Consideration
89As I have said, the appellant was injured at the RAAF Base at Williamtown. The appellant's counsel submitted at trial that notwithstanding that the Williamtown Base was, accordingly, a Commonwealth place, the CLA applied by virtue of s 4(1) of the Commonwealth Places (Application of Laws) Act 1970 (Cth). The respondent did not demur. The issue was not raised on appeal and, in any event, on the assumption the Williamtown Base is a Commonwealth place (if it is not, the question is academic), counsel's submission at trial appears to me to be correct. The effect of the application of s 4(1) is "to enact a Commonwealth law in the same terms as each State law which falls within its terms": R v Porter [2001] NSWCCA 441; (2001) 53 NSWLR 354 (at [41]) per Spigelman CJ (Studdert J and Ireland AJ agreeing).
90There is no doubt the Commonwealth owed the appellant a duty of care, albeit that he was a member of the RAAF, he having been injured while on duty in peace time: Groves v Commonwealth [1982] HCA 21; (1982) 150 CLR 113. That did not exclude the fact that Serco, too, owed the appellant a duty of care: Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16; see also Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 (at [20]) approving Brennan J's reasons in Stevens (at 47 - 48).
91The appellant's case at trial and on appeal was that Serco controlled the circumstances in which Department of Defence employees conducted the cleaning operations in the kitchen of the Williamtown base. Serco did not seriously contest that proposition insofar as issuing instructions was concerned, and the primary judge appears to have accepted it. Thus his Honour set out the clause of Serco's contract which provided that it assumed "responsibility for the cleaning of all messing facilities" and the "meticulous work instructions" it devised stipulating procedures to be followed for cleaning and sanitising kitchen equipment, including the area the appellant was attempting to clean when he was injured.
92However, having apparently concluded that Serco owed the appellant a duty of care, the primary judge did not determine its scope. That step was important because, "duties of care are not owed in the abstract [but] ... are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question": Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [43]) per Gummow J.
93Serco essentially argued that its duty of care was confined to the preparation of the work instructions. Assuming for present purposes that that is correct (a sufficient limitation as further argument on this issue may take place at any new trial), it would have been open to his Honour, in my view, to find that Serco owed a duty to exercise reasonable care to the class of persons (of which the appellant was a member) obliged to clean parts of the mess in compliance with Serco's work instructions, to issue work instructions which established a safe system of work. That duty would extend to devising a safe alternative system when the method prescribed by WI 56 could not be followed.
94Once the duty of care and its scope was identified, it was necessary for the primary judge to consider the questions of breach and causation the case posed by having regard to s 5B, s 5C and s 5D of the CLA (and, should they arise, the provisions Serco pleaded in its defence) as, absent such reference, "there is serious risk that [those] inquiries ... will miscarry: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 (at [11], [15], [27], [41]) ("Adeels Palace"). As Serco conceded, the primary judge made no clear findings on the issues posed by s 5B of the CLA and did not get to the issue of causation at all.
95Thus, although the primary judge addressed (at [40] ff) the appellant's submissions concerning breach of duty, he did not, with respect, engage with the first issue posed by that issue, namely whether there was, in the proven circumstances, a risk of harm: s 5B(1). It was only through the correct identification of the risk of harm that his Honour could determine what a reasonable response to that risk would be: Roads and Traffic Authority of NSW v Dederer (at [18], [59]) per Gummow J; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 (at [192]) per Gummow and Hayne JJ. Absence of consideration at trial of the matters prescribed by s 5B of the CLA "may [be] reason enough to conclude that the question of breach of duty was not determined properly": Adeels Palace (at [39]).
96It is possible to read the primary judge's reasons as amounting to a conclusion that the appellant was injured because he deliberately devised his own system of cleaning the bench which entailed boiling the water to a temperature sufficient both to release the saturated fat and to sanitise the area, rather than first scouring, then rinsing the bench. However, this was not the case Serco advanced at trial nor, with respect, did Serco or his Honour put to the appellant questions warranting that conclusion. However it is clear that that conclusion was the basis upon which he decided the case adversely to the appellant.
97There are several difficulties with the primary judge's conclusions. The first is that because his Honour failed to identify the risk of harm at the outset of his factual inquiry, in my view he failed to appreciate, or engage with, the appellant's case on the risk of harm. That was that, absent a source of controlled hot water, heating water on a stove might lead to it being over-heated to the extent that it could burn a person in the appellant's position required to pour it over the benches - for whatever part of the cleaning task the appellant was seeking to accomplish.
98Secondly, in my view, his Honour's conclusion that the appellant deliberately boiled the water was not open on the evidence. I have set out the critical passages above. It should be noted that the appellant denied pouring boiling water onto the benches, denied "boiling this water", but said he 'needed to get it close to boiling" (see [ REF _Ref401650183 \r \h 13] - [ REF _Ref401647888 \r \h 15] above). The primary judge referred to that evidence but did not, it appears, attach any weight to it. There was no evidence at trial that the appellant did intend to heat the water to boiling point. Rather, the process by which the primary judge appears to have arrived at the boiling water case was as follows.
99First, his Honour rejected the appellant's evidence in cross examination that he thought he had scoured the bench before pouring on the hot water during the rinsing process, then been injured, because his Honour concluded he had deliberately refrained from giving that evidence in chief: see primary judgment (at [27], [29]). Secondly, his Honour concluded (at [29]) that the appellant's evidence as to first scouring, then rinsing, was unconvincing because "[i]f [the appellant] had already washed or scrubbed off the bench with detergent it was no longer necessary to pour on boiling water to release the saturated fat or to clean and sanitise the area". Thirdly, his Honour (at [32]) interpreted the appellant's evidence that he "needed to get [the water] close to boiling" as consistent with statements the appellant had made to medical practitioners.
100As to the first reason, both the evidence in chief, and the further evidence in chief given by leave following cross examination, demonstrate that the appellant was not asked a question which might reasonably be expected to have elicited an answer about what other parts of the cleaning process he had undertaken before the critical part when he was injured. It was only the questions in cross-examination the primary judge asked which elicited the answers he ultimately disbelieved.
101The appellant's obligation was "to answer questions put by counsel responsively ... to give a full answer, but no more"; a party-witness should not be criticised by a judge for "deliberately withholding the truth in a fashion crucial to a dismissal of that party's claim unless ... reasons [are] given for concluding that the truth has been deliberately withheld ... [and] .... the party-witness [was] given an opportunity to deal with the criticism": Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 (at [62], [67]) ("Kuhl") per Heydon, Crennan and Bell JJ. As will be apparent, with respect, his Honour's finding adverse to the appellant, insofar as his first reason was concerned, was not made in compliance with Kuhl.
102As to the second reason, there is an element of circularity in his Honour's conclusion. Even if the appellant had already scoured the surface with detergent, the solution that left on the bench had to be rinsed off with hot water to achieve a clean surface and, possibly, to sanitise it - the source of the latter requirement was not identified and, it might be inferred, was an explanation given to the cooks to explain the hot water requirement in WI 56. The appellant's evidence was that he poured the heated water onto the bench to accomplish that task. The primary judge however inferred that because the appellant had not first scoured the bench, he must have deliberately boiled the water to accomplish both tasks at once.
103This conclusion not only failed to take into account the appellant's evidence that he had not boiled the water. It also underpinned the reason his Honour rejected (at [63]) the appellant's case of inadvertence. His Honour ought to have taken into consideration the possibility of inadvertence in determining whether there was a real risk of injury arising from the manner in which the appellant was required to undertake the cleaning task on the day he was injured: see Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140 (at [62]) per Meagher JA (Beazley P and Macfarlan JA agreeing).
104As Serco's counsel did not cross examine the appellant to the effect that he had not followed the cleaning system set out in WI 56, but, rather, had devised his own short cut by boiling the water, it was incumbent on the primary judge to put that proposition to the appellant "if his conclusion that the [appellant] had not been frank and complete was to play a role in his decision adverse to [him]": Kuhl (at [75]). As the majority explained in Kuhl (at [69]ff), the obligation to do so stems from the rule in Brown v Dunn (1893) 6 R 67 in which Lord Herschell LC emphasised (at 70 - 71) that the proposition that if a witness' evidence is to be impeached, the witness must be given "an opportunity of making any explanation which is open to him ... is essential to fair play and fair dealing with witnesses".
105Finally, to the extent the primary judge referred to medical histories, it should be noted that the difficulty in relying upon such histories has been stated frequently: see Gulic v O'Neill [2011] NSWCA 361 (at [24]) per Whealy JA (Campbell JA and James J agreeing). His Honour referred (at [32] - [33]) to statements apparently attributed to the appellant in reports from Mr Wenzel, Dr Phillips, Professor Ehrlich. Dr Potter and Dr Meares. As far as I can see, Mr Polin asked the appellant only about the history he gave Mr Wenzel about a year after the incident which was apparently recorded as stating he "believed that the flight sergeant directed [him] and others to work in a faulty kitchen ... [and] use the electric grill to boil water that had to be used for washing up plates as well as cleaning the kitchen area in general". The appellant agreed that "if it's written in the document that must have been what I said". It was not put to him that that was what he did on the day in question, or that his evidence that he did not boil the water on this occasion was inconsistent with that, or any other history: cf Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 (at 590) (per Kirby P, Waddell and Samuels AJJA agreeing). In my view, it was not open to his Honour to reject the appellant's evidence at trial in reliance on histories the appellant was not given an opportunity to deal with.
106Parties to litigation are entitled to a fair trial at which they can put their case properly before the judge: Jones v National Coal Board [1957] 2 QB 55 at 67; [1957] 2 All ER 155 at 161, referred to with approval in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 ("Stead") (at 145). Where a party is denied a fair trial, a new trial may be ordered unless to do so would be a futility. Further, where a "denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference": Stead (at 145).
107Accordingly, in my view, the primary judge determined the case in a manner not open on the evidence and with which the appellant had no opportunity to deal, such as to warrant the conclusion he was denied a fair trial. The significance of his Honour's conclusion is self-evident. The extent to which it depended upon him rejecting the appellant as a witness of truth is evident from his Honour's acknowledgement in declining to proceed to a hypothetical assessment of damages (in the event this Court disagreed with his conclusion on liability), that the view he had formed about the appellant's credit because of his rejection of the appellant's case was so adverse, that a reasonable apprehension of bias inference was available.
108Both parties accepted that if the Court came to the view that the primary judge had denied the appellant procedural fairness in the sense for which he contended, a new trial should be ordered: see Kuhl (at [76] - [77]). In my view the primary judge did so act. However the question whether a new trial should be ordered turns on the significance of the denial of procedural fairness on the determination of the case.
109On a s 75A appeal, such as this matter is, the Court has wide powers, including to make any order which the nature of the case requires: s 75A(10), Supreme Court Act 1970 (NSW). Insofar as the power to order a new trial is concerned, the Court is constrained by UCPR 51.53(1) not to make such an order on the grounds there specified or "on any other ground unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned". In order to determine that question, it is necessary to consider matters going beyond "the bare question of whether there ha[s] been any departure from applicable rules of evidence or procedure": Weiss v R [2005] HCA 81; (2005) 224 CLR 300 (at [18]). The Court must have regard to "the essential justice of the case" to determine "whether the error of the judge, if there was one, really bore upon the ultimate result": Freeman v G J Coles & Co Ltd [1967] 1 NSWR 297 (at 300) per Herron CJ (with whom Sugerman JA agreed); applied by Spigelman CJ (Beazley and Bryson JJA agreeing) in Tory v Megna [2007] NSWCA 13 at [41]; see also Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 (at 39).
110It is also necessary, in applying UCPR 51.53, to take into consideration the overriding purpose referred to in s 56 of the Civil Procedure Act 2005 (NSW) "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Alchin v Daley [2009] NSWCA 418 (at [54]) per Sackville AJA (McColl and Young JJA agreeing).
111For the reasons I have given it is, in my view, manifest that the primary judge's error "really bore upon the ultimate result". I do not accept that the matters Serco raises in its notice of contention detract from that conclusion. Without binding any future trial judge, in my view, the risk of harm from water heated on a stove being heated to a point where its temperature might exceed that available from a controlled water source was readily foreseeable and was not insignificant. This was not a case such as that referred to in Seage v State of New South Wales [2008] NSWCA 328 ("Seage") (at [32]) per Macfarlan JA (Tobias JA and James J agreeing) to which Serco referred, in which a plaintiff was injured while carrying out the sort of "everyday activities in which employees might incidentally engage in the course of their employment, being activities which if not performed with care might lead to injury [such as] using knives in the staff kitchen[,] ... not ... scald[ing] themselves when pouring water which they have boiled for their tea or coffee" and the like. On the appellant's case, he was injured while carrying out his "regular duties or activities" trying to comply with Serco's WI 56: cf Seage (at [33]).
112It is not possible to answer the causation issue Serco raises in its notice of contention on the findings of fact which were made, however, prima facie, on the appellant's case a finding of causation was open.
113I accept that the appellant's case does not appear to be a large claim. However that conclusion is a necessarily imperfect one reached without the advantage of having seen the appellant give evidence and form an impression of the effect of the injury upon him, especially in the light of the psychiatric evidence. In my view in circumstances where it is apparent that the appellant's case was not given proper consideration it is appropriate to order that there be a new trial: see Dixon v Whisprun Pty Ltd [2001] NSWCA 344 (at [74]) per Heydon JA (Beazley JA and Davies AJA agreeing).