Ridolfo, Jobs Engineering did not, on the occasions when it incorporated a cabin with the machine, include a barrier guard between the cabin and the splitter box. [cross-examination by counsel for V & D Ridolfo at AB 224]

(e) Before Jobs Engineering and V & D Ridolfo entered into the contract for the supply of the machine, Mr Job arranged for representatives of V & D Ridolfo to inspect two existing machines he had constructed. Those machines incorporated cabins. Neither cabin had a barrier guard between the cabin and the splitter box. One cabin had an opening between the operator's seat and the splitter box and the other cabin comprised a back wall and a roof with the side facing the splitter box being entirely open. [cross-examination by counsel for V & D Ridolfo at AB 220 - 222 and 224 - 225]

(f) Mr Job did not inform representatives of V & D Ridolfo that the cabin which V & D Ridolfo was proposing to construct should have any particular safety features. [cross-examination by counsel for V & D Ridolfo at AB 231]

(g) Mr Job did not inform representatives of V & D Ridolfo that the cabin which V & D Ridolfo was proposing to construct should be fully enclosed. [cross-examination by counsel for V & D Ridolfo at AB 232]

(h) Mr Job did not give any instructions to representatives of V & D Ridolfo in relation to how logs within the splitter box should be manoeuvred or how jams in the splitter box should be remedied. [cross-examination by counsel for V & D Ridolfo at AB 234 - 235]

(i) In late 1997 Mr Job travelled to Perth, at the request of a representative of V & D Ridolfo, and saw the cabin which had been constructed on the machine. Mr Job did not mention to representatives of V & D Ridolfo any concerns about the safety of the cabin. [cross-examination by counsel for V & D Ridolfo at AB 236]

(j) After Jobs Engineering supplied the machine to V & D Ridolfo, Mr Job commenced constructing fully enclosed cabins on new machines. This change in construction method commenced before the accident involving Mr Fitzpatrick. [cross-examination by counsel for V & D Ridolfo at AB 238]

(k) On some of the machines which Jobs Engineering built before they supplied the machine to V & D Ridolfo, Mr Job had installed a single strand of chain across the open cabin between the cabin and the splitter box, for the purpose of creating a form of barrier. [cross-examination by counsel for V & D Ridolfo at AB 239]

(l) If Mr Job had been aware of Australian Standard 4024.1, when he was manufacturing the machine for V & D Ridolfo, he would have realised that a barrier guard should have been installed between the operator and the splitter box, and there was "a very good chance" he would have installed such a barrier. [cross-examination by counsel for GIO at AB 246 - 247]

(m) Mr Job did not have any drawings, specifications or written instructions in relation to the installation of a barrier guard between the cabin and the splitter box. [cross-examination by counsel for GIO at AB 249]

(n) A barrier guard should have been installed by V & D Ridolfo when the cabin was built. [cross-examination by counsel for GIO at AB 252]

(o) Mr Job ceased installing the single strand of chain because he did not "deem it necessary". [cross-examination by counsel for Mr Fitzpatrick at AB 278]

(p) The construction of a fully-enclosed cabin prevented access from the cabin to the splitter box. [cross-examination by counsel for Mr Fitzpatrick at AB 278]

(a) After visiting Tasmania and before ordering the machine, Mr Ridolfo spoke to a representative of WorkSafe and was informed that the cabin of the machine would not require rollover protection if the machine was not used in a mining area or some other area where the operator might be at risk if the cabin was not appropriately reinforced. [examination-in-chief at AB 327]

(b) V & D Ridolfo decided to order the machine without a cabin. [examination-in-chief at AB 327]

(c) On the visit to Tasmania, representatives of V & D Ridolfo had taken photographs of the machines which Mr Job had shown them, and Mr Ridolfo showed the photographs to the men engaged to fabricate the cabin in Western Australia. [examination-in-chief at AB 331 - 333]

(d) After the machine had been in operation for some time in Western Australia, repairs were required to a mechanism in the splitter box, and V & D Ridolfo arranged for Mr Job to travel to Western Australia, at V & D Ridolfo's expense, to advise in connection with repairs. [examination-in-chief at AB 338]

(e) V & D Ridolfo decided to order the machine without a cabin in order to save transport costs from Tasmania to Western Australia. [cross-examination by counsel for Jobs Engineering at AB 350]

(f) Mr Job did not at any time request V & D Ridolfo to install a barrier guard between the operator and the splitter box when the cabin was being built. [cross-examination by counsel for GIO at AB 367]

(g) Mr Job did not at any time inform V & D Ridolfo that the cabin should be fully enclosed so that the operator would not have the opportunity of placing a limb into the splitter box. [cross-examination by counsel for GIO at AB 367]

(h) The following exchange occurred between counsel for GIO and Mr Ridolfo, at AB 370:

"Did Mr Job at any stage provide you with any drawings or written instructions as to what type of safety measure there should be built into the operator's cabin to prevent the operator from putting his limbs into the splitter box?---No. There was no sort of safety or working instructions or any sort of manuals provided with the machine.

If Mr Job had given you some drawings or instructions on how to build a barrier as part of the operator's cabin to prevent the operator from putting a limb into the splitter box, would you have done so?---If I had been given drawings I would say I would have, yes."

(i) Mr Ridolfo showed the photographs taken of the machines inspected in Tasmania to the men engaged to fabricate the cabin in Western Australia "to give them a guide and an indication of what sort of cabin we were going to base the design on". [cross-examination by counsel for GIO at AB 371]

(j) The machines photographed in Tasmania had cabins but did not have any barrier guard between the operator and the splitter box. [cross-examination by counsel for GIO at AB 372]

(k) When representatives of V & D Ridolfo visited Tasmania before it ordered the machine, Mr Job showed Mr Ridolfo a metal rod which Mr Job said he used to re-position blocks of wood which became jammed in the splitter box. [cross-examination by counsel for Mr Fitzpatrick at AB 380]

(l) When Jobs Engineering delivered the machine to V & D Ridolfo it was accompanied by a metal rod. [cross-examination by counsel for Mr Fitzpatrick at AB 380]

194 This Court has power to allow an amendment to a pleading if the case sought to be made on appeal by the party applying to amend is not materially different from the case which was litigated at the trial. See Bell v Lever Brothers Ltd [1931] UKHL 2; [1932] AC 161 per Lord Atkin at 216; Teoh v Minister for Immigration and Ethnic Affairs [1994] FCA 1017; (1994) 49 FCR 409 per Lee J at 416 (with whom Black CJ agreed); Pringle v Everingham [2006] NSWCA 195; (2006) 46 MVR 58 per Hunt AJA at 68 - 69 [48] - [49] (with whom Mason P and Santow JA agreed).

195 On 8 March 2007, Mr Fitzpatrick, in response to an inquiry from this Court, made application for leave to amend his substituted statement of claim to include an allegation to the effect that Jobs Engineering breached its duty of care in the terms alleged in ground 3 of Mr Fitzpatrick's appeal. In my opinion, the proposed amendment is not materially different from the case which was litigated at the trial. Although the critical issues relating to breach were pleaded in the contribution proceedings between V & D Ridolfo and Jobs Engineering, and not in the main action between Mr Fitzpatrick and Jobs Engineering, the evidence of Mr Job and Mr Ridolfo, which I have set out at [192] - [193] above, was adduced, without objection, in the proceedings as a whole. I would allow the amendment.

Mr Fitzpatrick's appeal against Jobs Engineering: duty of care and standard of care

196 A person who designs, manufactures and supplies a machine intended for commercial use owes a duty to potential users of the machine to exercise reasonable care, skill and diligence in the design and manufacturing process to produce a machine which is safe to operate. See Donoghue v Stevenson [1932] AC 562 at 580, 599; Jaensch v Coffey (1984) 155 CLR 549 at 579; Bull v Samson & Rover Mowers (Aust) Pty Ltd [1984] 2 Qd R 489 at 498 - 499; Suosaari v Steinhardt [1989] 2 Qd R 477 at 486 - 487; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at 328 [29].

197 In Wyong Shire Council v Shirt (1980) 146 CLR 40, Mason CJ said, at 47 - 48, in the context of negligence generally:

"In deciding whether there has been 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.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

198 A risk of injury will be reasonably foreseeable if it is not far-fetched or fanciful. The risk may be reasonably foreseeable even though it is unlikely to occur or is remote. See Shirt at 48; Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty; The Wagon Mound (No 2) [1966] UKPC 1; [1967] 1 AC 617 at 641 - 643; Langham v Connells Point Rovers Soccer Club Inc [2005] NSWCA 461 at [34]. The test of reasonable foreseeability, as stated in Shirt, must, of course, be applied without hindsight. The test is, however, undemanding. See Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at 64 [54]; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 480 - 481 [213].

199 It is unnecessary that the defendant should have foreseen the precise risk of injury or how it occurred. As McHugh J observed in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at 578 [87]:

"It is sufficient that the risk is one of a class of risk that in a general way the defendant should have foreseen (Thompson v Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 at 630, per Dixon CJ and Williams J; Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202 at 222, per Dixon CJ, McTiernan, Kitto and Taylor JJ)."

200 The general standard of care (that is, the measure of the discharge of the duty of care) applicable to a person who designs, manufactures and supplies a machine intended for commercial use is what, if anything, a reasonably competent engineer in the position of that person would have done, in the circumstances, by way of response to a foreseeable risk that potential users of the machine may suffer injury in the course of operating it.

201 In Suosaari, Cooper J (with whom Connolly and Ryan JJ agreed) articulated, at 489 - 490, in more specific terms, the standard applicable to a designer and manufacturer of machinery:

"A manufacturer is under a duty not to put a product into circulation without bringing to it, in the case of machinery, the mind of a reasonably competent engineer to ascertain whether the design of the product is safe. If a competent engineer would have discovered the defect as one which unreasonably exposed the user to risk then the duty of the manufacturer is twofold: firstly, to actually see the risk, secondly, to take all reasonable steps to eliminate or minimise it, or if it cannot be eliminated or minimised, to clearly warn the user of its existence. A manufacturer who fails to take both of these steps breaches the duty of care owed to the user of the product (Winward [v TVR Engineering [1986] BTLC 366] at 7; Griffiths [v Arch Engineering Co Ltd [1968] 3 All ER 217] at 220 - 221.)"

202 A designer and manufacturer of machinery is not, however, an insurer, and is not under an absolute duty to design and manufacture a product that is accident-proof and free from any defect. See Bull at 499; Suosaari at 487. Also, as Cooper J noted in Suosaari, at 488:

"A manufacturer is not obliged to take precautions against a risk which may arise when the use to which the product is put is so unusual or improper as to make such a use wholly unforeseeable, it falling outside the range of any reasonable man's contemplation ..."

203 The determination of what, if anything, a reasonably competent engineer in the position of a person who designs, manufactures and supplies a machine intended for commercial use would have done to avoid a foreseeable risk of harm involves an assessment of what would have been reasonable and practicable for that person to do. This inquiry is not to be undertaken in hindsight. Compare Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 at 361 [93]; Vairy at 461 - 463 [126] - [129]; Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 at 501 [50]. Reasonableness may require no response to a foreseeable risk. See Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 at 246 - 247 [36]; Mulligan at 491 [3].

204 The obviousness of a risk is a relevant consideration in determining what, if anything, reasonableness requires of a person who designs, manufactures and supplies a machine intended for commercial use. This process of evaluation must be undertaken, however, on the basis that the designer and manufacturer had to take into account the possibility that potential users of the machine, to whom the duty of care is owed, might fail to take proper care for their own safety. Although potential users of the machine ordinarily will be expected to exercise sufficient care, by perceiving and avoiding obvious hazards, some allowance must be made by the designer and manufacturer, if in the circumstances it is reasonable and practical, for carelessness or inadvertence. If the machine in question is inherently extremely dangerous or if the magnitude of the injury likely to be suffered by a potential user who is careless or inadvertent is serious, reasonableness may require the designer and manufacturer to exercise particular skill, care and diligence in its design and manufacture. See Adelaide Chemical and Fertiliser Co Ltd v Carlyle [1940] HCA 44; (1940) 64 CLR 514 at 522 - 523; Todman v Victa Ltd [1982] VicRp 85; [1982] VR 849 at 852, 856; Bull at 499; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 30; Suosaari at 487 - 488.

205 The significance to be accorded to the obviousness of a risk depends on all the circumstances of the particular case. As Ipp JA pointed out in Consolidated Broken Hill Ltd Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 at 68,017 [53], in the context of a claim against an occupier:

"Obviousness of risk is ... merely a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is relevant to whether there has been a breach of duty of care. ... The weight to be attached to the obviousness of the risk depends on the totality of all the circumstances. In some circumstances it may be of such significance and importance to be effectively conclusive."

206 If the obviousness of a risk, and the reasonableness of an expectation that potential users of a machine will take care for their own safety, were always conclusive against the imposition of liability on the designer and manufacturer, there would be little room for the doctrine of contributory negligence. Compare Thompson at 247 [37].

207 In the present case, an injury of the kind suffered by Mr Fitzpatrick, and the general manner in which it might occur, were reasonably foreseeable. I am of that opinion for these reasons:

(a) the splitter box was designed, manufactured and supplied as an integral feature of a machine intended for commercial use;

(b) the machine involved an operator undertaking routine and repetitive work, on shifts of several hours, for the purpose of achieving the efficient production of firewood;

(c) the splitter box was open and very dangerous in that it included rams which were designed to push log rings against sharp knives;

(d) the splitter box was adjacent to the cabin and within reach of an operator's foot;

(e) the splitter box was deliberately positioned so that an operator would have ready access to it;

(f) an operator required access to the splitter box, in the ordinary course of operating the machine, for the purpose of realigning log rings which had become misaligned;

(g) the efficient operation of the machine required that log rings which had become misaligned be realigned promptly; and

(h) in those circumstances, it was reasonably foreseeable that an operator's foot and leg may become trapped or injured in the open, unguarded splitter box as a result of the operator having:

(i) inadvertently inserted his or her foot into the box; or

(ii) deliberately inserted his or her foot into the box in order to realign a misaligned log ring.

208 It is instructive, first, to consider the duty and standard of care which Jobs Engineering would have owed to potential users of the machine (including Mr Fitzpatrick) if it had supplied the machine to V & D Ridolfo with a cabin installed, and then to consider the applicable duty and standard of care where, as in the present case, the machine was supplied without a cabin but in the knowledge that the purchaser, V & D Ridolfo, would install a cabin.

209 In my opinion, if Jobs Engineering had supplied the machine to V & D Ridolfo with a cabin installed, Jobs Engineering would have owed a duty to potential users of the machine (including Mr Fitzpatrick) to exercise reasonable care, skill and diligence in the design of the machine (including the cabin) to produce a machine which was safe to operate. The critical issue, in those circumstances, would be what, if anything, a reasonably competent engineer in the position of Jobs Engineering would have done by way of response to the foreseeable risk of injury, to potential users of the machine, which I have described.

210 At all material times, Jobs Engineering carried on a business which included the design, manufacture and supply of machines of this kind (with or without cabins) for commercial use. They were profit-earning chattels. It is apparent, from the evidence, that they had an operating life of at least several years, and it was reasonably foreseeable that they may be sold from time to time and, in any event, be used by operators of varying abilities, capacity and attention, including those who were momentarily or habitually inattentive or careless.

211 I accept that the danger posed by the splitter box was manifest, and that Mr Fitzpatrick's practice of using his foot to realign log rings which had become misaligned was remarkably foolish. However, the assessment of what would have been reasonable and practical for Jobs Engineering to have done must be undertaken on the basis that a person who designs, manufactures and supplies a machine intended for commercial use must take into account the possibility that one or more potential users of the machine might fail to take proper care for his or her own safety (including not only by inadvertent acts or omissions, but also by deliberate conduct).

212 I consider that the obviousness of the danger posed by the splitter box would not have justified Jobs Engineering supplying the machine without installing a fixed barrier guard between the cabin and the splitter box. Several facts and matters, in combination, would have induced a reasonably competent engineer, in the position of Jobs Engineering, to have installed a fixed barrier guard, even though the danger was clearly perceptible and the controls enabled the operator to place the splitter box mechanism in neutral and lock it, when appropriate. First, there are the facts and matters to which I have referred at [207] above, in the context of explaining why an injury of the kind suffered by Mr Fitzpatrick, and the general manner in which it might occur, were reasonably foreseeable. Secondly, although the degree of probability of the occurrence of an injury of the kind suffered by Mr Fitzpatrick, and the degree of probability of the general manner of its occurrence, were low, the magnitude of the risk was significant, and a serious injury was likely to be suffered if the risk eventuated. Thirdly, the installation of a fixed barrier guard would not have been expensive, difficult or inconvenient. At the material time the purchase price of the machine was about $60,000 and the cost of designing, fabricating and fitting the cabin was about $2000. After the accident, Mr Fitzpatrick installed a barrier guard on the machine in question, apparently without difficulty. The cost would have been modest. Mr Job said, in cross-examination (at AB 246 - 247) that if he had been aware of Australian Standard 4024.1, when he was manufacturing the machine for V & D Ridolfo, he would have realised that a barrier guard should have been installed and there was "a very good chance" he would have installed such a barrier. Later, in cross-examination, Mr Job said (at AB 252) that a barrier guard should have been installed by V & D Ridolfo when the cabin was built. Fourthly, the installation of a fixed barrier guard would have been practical in the sense that its existence would not have materially affected the efficient operation of the machine. An operator would have been able to re-position, with a metal rod, log rings which became jammed in the splitter box, without leaving the cabin. If it became necessary to alight from the cabin to attend to the splitter box mechanism, the operator would have been able to place the operating lever in neutral (and lock it in position), leave the cabin from the side opposite the splitter box and walk behind the machine to the box.

213 In my opinion, if Jobs Engineering had supplied the machine to V & D Ridolfo with a cabin installed, the discharge of Jobs Engineering's duty of care to potential operators of the machine (including Mr Fitzpatrick) would have required it to install a fixed barrier guard on the cabin between the operator and the splitter box.

214 I turn now to consider whether Jobs Engineering owed a duty to potential users of the machine (including Mr Fitzpatrick), as alleged in ground 1(b) of Mr Fitzpatrick's appeal, and, if so, whether Jobs Engineering breached that duty, as alleged in ground 3 of his appeal.

215 V & D Ridolfo engaged a firm of metal fabricators, G & G Welding, to construct the cabin for the machine. Construction occurred after V & D Ridolfo and G & G Welding had agreed on the design and method of construction. The learned Judge found, at [43], that the cabin was designed and constructed "quite independently" of Jobs Engineering. Her Honour said, relevantly:

"Although [V & D Ridolfo] had the benefit of having seen similar cabins and had taken photographs that it provided to Mr Giancola [of G & G Welding] I am satisfied that in the design and construction of the cabin [V & D Ridolfo] was acting quite independently. What discussion did take place between Mr Job and Mr Ridolfo about the cabin was cursory and there was no discussion about dimensions or style. Mr Job recalls having overheard comments about using perspex which he said he did not advise. There were no specifications or templates or details about the configuration of the cabins on the machines in Tasmania. The photographs would be unlikely to do anything other than give a 'rough guide' as to how the cabins appeared on the machines in Tasmania. I am satisfied on the basis of the evidence of Mr Ridolfo and Mr Giancola that they brought independent views to bear on the design and requirements for the cabin to be constructed. This is confirmed by the distinct design employed in the cabin. The photographs of the cabins in Tasmania show a square and rather more rudimentary shape than the cabin constructed on this machine. More windows were utilised to give the operator a wider view. A perspex was used in the windows rather than glass and steel mesh was added around the windows to offer further protection to the operator from the operation of the chainsaw. The metal guard on the floor of the cabin was raised to a height of approximately 200 [sic] millimetres. A metal bar was designed to go across the opening to the splitter box with metal brackets built into the side to hold the metal bar. Mr Ridolfo contacted [WorkSafe] in relation to a need for rollover protection on the roof of the cabin if it was going to be used on bush sites. It is also significant that these machines are manufactured and produced by [Jobs Engineering] not for retail sale to the general public but for firewood operators and people working in that industry and the machines are custom made to the order of individual purchases [sic]."

216 The learned Judge's findings, at [44], were these:

"[Jobs Engineering] did not have a duty of care to ensure that the cabin that was built by [V & D Ridolfo] was constructed to include a barrier guard if one was required. I find [Jobs Engineering] were also not under a duty of care to advise [V & D Ridolfo] that the cabin should be constructed to include such a barrier guard if it was required. I consider that the duty of [Jobs Engineering] in relation to the safe operation of the machine relevant to the issues that arise in this trial was discharged by the inclusion of the safety device in the controls and the instructions that the operator was to disengage the splitter box mechanism and lock it in place when wood rings are adjusted. [Jobs Engineering] were entitled to take into account that in giving those instructions it was instructing representatives of [V & D Ridolfo] who were experienced operators in the firewood industry and who had the appropriate resources to arrange for proper design and construction of an appropriate cabin. Mr Job was entitled to have regard to the fact that [V & D Ridolfo] would have been aware of the dangers of the splitter box and the need to provide any safety devices either in the form of a barrier if that was required or by putting in place a safe system of work including appropriate warnings and instructions to any operators of the machine."

217 In my opinion, Jobs Engineering did owe a duty to potential users of the machine (including Mr Fitzpatrick) to exercise reasonable care, skill and diligence to advise and inform V & D Ridolfo of the safety features which should be installed on the cabin. Also, I consider that Jobs Engineering breached that duty by failing to advise V & D Ridolfo that a fixed barrier guard should be installed between the cabin and the splitter box. The circumstances which gave rise to that duty of care, and which required the duty to be discharged in the manner I have mentioned, were these:

(a) The facts and matters I have referred to at [207] above in the context of deciding that an injury of the kind suffered by Mr Fitzpatrick, and the general manner in which it might occur, were reasonably foreseeable.

(b) The facts and matters I have referred to at [212] above in the context of deciding that if Jobs Engineering had supplied the machine to V & D Ridolfo with a cabin installed, Jobs Engineering would have breached its duty of care to potential users of the machine (including Mr Fitzpatrick) if it had failed to install a fixed barrier guard between the cabin and the splitter box.

(c) V & D Ridolfo (unlike Jobs Engineering) did not carry on a business which included the design, manufacture or supply of machines of the kind in question (with or without cabins) for commercial use or at all.

(d) Before Jobs Engineering and V & D Ridolfo entered into the contract for the supply of the machine, Mr Job arranged for representatives of V & D Ridolfo to inspect two existing machines he had constructed. Those machines incorporated cabins, but neither cabin had a barrier guard between the cabin and the splitter box. Mr Job knew that V & D Ridolfo intended to construct a cabin itself and that its representatives had photographed the machines shown to them. Although, as the learned Judge found, at [43], the cabin was designed and constructed "independently of" Jobs Engineering, it was reasonably foreseeable that V & D Ridolfo would construct the cabin without a fixed (or any) barrier guard.

218 Mr Fitzpatrick has made out grounds 1 and 3 of his appeal, to the extent that those grounds relate to Jobs Engineering's failure to advise V & D Ridolfo to install a fixed barrier guard.

Mr Fitzpatrick's appeal against Jobs Engineering: grounds 1 and 3 and the issue of causation generally

219 A defendant will be liable in negligence only if the damage which the plaintiff has suffered was caused by the defendant's negligent act or omission. In Chappel v Hart (1998) 195 CLR 232, McHugh J noted, at 246 [32], that if the evidence suggests that a defendant's negligent act or omission would have made no difference to the plaintiff's course of action, the defendant will not have caused the damage which the plaintiff has suffered. The issue of causation requires a plaintiff to prove what would probably have eventuated had the defendant's negligence not occurred. This is necessarily a hypothetical question and involves an evaluation of circumstances which did not in fact happen. The test is a subjective test. See Chappel per McHugh J at 246 [32], per Kirby J at 272 [93]; Rosenberg v Percival (2001) 205 CLR 434 per McHugh J at 443 [24].

220 It is not necessary that a defendant's negligent act or omission be the sole cause of the plaintiff's damage. Causation will be established if the relevant act or omission materially contributed to the damage. See March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 per Mason CJ at 514; Chappel per McHugh J at 244 [27].

221 A court may infer causation by reference to the objective facts and probabilities. Direct evidence is not essential. See Rosenberg per McHugh J at 449 [44].

222 In Bennett v Minister of Community Welfare (1992) 176 CLR 408, Gaudron J considered the proper approach to causation in cases involving an alleged negligent omission as distinct from an alleged negligent act. Her Honour said, at 420 - 421:

"Leaving aside cases involving some positive act and those in which an omission can be treated as a positive act, a case based on omission or a failure to act will, in certain respects, fall for analysis in a way that differs from that appropriate for a case based on a positive act. Thus, in the case of a positive act, questions of causation are answered by reference to what, in fact, happened. In the case of an omission, they are answered by reference to what would or would not have happened had the act occurred (See, eg, Duyvelshaff v Cathcart & Ritchie Ltd; Quigley v The Commonwealth (1981), 55 ALJR 579; 35 ALR 537. See also Hart and Honoré, Causation in the Law, 2nd ed (1985), pp 59-61 where the authors identify the hypothetical nature of an inquiry as to the causal significance of providing or failing to provide a person with, or depriving a person of, an opportunity). In that exercise, the larger philosophical questions are brushed aside and the issue is approached on the basis that 'when there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm' (Sutherland Shire Council v Heyman [1985] HCA 41; (1985), 157 CLR 424, at p 467, per Mason J. See also Hart and Honoré, op cit, p 38).

In practice, it is not always necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a 'breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty' (Betts v Whittingslowe [1945] HCA 31; (1945), 71 CLR 637, at p 649, per Dixon J).

And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, (see, eg, Duyvelshaff v Cathcart & Ritchie Ltd and Quigley v The Commonwealth, where there was an onus on a plaintiff employee to establish what he would have done if different working conditions had been provided), generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect (McGhee v National Coal Board, [1972] UKHL 7; [1973] 1 WLR 1, at pp 6-7; [1972] UKHL 7; [1972] 3 All ER 1008, at pp 1012-1013, per Lord Wilberforce, where it was said that in the circumstances of that case the defendant bore an onus to that effect. But cf Wilsher v Essex AHA, [1987] UKHL 11; [1988] AC 1074, at pp 1087, 1090, per Lord Bridge of Harwich, where the issue of causation in that case and the remarks of Lord Wilberforce in McGhee were analyzed in terms consistent with an inference arising from the evidence in the plaintiff's case in chief with a resultant evidentiary onus on the defendant. Also note the debate in Canada on a possible shift in the onus of proof, seemingly resolved in the manner indicated by Lord Bridge in Wilsher by the Canadian Supreme Court in Snell v Farrell, [1990] 2 SCR, at pp 329-330; (1990) 72 DLR (4th) 289, at p 301), or that the injury would have occurred even if the duty had been performed (see Barnett v Chelsea and Kensington Hospital Management Committee, [1969] 1 QB 428 and British Road Services Ltd v AV Crutchley & Co Ltd, [1967] 2 All ER 785), it will be taken that the breach of the common law duty caused or materially contributed to the injury. However, the question whether some supervening event broke a chain of causation which began with or which relates back to an omission or a failure to perform a positive duty, is one that can only be answered by having regard to what would or would not have happened if the duty had been performed. It is only by undertaking that exercise that it is possible to say whether the breach was 'still operating' (see SS Singleton Abbey v SS Paludina, , at p 27, per Lord Sumner), or, continued to be causally significant when the harm was suffered."

223 In Chappel, McHugh J considered the interaction of the legal onus of proof and an evidentiary onus, in the context of causation, where there has been a negligent omission to warn of a risk. His Honour said, at 247 - 248 [34]:

" ... once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists. Examples of such evidence are: evidence which indicates that the plaintiff would not have acted on the warning because of lack of choice or personal inclination; evidence that no alternative course of action would have eliminated or reduced the risk of injury. Once the defendant points to such evidence, the onus lies on the plaintiff to prove that in all the circumstances a causal connection existed between the failure to warn and the injury suffered by the plaintiff."

Similarly, Gaudron J commented, at 238 - 239 [8]:

"The duty was called into existence because of the foreseeability of that very risk (See Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 422, per Gaudron J). The duty was not performed and the risk eventuated. Subject to a further question in the case of a duty to provide information, that is often the beginning and the end of the inquiry whether breach of duty materially caused or contributed to the harm suffered. As Dixon J pointed out in Betts v Whittingslowe ([1945] HCA 31; (1945) 71 CLR 637 at 649), albeit in relation to a statutory duty, 'breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach'."

Also see the observations of Gummow J at 257 [68] and Kirby J at 273 - 274 [93].

224 Mason P, in a series of judgments, has reviewed the decisions of the High Court in Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637, Bennett, Chappel and Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269. His Honour has demonstrated that Australian law (including, in particular, the passage from the judgment of Gaudron J in Bennett which I have cited at [222] above) has not, in certain circumstances, reversed the legal onus of proving causation in negligence. See, in particular, Mason P's judgments in TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380; Forbes v Selleys Pty Ltd [2004] NSWCA 149; Wilkins v Council of the City of Broken Hill [2005] NSWCA 468; Coca Cola Amatil (NSW) Pty Ltd v Pareezer (2006) A Tort Rep 81-834. In TC, his Honour said, at [96]:

"Betts and the cases which follow it suggest an approach to reasoning that enables a robust trier of fact to proceed from breach and specific harm to causation. The decision-maker may infer causation if the breach was such that in the ordinary course of events (as perceived by the decision-maker) that type of harm is a consequence of the breach. Kirby J expressed the same notion in Chappel and Naxakis (passages quoted at para 66 and para 69 above) when he cited Betts as a case where breach was closely followed by damage. In such cases, unless the defendant can point to some particular reason why the instant case is outside the norm, causation may (but not must) be inferred. Simply because a risk is 'not far-fetched or fanciful' (cf Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 48) does not mean that the trier of fact is required to infer that it came home or that the defendant's negligent conduct caused it to happen or materially contributed to its happening."

Also see Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 per Spigelman J at 278 - 279 [105] - [109].

225 The judgment of McHugh J in Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 79 ALJR 1104 is consistent with the analysis of Mason P in TC. McHugh J said, at 1109 [26]:

"This was not a case where the only evidence concerning causation was that the defendant had breached his duty of care and that the injury that occurred was within the scope of the risk of injury arising from the breach of duty (cf Chappel v Hart (1998) 195 CLR 232 at 244 [27]; Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 at 279 [32], 312 [128]). In such cases, it is always open to the tribunal of fact to find a causal connection between the breach and the injury even though the exact cause of the injury or conduct of the plaintiff is unknown (cf Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 at 24, 27)."

A similar point was also made by Callinan J, who said, at 1119 [80]:

"This was not a case in which cause could be inferred from the result, that is the collision. In the dictum of Gaudron J in Bennett ((1992) [1992] HCA 27; 176 CLR 408 at 420) ... there is reference to a statement by Dixon J in Betts v Whittingslowe ((1945) [1945] HCA 31; 71 CLR 637 at 649), a case of breach of statutory duty, to the effect that the breach coupled with the fact of an accident of the kind that might thereby be caused, is enough to justify an inference that in fact the accident occurred owing to the breach. But contained within that statement is the important qualification of an 'absence of any sufficient reason to the contrary'."

226 As Keane JA noted in Gold Ribbon (Accountants) Pty Ltd (in liq) v Sheers [2006] QCA 335, at [277] - [278], the approach of McHugh J in Chappel in relation to inferring from:

(a) the creation or increase in the risk of an event as a result of a breach of duty; and

(b) the actual occurrence of the event in question,

that the breach caused or materially contributed to the event, involves the logical inference of a causal nexus, and not a legal presumption which obviates the necessity to prove a causal nexus. Keane JA then continued, at [278]:

"As McHugh J himself said in Commissioner of Main Roads v Jones ((2005) [2005] HCA 27; 79 ALJR 1104 at 1109 [26]), the approach to causation which he explained in Chappel v Hart is appropriate to cases 'where the only evidence concerning causation was that the defendant had breached his duty of care and that the injury that occurred was within the scope of the risk of injury arising from the breach of duty'. The inference of causation is a deduction which may logically be made in a case where the risk created or increased by the defendant's breach of duty may operate, either alone or with other risks attending particular action or enterprise, to produce the loss. But it is not a logical deduction where the evidence, either shows that the removal of the risk created by the defendant's breach of duty would not have prevented the occurrence of the loss by reason of the operation of the other attendant risks, or gives reason to regard the possibility of such a result as equally probable."

227 In summary, the tribunal of fact is entitled, but not obliged, to find that causation has been established if:

(a) the defendant's breach of duty has created or increased the risk of an event which may result in the plaintiff (or a class of persons including the plaintiff) suffering reasonably foreseeable loss or damage;

(b) the event in question occurs; and

(c) the defendant has not satisfied the evidentiary onus of pointing to other evidence which suggests that no causal connection exists between the breach of duty and the occurrence of the event.

Mr Fitzpatrick's appeal against Jobs Engineering: grounds 1 and 3 and causation in relation to V & D Ridolfo

228 I turn now to consider whether V & D Ridolfo would have been likely to have installed a fixed barrier guard between the cabin and the splitter box if Jobs Engineering had given advice to that effect. The learned Judge did not make a finding on that issue.

229 The issue was, however, litigated at the trial. Counsel for GIO cross-examined Mr Ridolfo on the point (at AB 370):

"If Mr Job had given you some drawings or instructions on how to build a barrier as part of the operator's cabin to prevent the operator from putting a limb into the splitter box, would you have done so?---If I had been given drawings I would say I would have, yes."

That evidence (which was not challenged in cross-examination by any other counsel) was supported by objective facts (as to which, see the comments of McHugh J in Chappel at 246 [32], especially footnote (64)). In particular:

(a) V & D Ridolfo relied upon Jobs Engineering in relation to the repair of the machine.When the machine required repairs, V & D Ridolfo arranged for Mr Job to travel to Western Australia, at its expense, to advise in connection with repairs.

(b) It is evident that V & D Ridolfo took seriously the issue of safety. Before the machine was ordered, Mr Ridolfo spoke to a representative of WorkSafe and sought advice as to whether the cabin of the machine should be constructed with rollover protection. Michael Harvey, an employee of V & D Ridolfo, explained and demonstrated to Mr Fitzpatrick the safe use of the machine and how to realign, with a metal bar, log rings which had become misaligned in the splitter box. Mr Ridolfo also explained to Mr Fitzpatrick the safe use of the machine. Mr Ridolfo included a 240 mm high plate on the floor of the cabin across the opening to the splitter box to prevent an operator slipping from the floor of the cabin into the box, and arranged for mesh to be placed on the cabin to protect the operator from woodchips generated by the chainsaw. Further, when the cabin was being constructed, a removeable bar was fitted across the opening between the cabin and the splitter box.

The learned Judge did not reject any of Mr Ridolfo's evidence.

230 In my opinion, it should be found, on the basis of Mr Ridolfo's evidence and the objective facts I have mentioned, that V & D Ridolfo would have been likely to have installed a fixed barrier guard on the cabin if Jobs Engineering had given advice to that effect.

Mr Fitzpatrick's appeal against Jobs Engineering: grounds 1 and 3 and causation in relation to Mr Fitzpatrick

231 The learned Judge found that if a fixed barrier guard had been installed before the machine was delivered to Mr Fitzpatrick, the barrier may have prevented the accident, but it was "just as likely" that Mr Fitzpatrick would have either climbed over the barrier or removed the barrier, and then "accessed the splitter box" while the mechanism was "in automatic mode". Her Honour said, at [54]:

"If [Mr Fitzpatrick] had been injured as a result of his chair slipping or for some reason fell from the open side of the cabin it may be that [V & D Ridolfo's] failure to provide such a barrier would constitute a breach of duty. However, this is not how the accident occurred in this case. Nor was [Mr Fitzpatrick's] movements [sic] an inadvertent or reflexive kick of the foot. The accident was a consequence of [Mr Fitzpatrick's] conscious and deliberate placing of his leg into the splitter box while it was operating to adjust a log ring that had been loaded into the splitter box, or alternatively to rearrange a section of ring after it had already been cut by the splitter box knives. This was contrary to the instructions to turn off the splitter box mechanism and engage the locking device and to use a metal hook to adjust the wood. It was an action undertaken in disregard for the obvious risk that he may be injured by the movements in the splitter box or have his foot jammed and dragged by the movement into the splitter box knives. While it may be the case that if such a barrier had in fact been in position at the time of the accident [Mr Fitzpatrick] may have decided to stop the operation of the splitter box by placing his hand under the console, or alternatively by switching off the diesel motor. However, it is just as likely that [Mr Fitzpatrick] would have either climbed over the barrier or removed the barrier leaving the mechanism in automatic mode and then accessed the splitter box. Clearly, [Mr Fitzpatrick] has the onus of establishing that the absence of such a barrier contributed to his accident. He has not done so."

232 The removeable bar which V & D Ridolfo fitted across the opening between the cabin and the splitter box was not supplied to Mr Fitzpatrick.

233 Mr Fitzpatrick admitted in evidence (at AB 10) that when the machine was delivered it was accompanied by a metal bar with a hook at one end. He described it as follows:

"It was a metre-long bar with a handle on it, and a hook on the end of it, and that was to move the wood around [in the splitter box]."

He said that the metal bar was "lost". When asked, in cross-examination (at AB 35), when he lost it, he replied:

"God knows. It was underneath the machine and the sawdust."

It appears that the bar was found after the accident in that location.

234 Mr Fitzpatrick used his foot regularly to realign log rings which had become misaligned, without placing the splitter box mechanism in neutral. He said (at AB 10) that he did not use the metal bar on the day of the accident:

"Because I thought it was just a very quick solution just to give it a very quick tap with my foot and keep everything working. Keep the whole machine in motion. I was saying, it was so easy, because I never thought in a million years something like this would happen."

235 Before the accident, Mr Fitzpatrick operated the machine every day for about six to 12 hours a day (AB 24 - 25). He admitted, in cross-examination (at AB 30), that before the day of the accident he had used his foot to kick misaligned log rings in the splitter box. He said that if he had used the metal bar, rather than his foot, for the purpose of adjusting pieces of wood in the splitter box, it would have been necessary to have stopped the machine (AB 68). It was "very tempting" to use his foot (AB 71). However, if it was necessary to "get into the splitter box to clear a jam in the ... box" he would "shut the machine down completely because [he] was getting out of the machine and into the splitter box" (AB 73).

236 The learned Judge was not satisfied that the accident occurred in the manner described by Mr Fitzpatrick. Her Honour did not accept that he gave a misaligned log ring a "quick flick" with his left foot while seated at the control panel with his hands still on the controls. Her Honour said, at [39]:

"The state of the evidence does not enable me nor is it necessary to determine exactly what position he was in when his foot was caught or exactly how it was caught in the splitter box. It may be that his foot was caught when he was adjusting a log ring that had become misaligned in the splitter box rather than a partially cut ring that fell at an awkward angle. But even if that was the case and it was a partial ring I am satisfied that he did not give it a casual flick in the way that he described. I am satisfied that he moved out of his normal operating position and deliberately and consciously placed his foot well down into the splitter box although it may be that he did not actually stand in it. ..."

Later, at [39], her Honour said that the significance of her finding, in relation to the circumstances of the accident, was as follows:

" ... [Mr Fitzpatrick's] action was not an inadvertent act. It was a deliberate and conscious act on his part and it was also not an isolated one. ... I find that it is most likely that whatever manoeuvre he adopted on the day of the accident was a manoeuvre he had done before in similar circumstances. It is also a significant departure from the method adopted by the other operators, Tony Ridolfo, Mr Job and Mr Harvey. It was clearly an unsafe system and one that was contrary to the demonstrations and the verbal instructions and advice that had been given to him."

237 After the accident, Mr Fitzpatrick installed a barrier between the cabin and the splitter box. He described the barrier as "a big metal pipe tube ... lined with mesh" (AB 10). Mr Fitzpatrick engaged an employee to operate the machine and he installed the barrier "for obvious reasons" (AB 10 - 11). The barrier was about 830 centimetres in height (AB 68). Mr Fitzpatrick operated the machine from time to time after the accident, and he used the metal bar to manoeuvre any log rings that had fallen into an incorrect position (AB 69). He stopped the machine when he was realigning the log rings.

238 The learned Judge also found that Mr Fitzpatrick's negligence was the sole cause of the accident and that any breach of duty by Jobs Engineering or V & D Ridolfo did not materially contribute to his damage. Her Honour said, at [60]:

"[Mr Fitzpatrick] has submitted that his actions or role in contributing to the accident is relevant only to the question of contributory negligence. However, I am satisfied that this is not a case of [Mr Fitzpatrick's] negligence merely contributing to the accident. In the circumstances of this case it was [Mr Fitzpatrick's] actions that caused the accident and not any breach of duty by either of [Jobs Engineering or V & D Ridolfo]. The accident did not occur because [Mr Fitzpatrick] was not prevented from placing his leg in the splitter box by the installation of a interlocked barrier guard. It occurred because he deliberately chose to do that despite the obvious risk. Unfortunately that resulted in his serious injuries. It was submitted by [Mr Fitzpatrick] that if a barrier guard had been in place he would not have been able to place his leg in the splitter box and the accident would not have happened. It is submitted that from an objective point of view that is therefore the cause of his accident. However, that ignores the fact that it could just as easily be said that the accident would not have happened if [Mr Fitzpatrick] had not acted in the way he did."

239 Mr Fitzpatrick has established, to my satisfaction, that Jobs Engineering breached the duty of care it owed to him. He has also established that the breach of duty increased the risk of an event (namely, an operator's foot and leg becoming trapped or injured in the open, unguarded splitter box as a result of the operator having deliberately inserted a foot into the box to realign a misaligned log ring) and that the event in question occurred in relation to him and resulted in his suffering reasonably foreseeable loss or damage. Further, Mr Fitzpatrick has established that V & D Ridolfo would have been likely to have installed a fixed barrier guard on the cabin if Jobs Engineering had given advice to that effect.

240 In the circumstances, a prima facie causal connection existed between Jobs Engineering's breach of duty on the one hand and the event which resulted in Mr Fitzpatrick's reasonably foreseeable loss or damage on the other. Jobs Engineering therefore had an evidentiary onus to point to other evidence which suggested that no causal connection existed between the breach of duty and the occurrence of the event. For example, it was necessary for Jobs Engineering to point to evidence which indicated that Mr Fitzpatrick would have removed or climbed over a fixed barrier guard. In any event, however, it remained necessary for Mr Fitzpatrick to discharge the legal onus by persuading the learned Judge that, upon the whole of the evidence, it should be concluded that Jobs Engineering's negligence materially contributed to his damage.

241 In my opinion, Jobs Engineering did not satisfy its evidentiary onus in relation to Mr Fitzpatrick removing or climbing over a fixed barrier guard. It was not put to Mr Fitzpatrick, either by counsel for Jobs Engineering or by counsel for any other party, that if V & D Ridolfo had delivered the machine to him with a fixed barrier guard installed between the cabin and the splitter box, he would have removed the guard or adopted a work practice that would have circumvented the protection it offered. In my opinion, it was not fairly open to the learned Judge to conclude, as her Honour did at [54], that "it is just as likely that [Mr Fitzpatrick] would have either climbed over the barrier or removed the barrier leaving the mechanism in automatic mode and then accessed the splitter box", when a proposition to that effect was never put to him at trial. Mr Fitzpatrick's failure to use the metal bar delivered to him by V & D Ridolfo, and his adoption of a dangerous work practice when a fixed barrier guard was not installed, do not justify her Honour's adverse finding. Compare Boston Clothing Co v Margaronis (1992) 27 NSWLR 580 per Kirby P (with whom Waddell AJA and Samuels AJA agreed) at 590; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 per Mason P (with whom Beasley and Tobias JJA agreed) at [31] - [38]. This Court is therefore entitled and obliged to set aside that finding.

242 If Jobs Engineering had discharged its duty of care to Mr Fitzpatrick, V & D Ridolfo would have been likely to have installed a fixed barrier guard and the installation of that guard would have prevented Mr Fitzpatrick from deliberately and consciously placing his foot in the splitter box for the purpose of realigning a misaligned log ring while the mechanism was still operating. The absence of a fixed barrier guard increased the risk of an operator using his foot in the manner and in the circumstances I have described. The top of the barrier guard installed by Mr Fitzpatrick after the accident was 830 mm above the cabin floor. The cabin floor was, in turn, 410 mm above the floor of the splitter box. Accordingly, the distance between the top of the barrier guard and the floor of the splitter box was 1.24 metres. Mr Fitzpatrick would have been unable, while positioned in the cabin, to reach the splitter box with his foot. Also, there would have been insufficient time (during the 8 second cycle of the splitter box mechanism) for him to have implemented a system which involved climbing over the barrier, while the machine was operating, in order to realign a misaligned log with his foot, and then climbing back to resume his normal position in the cabin. A fixed barrier guard would therefore have been effective to prevent the dangerous work practice which Mr Fitzpatrick adopted before the accident. Mr Fitzpatrick's extremely unwise action was not a supervening event which wholly negatived the causal effect of Jobs Engineering's breach of duty. Its negligence materially contributed to Mr Fitzpatrick's loss or damage. In my opinion, it should be concluded, on the whole of the evidence, that Mr Fitzpatrick discharged the legal onus upon him to prove causation.

243 Mr Fitzpatrick has made out grounds 9 and 11 of his appeal. It is unnecessary to deal with grounds 8, 10 and 12.

Mr Fitzpatrick's appeal against Jobs Engineering: conclusion

244 I would allow Mr Fitzpatrick's appeal against Jobs Engineering.

245 Mr Fitzpatrick alleged, in his appeal against V & D Ridolfo, relevantly, that:

"2. The learned Trial Judge erred in law and fact in failing to find that [V & D Ridolfo], which had undertaken the responsibility of completing the machine, and which had imported and supplied the machine to [Mr Fitzpatrick], owed a duty of care to potential users of the machine to install appropriate safety barriers and emergency stop switch, in accordance with the standards of a competent and experienced machine designer/engineer and relevant Australian Standard and WA regulations, and in accordance with appropriate safety criteria.

1. The learned Trial Judge erred in law and fact in failing to find that [V & D Ridolfo] breached [its] duty of care ... by failing to incorporate relevant safety features in the machine as referred to in ground 2 ..."

246 In my opinion, V & D Ridolfo did not owe a duty of care to Mr Fitzpatrick in the terms alleged. I am of that opinion for these reasons. First, V & D Ridolfo's business did not include, at any material time, the design, manufacture or supply of the machine in question (or similar equipment). Secondly, V & D Ridolfo's business did not, at any material time, include the design, manufacture or supply of a cabin for the machine in question (or similar equipment). Thirdly, V & D Ridolfo purchased the machine from Jobs Engineering for its own use, and not with the intention of re-supplying it to a third party. Fourthly, V & D Ridolfo engaged a firm of metal fabricators, G & G Welding, to construct the cabin for the machine after they had agreed on the design and method of construction. Fifthly, V & D Ridolfo operated the machine in its own business for approximately two years without any relevant incident. Sixthly, Mr Fitzpatrick approached V & D Ridolfo and inquired whether they were interested in selling the machine (and cabin), as constructed. Seventhly, the relevant hazard was the splitter box, which was open and very dangerous, and Jobs Engineering (and not V & D Ridolfo) was responsible for creating the hazard. Eighthly, Mr Harvey, on behalf of V & D Ridolfo, explained and demonstrated to Mr Fitzpatrick the safe operation of the machine including the manner in which the metal bar should be used to realign log rings which had become misaligned. Also, Mr Ridolfo explained to Mr Fitzpatrick the safe operation of the machine. Ninthly, V & D Ridolfo was not Mr Fitzpatrick's employer and did not have a continuing relationship with him.

247 It is unnecessary to consider any of the other grounds of appeal or issues raised by Mr Fitzpatrick in his appeal against V & D Ridolfo. V & D Ridolfo did not owe him a duty of care, as alleged, and his appeal against V & D Ridolfo should therefore be dismissed.

248 I am satisfied that Mr Fitzpatrick was guilty of contributory negligence in that he failed to take reasonable care for his own safety. His behaviour constituted a "departure from the standard of the reasonable man": Pennington v Norris (1956) 96 CLR 10 at 16.

249 An assessment of the culpability of a plaintiff and a defendant, for the purposes of apportionment, requires a consideration of the relative importance of the conduct of each party in causing the damage. The whole conduct of each negligent party in relation to the circumstances of the accident must be subject to comparative examination. See Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 at 68.

250 The issue of apportionment, as between a defendant who has been found to be negligent and a plaintiff who has been found guilty of contributory negligence, involves a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations": British Fame (Owners) v MacGregor (Owners) [1943] AC 197 at 201.

251 Mr Fitzpatrick's use of his foot to realign log rings which had become misaligned, without placing the splitter box mechanism in neutral, was, without doubt, extraordinary. He disregarded Mr Harvey's advice to use the metal bar for that purpose. Mr Fitzpatrick inserted his foot into the splitter box deliberately and not inadvertently. It was not an isolated incident, but a work practice he had adopted. The danger was obvious. Although the control lever was broken at the material time, Mr Fitzpatrick could have manually placed the splitter box mechanism in neutral (although the mechanism could not be locked manually). He was "well aware" of the dangers of placing any part of his body in the splitter box while it was still operating: see the learned Judge's reasons at [41]. Mr Fitzpatrick's negligence was significantly more culpable than that of Jobs Engineering. In the circumstances, Mr Fitzpatrick's damages should be reduced by 70 per cent in consequence of his contributory negligence.

Apportionment as between Jobs Engineering and V & D Ridolfo

252 I would dismiss Mr Fitzpatrick's appeal against V & D Ridolfo, and it is therefore unnecessary to deal with the issue of apportionment as between Jobs Engineering and V & D Ridolfo.

GIO's appeal against Jobs Engineering: grounds of appeal

253 GIO's proposed grounds of appeal against Mr Fitzpatrick are, relevantly for the purposes of these reasons:

1. The learned trial Judge erred in law and in fact in finding that [Jobs Engineering's] failure to design and install a barrier guard did not fall within the meaning of 'defective design' in the exclusion clause. The fact that [Mr Fitzpatrick] no longer relies expressly on [Jobs Engineering's] failure to design and install a barrier guard as a ground of negligence, does not preclude [GIO] from relying on this aspect of [Jobs Engineering's] breach of duty.

(a) The learned trial Judge erred in fact and in law in failing to recognise that if [Jobs Engineering] were found to have had a duty of care in respect of the barrier guard, the content of this duty would have been to have designed the wood cutting machine with adequate safety measures, including a barrier guard, to have designed the type and operation of the barrier guard and to have installed it prior to shipping of the machine or to have advised [V & D Ridolfo] of the need to install a barrier guard to [Jobs Engineering's] design.

(b) The learned trial Judge failed to take into consideration, alternatively to attach sufficient weight, to the evidence by Mr Job that none of the wood cutting machines designed by him prior to the sale of the machine to [V & D Ridolfo], had been designed with a barrier guard, that he had no plans, templates or drawings for a barrier guard and that the two wood cutting machines demonstrated to [V & D Ridolfo] in Tasmania had no barrier guard. At the same time Mr Job said that if he had looked at the relevant Australian Standards at the time that he designed the machine, he would have realised that a barrier guard was required.

(c) The learned trial Judge erred in fact in finding that the barrier guard could only have been erected on the cabin floor itself and that it would have been impractical and unsatisfactory to do so prior to shipping of the wood cutting machine. The learned trial Judge should have found that the barrier guard could have been affixed to the bed of the trailer or could have been affixed to the floor of the cabin to the same height of the existing corner posts.

The learned trial Judge should have found that if [Jobs Engineering] had a duty of care to incorporate in the machine such safety features as were necessary to enable the machine to operate safely, the content of that duty would have been to design the wood cutting machine with a barrier guard and to install it prior to shipping, alternatively to installing it, to advise [V & D Ridolfo] of the need of a barrier guard and of its design. The learned Judge should further have found that [Jobs Engineering] breached this duty of care by failing to design and install prior to shipping a barrier guard, that this breach arose from defective design and fell within the exclusion clause in the policy.

...

1. ... in the event of this Honourable Court finding that [Jobs Engineering] had a duty of care to provide advice and information to [V & D Ridolfo] regarding the safety features to be installed and/or the written instructions to be provided to enable the machine to operate safely and that [Jobs Engineering] breached this duty by failing to provide advice and information regarding the safety features to be installed and the instructions to be provided, the proximate cause of [Jobs Engineering's] liability to [Mr Fitzpatrick] was a failure to advise in a professional capacity, which is excluded from cover under the policy by exclusion clause 10(a).

254 At the hearing on 26 September 2006, GIO applied for leave to amend its grounds of appeal against Jobs Engineering. Proposed ground 6 was entirely new. GIO had not previously sought to invoke exclusion clause 10(a) of the insurance policy.

GIO's appeal against Jobs Engineering: the provisions of the insurance policy

255 GIO insured Jobs Engineering under a policy described as a "combined business insurance policy". Section 7 of the policy is concerned with public liability insurance. By s 7, GIO agreed to indemnify Jobs Engineering, as follows:

"We will indemnify you in respect of all sums which you shall become legally liable to pay for compensation in respect of:

(a) bodily injury (including death and illness)

(b) damage to property (including loss of property)

(subject to the excess as stated on the certificate of Insurance)

caused by an occurrence in connection with the Business and which occurs during the Period of Insurance.

In addition, we will also pay legal costs, charges and expenses incurred as a result of your entitlement to indemnity under this Section and incurred with our written consent.

..."

256 The exclusions to the agreed indemnity for public liability include exclusion 10, which provides that GIO shall not be liable for claims:

"Arising

(a) out of a breach of duty owed in a professional capacity by you or persons for whose breaches of such duty you may be legally liable;

(b) ... "

Exclusion 17 provides that GIO shall not be liable for claims:

"In respect of bodily injury or damage to property caused by the nature, condition or quality of goods (which expression includes containers) sold or supplied by you other than:

(i) goods under your control or in your actual physical custody or of any person in your direct service;

(ii) goods sold or supplied at or from a canteen provided by you for your employees."

257 Section 7 of the policy provides for certain "optional benefits" to apply if those benefits are shown in the certificate of insurance. GIO and Jobs Engineering agreed that an optional benefit concerning "products liability" should apply. The relevant provisions of the policy in respect of public liability insurance for "products liability" are these:

"'Products' means any goods, product or property sold, supplied or distributed by you (including their containers) in the course of the Business after they have ceased to be in your custody or under your control.

We will indemnify you in respect of all sums which you shall become legally liable to pay for compensation in respect of bodily injury or damage to property as a result of an occurrence and caused by the nature, condition or quality of Products sold or supplied by you within the Commonwealth of Australia.

In addition we will also pay legal costs, charges and expenses incurred as a result of your entitlement to indemnity under this Optional Benefit and incurred with our written consent.

...

We shall not be liable for:

(a) any defective design or error in formula or in specification of any of the Products processed or manufactured by you;

(b) ...

(c) ...

(d) bodily injury or damage to property arising out of Products sold or supplied where in respect of such injury or damage you would have been entitled to claim indemnity or contribution from any party but for an agreement between you and such party;

(e) bodily injury or damage to property caused by or arising out of Products manufactured specifically for and installed in an aircraft or other aerial device or caused by or arising out of Products which you knew would be so installed."

258 The policy contains an agreement between GIO and Jobs Engineering (on page 3 of the policy) that:

"Where insurance under any section of this policy is changed by any clause granting additional or optional benefits or by any endorsement, the insurance thereby provided shall be subject to the terms, exclusions and conditions both general and specific contained in or endorsed on this policy so far as they may apply."

GIO's appeal against Jobs Engineering: proposed ground 6 and exclusion clause 10(a)

259 I agree with Pullin JA that GIO should not be granted leave to amend its grounds of appeal to add proposed ground 6 for the purpose of invoking exclusion 10(a). First, for the reasons his Honour gives, GIO should be bound by the conduct of its case at trial. See University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; Water Board v Moustakas (1988) 180 CLR 491 at 497 - 498. Secondly, GIO's submissions in relation to proposed ground 6 are without merit. My reasons for that conclusion are set out below.

260 An insurance policy is a commercial contract and should be given a businesslike interpretation. See McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 per Gleeson CJ at 589 [22]. His Honour added:

"Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure (Lake v Simmons [1927] AC 487 at 509, per Viscount Sumner)."

261 The critical issue, in determining whether exclusion 10(a) applies or not, is whether Mr Fitzpatrick's claim against Jobs Engineering, as formulated in grounds 1(a) and 3 of his appeal, arises "out of a breach of duty owed [by Jobs Engineering] in a professional capacity".

262 In GIO General Ltd v Newcastle City Council (1996) 38 NSWLR 558, the appellant agreed to indemnify the respondent under an insurance policy against legal liability in respect of public liability, products liability and professional liability. By an endorsement, the policy was amended so that all claims relating to "the rendering or failure to render professional advice or service by the Insured or any error or omission connected therewith" could only be brought under a clause of the policy which related to "Professional Liability" as distinct from other clauses concerned with "Public Liability" and "Products Liability". The appellant refused to indemnify the respondent in respect of several claims which alleged that the claimants had suffered loss and damage in consequence of the respondent's negligent issue of a "Certificate of Structural Soundness" in respect of premises which were subsequently damaged in an earthquake. The appellant contended that the activities of the respondent, which gave rise to the claims, could not properly be characterised as "the rendering or failure to render professional advice". In the Court of Appeal of New South Wales, Kirby P (with whom Sheller and Powell JJA agreed) held that the relevant activities of the respondent must be examined to determine whether, in their nature, they are properly characterised as "professional". The source of the respondent's duties to perform the activities in question was a relevant, but not definitive, circumstance. Kirby P noted, at 568, that the term "professional", in a professional indemnity insurance policy, is very broad. His Honour concluded that, in the context of such a policy written for a local government authority, "professional" involves no more than advice and services of a skilful character according to an established discipline. The claims made against the respondent arose out of such activities and were therefore within the endorsement to the policy, and the clause which related to "Professional Liability". The judgment of the Court of Appeal was reversed in the High Court (Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85) on the basis of the proper construction of s 40 of the Insurance Contracts Act 1984 (Cth), but not on the point I have been discussing.

263 In Suncorp Metway Insurance Ltd v Landridge Pty Ltd [2005] VSCA 223; (2005) 12 VR 290, the Court of Appeal of Victoria considered whether a claim brought by a tenant against the respondent real estate agent (who was acting for the landlord) was "for breach of a professional duty by reason of any act, error or omission committed or alleged to have been committed by the Insured in the conduct of the Business", within a professional indemnity policy. The tenant was injured when she tripped and fell in the garage of residential premises which she leased through the respondent acting for the landlord. She alleged, relevantly, that the respondent had negligently failed to repair the floor of the garage or to inform the landlord of the danger. Buchanan JA (with whom Nettle JA and Hollingworth AJA agreed) observed, at 294 [16]:

"The question whether a breach of duty answers the description of a breach of a professional duty depends upon characterisation of the overall activity in the context of which the breach occurs, and is not answered by concentrating on the specific task which has not been performed or badly performed so as to give rise to liability. ... The breaches by the [respondent] agent's employees in the present case ... occurred in the course of carrying out the activity of property management, which in my opinion is to be regarded as a professional activity for the purposes of the policy of insurance."

His Honour rejected, at 295 [20], the appellant/insurer's argument that the liability for breach of a professional duty covered by the indemnity clause in the policy was limited to the duty which the respondent/agent owed to its client, the landlord:

"The insurer's argument would limit the policy to one providing indemnity against claims by those whose contractual relationship with the agent create and define the agent's professional duty. In my view, such a limitation is neither expressly nor implicitly present in the insuring clause of the policy. I think it sufficient that the claim for compensation against which the insurer promised indemnity was for acts or omissions which constituted breaches of a professional duty."

Compare FAI General Insurance Co Ltd v Gold Coast City Council [1995] 2 Qd R 341, and the observations of the Court of Appeal of Queensland, at 344, as to the meaning of the term "professional", and the views expressed by Nettle JA in Suncorp Metway Insurance, at 297 [28], in relation to those observations.

264 The term "professional" in the indemnity clause of a professional indemnity policy does not necessarily bear an identical meaning in an exclusion clause of a public liability or products liability policy. See Toomey v Scolaro's Concrete Constructions Pty Ltd (in liq) (No 5) [2002] VSC 48; (2002) 12 ANZ Ins Cas 61-519 per Eames J at 76,075 - 76,076 [66] - [69]. The context in which the term "professional" is used in an insurance policy may be significant in determining its meaning.

265 In Chemetics International Ltd v Commercial Union Assurance Co of Canada (1984) 11 DLR (4th) 754, an exclusion clause in a liability insurance policy excluded indemnity for "liability ... caused ... by ... errors or omissions in the rendering of professional services". The respondent/insured was found liable to a customer for damage suffered as a result of the respondent/insured's failure to give proper instructions to the customer in relation to equipment which the respondent/insured had supplied. The Court of Appeal of British Columbia held that the failure to give proper instructions was not an error or omission in the rendering of professional services within the meaning of the policy, and the fact that the employee who prepared the manual happened to have professional qualifications was irrelevant. Also see Government Insurance Office of New South Wales v Council of the City of Penrith [1999] NSWCA 42; (1999) 102 LGERA 102 per Powell JA (with whom Mason P agreed) at 107 - 108 [19] - [24].

266 In the present case, s 7 of the policy provides cover against public liability and products liability. It does not, however, provide professional indemnity cover.

267 At all material times, the core activities of Jobs Engineering's business comprised the design, manufacture and supply of machinery and equipment, including the machine in question with and without a cabin.

268 By the indemnity clause in the products liability cover, GIO agreed to indemnify Jobs Engineering, relevantly, in respect of sums which Jobs Engineering "shall become legally liable to pay for compensation in respect of bodily injury or damage to property as a result of an occurrence" and caused by "the nature, condition or quality" of any goods or products sold or supplied by it. If the nature, condition or quality of any machinery or equipment designed, manufactured and supplied by Jobs Engineering were to cause personal injury or property damage to any person, and the relevant nature, condition or quality was attributable to the negligent act or omission of Jobs Engineering, there is a significant likelihood that the person suffering the injury or damage would have a cause of action against Jobs Engineering. If any and all negligent acts and omissions of Jobs Engineering, of the kind I have just mentioned, were to be characterised as breaches of duty owed by it in a professional capacity, within exclusion 10(a), the cover under the indemnity clause of the products liability insurance would be severely circumscribed. The indemnity clause would not respond unless Jobs Engineering's legal liability to pay was not attributable to its negligence or other breach of duty owed by it in a professional capacity, but arose on some other legal basis. The parties cannot have intended such an uncommercial and unreasonable result, and it is not a construction which the language of the policy unequivocally requires.

269 The products liability insurance clause contains several specific exclusions. I have set out the relevant provisions at [257] above. For example, GIO is not liable for "any defective design or error in formula or in specification" of any goods or products manufactured or supplied by Jobs Engineering in the course of its business. Exclusion 10(a) applies to the products liability cover by virtue of the agreement (on page 3 of the policy) which I have set out at [258] above.

270 I consider that exclusion 10(a) is limited, in the context of the products liability cover, to claims arising out of breaches of duty owed by Jobs Engineering to persons who have retained it to perform work or services in the course of its business. The exclusion does not extend to breaches of duty owed to third parties who may suffer foreseeable loss or damage as a result of negligent acts or omissions by Jobs Engineering in designing, manufacturing or supplying machinery and equipment, including the negligent failure to give advice of the kind which it should have given to V & D Ridolfo. My construction of exclusion 10(a) is consistent with the evident object of the products liability cover, namely, to provide indemnity, of real and not negligible value, in respect of claims for personal injury and property damage caused by defective goods and property designed and manufactured by Jobs Engineering, and put into circulation within Australia.

271 I should mention, for completeness, that before the accident there was some communication between Mr Fitzpatrick and Mr Job. The communication comprised three telephone conversations initiated by Mr Fitzpatrick. In the first conversation, Mr Fitzpatrick made an inquiry as to the cost of purchasing a new machine. In the second conversation, Mr Fitzpatrick informed Mr Job that he had purchased V & D Ridolfo's machine. Mr Fitzpatrick said that a hydraulic motor fitted to the machine needed to be repaired or replaced, and he asked Mr Job to recommend someone who could repair or replace it. Mr Job gave Mr Fitzpatrick the name of a company in Welshpool. In the third conversation, Mr Fitzpatrick made an inquiry as to where he could obtain a spare part which he needed to repair the machine's control lever. In my opinion, the communication to which I have referred did not constitute an express or implied retainer which obliged Jobs Engineering to give advice to Mr Fitzpatrick in relation to the safety features which should be installed to enable the machine to be operated safely. No relevant "breach of duty owed [by Jobs Engineering] in a professional capacity", within exclusion 10(a), arose in the course of or in connection with that communication.

GIO's appeal against Jobs Engineering: proposed ground 2 and the exclusion clause relating to "defective design"

273 I agree with Pullin JA, for the reasons he gives, that the amendment relating to ground 2(c) should be allowed. I am satisfied that Jobs Engineering would not suffer any relevant prejudice as a result of the other proposed amendments to ground 2, and I would therefore allow them.

(a) As to particular (a) of ground 2, although, as I have held, Jobs Engineering breached its duty to Mr Fitzpatrick by failing to advise V & D Ridolfo that a fixed barrier guard should be installed between the cabin and the splitter box, Jobs Engineering was not obliged to design the barrier guard itself or to install it (on the machine) before delivering the machine to V & D Ridolfo. Also, Jobs Engineering was not obliged to advise V & D Ridolfo that the barrier guard should be constructed in accordance with Jobs Engineering's design. In any event, any "defective design or error in formula or specification", within the exclusion clause, related to the cabin (which was not "processed or manufactured" by Jobs Engineering) and not to the machine.

(b) As to particular (b) of ground 2, none of the matters asserted in the particular establishes that Jobs Engineering's failure itself to design and install a barrier guard entitles GIO to invoke the exclusion clause.

(c) As to particular (c) of ground 2, I agree with Pullin JA, for the reasons he gives, that the matters asserted in the particular are without merit.

275 The balance of ground 2 does not add anything of substance to the other parts of the ground that I have already addressed.

GIO's appeal against Jobs Engineering: grounds 3 - 9 (as re-numbered by Pullin JA)

276 I agree with Pullin JA, for the reasons he gives, that grounds 3 - 9 (as re-numbered by his Honour) fail.

GIO's appeal against Jobs Engineering: ground 10 (as re-numbered by Pullin JA

277 If Mr Fitzpatrick's appeal against Jobs Engineering is allowed, it is unnecessary to decide ground 10 (as re-numbered by Pullin JA). I should note, however, that, in my opinion, ground 10 should fail. My reasons are set out below.

"pay legal costs, charges and expenses incurred as a result of your entitlement to indemnity under [s 7] and incurred with our written consent."

279 By the indemnity clause, GIO agreed to indemnify Jobs Engineering in respect of "all sums which [it] shall become legally liable to pay for compensation" in respect of bodily injury or damage to property. Jobs Engineering's entitlement to indemnity, and GIO's obligation to indemnify, arose upon Jobs Engineering incurring an obligation, enforceable at law, to pay compensation in respect of the injury or damage in question. Such an obligation would ordinarily (but not exclusively) arise upon a judgment being entered in a court of competent jurisdiction or a settlement agreement being made with the claimant who suffered injury or damage.

280 In my opinion, the expression "entitlement to indemnity" in the costs extension clause refers to Jobs Engineering's contractual right to an indemnity in respect of a claim which, if established or admitted, would be within the indemnity clause in s 7. The costs extension clause would not have a reasonable or businesslike operation if it applied only to legal costs, etcetera, incurred as a result of Jobs Engineering's having incurred a legally enforceable obligation to pay compensation to a claimant. Virtually all of Jobs Engineering's legal costs, etcetera, would, ordinarily, be incurred before any judgment was entered against it or any settlement agreement was made.

281 The costs extension clause should be given a construction which promotes its evident commercial purpose, namely, to provide cover in respect of legal costs, etcetera, incurred by Jobs Engineering, with the written consent of GIO, as a result of claims made against Jobs Engineering which, if established or admitted, would require GIO to indemnify it.

GIO's appeal against Jobs Engineering: conclusion

282 I would dismiss GIO's appeal against Jobs Engineering.

283 I would allow Mr Fitzpatrick's appeal against Jobs Engineering, but I would reduce his damages by 70 per cent on account of his contributory negligence.

284 The appeal by Mr Fitzpatrick against V & D Ridolfo, and GIO's appeal against Jobs Engineering, should, however, be dismissed.