(Pat is a reference to Mr Keane.)
48 As earlier stated, Mrs Keane was an extremely impressive witness. She conceded a number of matters that, on one view, were unhelpful to her case. She had a clear recollection of detail, answered questions directly and without prevaricating. I accept her evidence completely.
49 On the basis of the evidence I accept, I find that Mr Horsfall instructed Mr Keane in or to the effect recalled by Mrs Keane. It is unnecessary to rely on the evidence of either Mr Slattery or Mr Rigby, but Mr Slattery corroborates, at least, that Mr Keane was, prior to the accident, operating on the understanding that he was moving the steam engine on the instruction of Mr Horsfall or to facilitate his work in a manner consistent with the evidence of Mr and Mrs Keane and inconsistent with Mr Horsfall. Mr Rigby was a wholly unbelievable and unreliable witness who was aggressive in his manner and inconsistent in his answers. Some aspects of his demeanour were similar to those of persons affected by alcohol, at least during some of his testimony.
Was There a Duty of Care
50 The defendants concede, if the Court finds that the direction was given in relation to the movement of the steam engine and the method of its movement, that there was a duty of care owed to Mr Keane by the defendants. The Court has so found. While a relationship of employment creates problems associated with the capacity to commence proceedings without other steps being taken, any of the relationships between the plaintiff and the defendants involve, whether or not they are relationships which are intended to be legally binding, a licence by the defendants for Mr Keane to be on the premises. Either that licence is the product of a contract, or it is a licence, without any ancillary legal relationship, for the mutual benefit of the plaintiff and defendants. The nature and content of such a duty has been discussed and is dealt with by the High Court in Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7. Before dealing with Papatonakis I repeat the statement of the High Court in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540; 194 ALR 337; 77 ALJR 183. The High Court there stated two general observations which ought to be borne in mind in any negligence proceeding:
"However, the co-existence of knowledge of a risk of harm and power to avert or to minimise that harm does not, without more, give rise to a duty of care at common law. The totality of the relationship between the parties, not merely the foresight and capacity to act on the part of one of them, is the proper basis upon which a duty of care may be recognised." (Per Gummow and Hayne JJ at [145].)
51 While the above comments were made in the context of the duty of care alleged for a statutory authority, it is an important reminder of the qualifications on liability at common law more generally.
52 Nevertheless in Papatonakis, above, the High Court made clear that a duty of an occupier to an invitee is the ordinary duty of reasonable care.
53 In some respects the issue associated with the relationship between Mr and Mrs Keane and the defendants is only peripheral. It is relevant to determine that relationship to ensure that no special or different liability arises. Whether, as argued by the defendants, the relationship was one of purchaser in possession or it was a legal relationship of management contract or informal arrangement with no binding legal effect, the duties on the defendants would be the same. There is no suggestion in this case by any party that the plaintiff was a tenant: Sakoua v Williams [2005] NSWCA 405; (2005) 64 NSWLR 588. Nor is there a suggestion that the plaintiff had exclusive occupancy.
54 The defendants, in relation to the possibility that the relationship was purchaser in possession, submitted that the duty imposed was the same or similar to the duty imposed on a vendor of goods. I doubt that. Apart from anything else, a purchaser in possession of property is entitled to expect under the licence that the owner and occupier of the premises would have a duty to take reasonable care to ensure that the premises and those goods on them were not defective if used as expected. There is not always a duty between vendor and purchaser or vendor and a consumer: McPherson's Ltd v Eaton [2005] NSWCA 435. Even if the duty were the same as for vendor and purchaser of goods, there is, in these circumstances, the "something more" that would be needed in such circumstances.
55 As was made clear in the evidence and was uncontroversial, Mr Horsfall, the principal of the corporate defendant, had a particular knowledge of steam engines of this kind and this particular steam engine. Firstly, Mr Horsfall was aware that steam engines ought not be moved without the flue being reclined and bracketed along the body of the steam engine. Secondly, Mr Horsfall was aware that this steam engine had been placed some 10 years earlier in its then location and had not been maintained. Mr Horsfall himself made clear that moving a steam engine of this kind on its own wheels without lowering or removing the flue would be a risky exercise. In those circumstances, having directed Mr Keane to move the steam engine in order to allow the carriage to be removed, a reasonable response to the risk of harm that existed was to warn Mr Keane that the engine should not be moved without the lowering or removal of the flue or instructing him to lower or remove it.
56 Further, because of the state of disrepair of the steam engine, a bracket (which would have originally been on the steam engine and is on other steam engines of a similar kind) was missing. That bracket would identify to a reasonable observer that the flue could be lowered and placed in the bracket for safety purposes. The absence of that bracket, which was known to Mr Horsfall, and if not, ought to have been known to Mr Horsfall, was a factor which Mr Horsfall ought to have taken into account in making more obvious the need for a warning and/or instruction as to the method of moving the steam engine. In the absence of the bracket on the steam engine, a reasonable observer would not realise that the steam engine could not be moved (or that it was dangerous to move the steam engine) without lowering the flue.
57 In the circumstances of these proceedings and the relationship between the parties, there was a duty of care owed by the defendants to Mr Keane, the nature and content of which was to take reasonable care for his safety while performing the function requested of him. That duty existed either because of the relationship between Mr Keane and the defendants, or because of the relationship together with the circumstance that the defendants ought to have known of the danger posed by moving the steam engine.
58 As made clear earlier, once liability is assessed, in the context of the instruction to move the steam engine in the manner adumbrated above, the liability of the defendants is not seriously in issue and is obvious.
59 The difficulty however arises in determining whether there was contributory negligence and the extent to which, if so found, the damages ought be reduced on that account.
60 It is now trite to observe that a person may be contributorily negligent even though the lack of care did not contribute to the accident which caused the damage: Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1; 161 ALR 155; 73 ALJR 403. As confirmed by the High Court in Astley, contributory negligence depends not on a duty of care owed by the plaintiff or breach of such a duty but on the failure of the plaintiff to protect himself or herself against damage.
61 Ultimately, the issue of contributory negligence involves an apportionment between plaintiff and defendant of their respective shares in the responsibility for the damage and involves a comparison both of culpability (the degree of departure from the standard of care of reasonable persons) and of the relative importance of those acts in causing the damage: Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529.
62 As earlier outlined the plaintiff was a tradesperson who had been trained as a motor mechanic. He had worked on metal construction and the maintenance of machinery both in the factory and in a construction context. However, the plaintiff had not before worked with a steam engine of this kind and was unaware of the fact that the flue was either supposed to be lowered into a bracket (which bracket was not in existence on this machine) or was supposed to be removed. Further, he was unaware of the instability inherent in a long flue of this kind and the brittleness of the material of which the steam engine was constructed.
63 Expert evidence was adduced as to the brittleness and the capacity of the flue to collapse once a force was applied to the steam engine sufficient to overcome the inertia necessary to move the steam engine. The fact, however, is, in these circumstances, less relevant than what would be reasonably appreciated.
64 While it seems to me the principles require me to approach the culpability and relative responsibility of Mr Keane on the basis of that which would be taken by reasonable persons, I take the view that I am entitled to take account of the attitude that would be taken by a reasonable person in the circumstances of Mr Keane. Those circumstances include a knowledge of metal. In this case, Mr Keane did not undertake a thorough inspection of the steam engine and, in failing to undertake such a thorough inspection, failed to take account of his own safety in a manner, which he ought reasonably have done. While Mr Keane acknowledges, in hindsight, that a more thorough inspection ought to have been undertaken, reasonable care for his own safety required him to do so even without the benefit of hindsight.
65 In all of the circumstances and particularly bearing in mind the expertise of Mr Keane, if such an inspection occurred it may have revealed the existence of the hinge on the flue and enlivened a view, hitherto unknown, that the flue could be lowered for travel. However, without the particular knowledge of the normal practice of lowering the flue, and given the obscure nature of the hinge, even a close inspection may not have resulted in any different practice being undertaken. Mr Keane was, after all, following the instructions on the movement of the steam engine given to him by Mr Horsfall who had experience with these machines.
66 In all of the circumstances, a proper apportionment as between plaintiff and defendant of their responsibility for the damage, taking into account both the degree of departure from the standard of care of reasonable people in their situation and the relative importance of the acts of the parties causing the damage, results in a conclusion that the defendants are twice as responsible as the plaintiff is for the damage. In those circumstances I fix contributory negligence at 33 1/3 percent.
Conclusion
67 The parties have agreed on the amount of damage and it is unnecessary for the Court to determine the quantum.
68 For the above reasons the Court makes the following orders: