Patrick Stevedores (No 1) Pty Limited v Vaughan

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41062/01 SC 20350/99

BEAZLEY JA STEIN JA DAVIES AJA

Monday 2 September 2002 PATRICK STEVEDORES (NO 1) PTY LIMITED v FRANCIS VAUGHAN Judgment 1 BEAZLEY JA: I agree with Davies AJA. 2 STEIN JA: I agree with Davies AJA. 3 DAVIES AJA: This is an appeal and a cross-appeal from the judgment of an Acting Judge of the Court. The respondent, Francis Vaughan, had suffered psychological damage as a result of his involvement in the dispute between the Patrick group of companies and the Maritime Union of Australia. His Honour rejected a claim that there was negligence on the part of the appellant on the 12, 13 and 14 April 1998, but held that there was negligence in respect of the events of 6 May 1998. His Honour awarded damages totalling $610,604.32 for the psychological injury which Mr Vaughan suffered. 4 In these proceedings, Mr J D Hislop QC and Mr H J Marshall of counsel appeared for the appellant, Patrick Stevedores (No 1) Pty Limited ("Patricks"). Mr G L Little SC and Mr L G Stone of counsel appeared for Mr Francis Vaughan. 5 Mr Vaughan was an employee of Patricks. He had become a waterside worker in 1970 and had joined the Waterside Workers' Federation of Australia ("WWF"), the predecessor of the Maritime Union of Australia ("MUA"). His father had been a waterside worker before him. He had represented WWF in negotiations with respect to conditions of work. In 1993, Mr Vaughan was promoted to the rank of Supervisor, thus joining the management section of Patricks' Botany workforce. He resigned from the WWF and joined the Australian Maritime Officers' Union ("AMOU"), a union which represented management workers. In 1995 he was further promoted to the position of shift supervisor which placed him in charge of supervisors. In 1996, he was promoted to the position of operational superintendent and was placed on permanent day shift in charge of the operational sections of the Port Botany works. In the course of his tasks, Mr Vaughan negotiated on behalf of Patricks with MUA representatives. It is clear that Mr Vaughan had a long association with the MUA and with its predecessor the WWF. 6 In early April 1998, Patricks decided to take steps to break the long-standing monopoly of the MUA in providing waterside workers for the loading and unloading of vessels. The reasons of the trial judge do not suggest that Mr Vaughan played any part in the formulation of that policy. 7 On the evening of 7 April 1998, Mr Vaughan saw on television that workers had been locked out of the Port Botany workplace and that the workforce had been dismissed. On the evening of 10 April 1998, Mr Vaughan received a telephone call from a Mr Hughes, one of his superiors, who informed him that he would be going back to work in two days time as a vessel, The Australian Endeavour, would be berthing. On the following evening, Mr Vaughan was given precise instructions. 8 The trial judge recorded the following facts, inter alia: "At 5 am on Easter Sunday, 12 April, the plaintiff arrived at the upper car park of Eastgardens Shopping Centre. Some other supervisors were present together with Mr Dougall, the Assistant Manager and Mr Don Hughes, Manager of the Port Botany Terminal for Patricks. Mr Hughes had a body guard with him. There were approximately 20 men there dressed in dark blue pants, dark blue shirts and beanies. A bus was waiting and, at the direction of Mr Hughes they all embarked upon it. A marked police car arrived and the bus followed that car towards Port Botany. … The bus then followed the police car down the access road towards the entrance to Port Botany. That access road was some 800 to 900 metres long from the corner of Foreshore Road to the gates at the entrance to Port Botany. For most of the way down the road the plaintiff could hear people shouting abuse at the bus, a couple of the windows were shattered by projectiles (one on each side). The glass did not break it merely shattered. … The bus was moving down very slowly, 10 metres at a time. Those on the picket line put something beneath the wheels and the bus would stop again. The bus was being rocked from side to side when it was stopped. Men were jumping on top of the bus and hitting it with baseball bats. Paint was thrown over the windscreen so that the driver had difficulty in seeing. Mr Hughes kept telling the driver - 'You've go to do this, step by step, step by step'. The plaintiff described the atmosphere within the bus as one of fear and his own feelings as, terrified. … It took the bus almost 2 hours to cover the 800 or 900 metres from the entrance to the access road to the main gates of the Port. During that time the plaintiff experienced great fear from the shouting, from men climbing on the bus, the banging of the bus with baseball bats, the throwing of pain over the windscreen, the breaking of the windows and the rocking of the bus. Some of the men picketing had unsuccessfully tried to force the door open. Once inside the perimeter of the Port the plaintiff noticed a large number of security men clothed in black and accompanied by Rottweiler or Alsatian dogs. … Also, instructions were given to the plaintiff and others that when they were inside the perimeter of the fence, no one was allowed to go anywhere without a security guard and then, if they moved around, they had to be in one of the defendant's utilities and the security guard was to drive it. During the course of the morning the plaintiff was instructed by Mr Dougall to go to the garage section and pick up one of the maintenance supervisors and take him over to the cranes to make sure that they were in running order. In accordance with those instructions, the plaintiff located the security man and they entered a utility. The security guard was driving and his Rottweiler dog was in the back of the utility. Suddenly a bolt crashed through the middle of the front windscreen hitting the driver on the left shoulder. That bolt was about 8 inches long and almost 1 inch in diameter. At that stage, they were not close to the boundary fence and it was the belief of everyone that the bolt had been projected by some form of catapult from outside the perimeter fence. … The Australian Endeavour arrived during the course of the morning and as the gangway was being lowered, the plaintiff and the workman were standing nearby. Without warning, two heavy pieces of equipment called twistlocks and which are used in restraining containers, fell from the ship and landed some 4 metres away from the plaintiff. … The plaintiff was spat on and abused by the crew. Whilst on board, some of the crew members referred to him by name. They were able to name him because there were MUA members on the P & O Wharf, some 200 metres away, looking at what was happening through binoculars. One or more of those men recognised the plaintiff and called out his name over loud halers. The plaintiff had to stay on board for some time to instruct the crew how to unload the vessel. When he returned to the administration block he told Mr Dougall that he had been subjected to abuse and that twistlocks had fallen near him and that he had been identified by name. Mr Dougall told him to ignore it. … On the way out, the bus was subjected to the same stopping and starting as had occurred in the morning. If anything the number of pickets appeared to be greater than in the morning. The treatment that the plaintiff and others had endured in the bus in the morning was substantially repeated and it took approximately an hour and a half to get to the end of the access road. During this time the plaintiff was subjected to the same fears and terrors that had occurred on the inward trip except that on this occasion his name was called out by loud hailer and he was described as a 'scab'". 9 On the evening of 12 April, Mr Vaughan felt disturbed. In evidence he said, "it was the worst feeling I'd ever had in my life". He was telephoned by Mr Hughes and he informed Mr Hughes that he was not sure that he wished to re-enter Port Botany. Mr Hughes assured him that the worst was over and that there would be greater security. He agreed to return on 13 April. 10 The second day was substantially the same as the first. The trial judge recorded these circumstances, for example: "The picketers filled the area from the fences on each side of the access road. He heard comments directed to himself to the effect that they were going to kill him and that he would regret being a 'king scab'. This time it took an estimated one and a half hours to cover the distance down the access road to the gate into Port Botany. …. During the course of the day, the shouting through loud halers and threats to the plaintiff continued. …. At 5.00 pm all who had come in by bus that morning met near the administration block and boarded the bus to leave. …. Once again the plaintiff was aware of a vehicle following the bus which took a circuitous route to Barton Park. When the bus stopped there, a Commodore car containing men whom the plaintiff recognised, arrived. An altercation occurred between 4 or 5 of them and Mr Dougall and a couple of other people who were alighting from the bus whilst the plaintiff was still on it. They were calling out - 'We know the scab 'C" is inside. He has to come out.' He knew that that was referring to him. He felt fear and helpless. He did not know whether to try and fight back. He was afraid and angry. By the time the plaintiff alighted from the bus, these men had moved away from it and were arguing with Mr Dougall and another person. The plaintiff managed to leave whilst these men were restrained by a couple of the workers and Mr Dougall. The plaintiff described his feelings on arriving home as inconsolable and uncontrollable. He was unable to sleep that night. He just tossed and turned. His palms were sweaty. He could not stop sweating in bed and ended up sleeping outside to give his wife a break. His wife described his condition as more withdrawn than the previous night and he just did not want to talk." 11 On the evening of 13 April Mr Vaughan was again telephoned by Mr Hughes. He informed Mr Hughes that he greatly feared for his life and for his family members due to the threats which had been received. He told Mr Hughes that he and his wife had received numerous threatening phone calls. He said that there had been no adequate protection and that the conditions were unbearable. However, Mr Vaughan was persuaded again by Mr Hughes to return the following day. 12 The trial judge recorded these facts, inter alia, as to the events of Tuesday 14 April: "Again the pickets formed human barriers on the ground and the Police had difficulty moving them. The picketers were pelting the bus with beer cans and bottles and the plaintiff heard his name called out, together with the threat 'We know where your grandson lives. He might not get home.' In addition, there were consistent threats against him. …. on this occasion, there were camera crews from Channel 10 and those on the picket line were playing up to the camera. There were women and children sitting in the picket line and being dragged away by a couple of police. Eventually, the plaintiff arrived home in a condition similar to that on the preceding days. His wife described his condition as a 'mess'". 13 The trial judge held that there had been no negligence on the part of Patricks with respect to those three days. He referred, inter alia, to the loss of revenue which Patricks might suffer should it not be able to load or unload vessels. His Honour said: "In the first place there was loss of revenue from loading and unloading ships which could be as high as five million dollars per month at Port Botany. The vessel, Australian Endeavour, had already arrived at the Port for loading and unloading and after that a further vessel operated by the Columbus Line (a major customer of the defendant) was also due to arrive. In addition, unless operations continued, vessels would be diverted to other ports and competitors of the defendant and there could be delays in the movement of shipping leading to possible penalties, loss of income and extra costs occasioned where emergency arrangements had to be made. Furthermore there was the risk of cancellation of existing terminal contracts and general stevedoring contracts which for the year ended 30 September, 1997, generated revenue of approximately $270,000,000 for the Patrick group along with threat of permanent loss of clients to competitors in a highly competitive market. This possibility had already been flagged by the concerns expressed in recent communications with executives of shipping lines such as Blue Star, Columbus, Mediterranean Shipping Co and NYK Shipping. The risk was said to be exacerbated by the fact that negotiations for the renewal of certain contracts were then either under way or shortly to be commenced."

The trial judge found that Patricks had taken all reasonable steps to safeguard the health and welfare of its workers. The trial judge outlined 18 steps which Patricks had taken to secure the safety of the workers. These steps included arrangements with the police and the provision of a bus that was of a solid secure construction with shatter proof windows and a solid door. I need not set out the steps in detail. 14 His Honour concluded: "When one balances out the very real interest that the defendant had for getting workers on to Port Botany plus the obvious risks of doing this on the one hand; and then takes into account the many and extensive steps taken by it to minimise or obviate risks of injury to the workers including the plaintiff on the other hand, one cannot be satisfied on the balance of probabilities that the defendant was guilty of any failure to take reasonable care in requiring the plaintiff to undergo the experience of entering and leaving Port Botany along that access road and/or in failing to call off the whole operation." 15 In my opinion, his Honour's approach erred in law. 16 Patricks, as the employer, had a duty of care for the safety of its employees, which duty extended to taking reasonable steps to protect the employees from harm that was reasonably foreseeable. Such a duty arises from the degree of control that the employer exercises over the lives of the employees. An employer has control over the nature and conditions of work, the time of work and the place of work. Employees are reliant for their safety on the exercise by employers of due care. 17 As Mason P said in State of New South Wales v Seedsman [2000] NSWCA 119 at para 162: "The employment relationship is one of the settled categories where a duty of care has never been in issue. So clear is the duty that it is non-delegable. In Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 98: 'The common law imposes a duty on the employer because the employer is in a position to direct another to go in harm's way and to do so in circumstances over which that employer can exercise control. The duty is, of course, not absolute; it is the duty 'of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury'. The duty ' extends to take reasonable steps in accident prevention and not waiting for accidents to happen before safeguarding the health and safety of employees ' ( Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 at [101] per Kirby J)." 18 In White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, it was held by Lord Browne-Wilkinson, Lord Griffiths, Lord Stein and Lord Hoffman, Lord Goff dissenting, that a Chief Constable owed police officers under his command a duty analogous to an employer's duty of care for the safety of his employees which obliged the employer to take reasonable steps to protect them from physical harm but that that duty did not extend to protecting them from psychiatric injury when there was no breach of the duty to protect them from physical injury. That decision may not be apposite to the present case for Mr Vaughan was placed at risk with respect to both physical harm and psychiatric harm, and the fear of physical harm was one of the factors leading to his psychological deterioration. In any event, it was held in State of New South Wales v Seedsman that White v Chief Constable of South Yorkshire Police did not express the law in this country. See Spigelman CJ at 123, Mason P at 159-160, Meagher JA at para 173. See also Mt Isa Mines Limited v Pusey (1970) 125 CLR 383, where the High Court of Australia held an employer liable to pay damages for a psychological reaction suffered by one of its employees. 19 It is not in dispute that the test of reasonable foreseeability is the well-known test stated by Mason J in his judgment in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44-47. Mason J concluded at 47: "A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone [1951] AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable." 20 On the issue of breach of duty, Mason J went on to say: "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." 21 Breach of duty was discussed by Mason, Wilson, Dawson JJ in Bankstown Foundry Pty Limited v Brastina (1986) 160 CLR 301 where their Honours said at 307-8: "It is as accurate today as it was thirty years ago to say that the duty 'is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury': Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at p 25, per Dixon CJ and Kitto J. We digress to remark upon the formulation preferred by Windeyer J, with whom McTiernan, Kitto, Taylor and Owen JJ agreed, in Vozza v Tooth & Co Ltd (1964) 112 CLR 316, at p 319 namely: 'For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.' This passage has been repeated more than once in recent decisions of the Court: Raimondo v South Australia (1979) 23 ALR 513, at p 518; McLean's Roylen Cruises Pty Ltd (1984) 58 ALJR at p 425; 54 ALR at p 7. It seems right to us to caution the reader against interpreting the concluding phrase in the citation, that is, 'without unduly impeding its accomplishment', as furnishing an additional qualification to an employer's liability independently of the question of what is reasonable in the circumstances. If protective measures are reasonably open to an employer then ordinarily they will not unduly impede the accomplishment of the task. The extent to which the proposed measures would unduly impede that accomplishment will bear directly on the question whether it was reasonable to expect them to be undertaken. Furthermore it has long been recognized that what is a reasonable standard of care for an employee's safety is 'not a low one': O'Connor v Commissioner of Government Transport (1954) 100 CLR 225, at p 230." 22 In the present case, the danger which Mr Vaughan encountered was not a danger which it was necessary to encounter in the ordinary course of work on the Port Botany worksite. It was not a danger inherent in working on the waterfront. The danger was created by Patricks itself when it decided, for its own economic benefit, to take steps to break the monopoly of the MUA. The first step it took was to lock out its employees, the vast majority of whom were members of the MUA. It was inevitable that there would be a major confrontation with the members of the MUA and with members of supporting unions. It was also inevitable that if, Patricks sought to bring workers onto the site, those workers would be at risk of physical or psychological harm. If Patricks had had due regard to the safety of its employees, it would never have sent them by bus through the angry milling crowd of unionists and union supporters. And it would not have asked them to work in a situation where they were subject to physical harm, to threats and to constant abuse under threats. 23 I have set out the discussion in Brastina as to the extent to which the duty to take care may be limited by a need to accomplish the tasks of the workplace. However, in the present case, the dangers which were encountered on the 12, 13 and 14 April were dangers which were brought about by Patricks' decision to confront the unions. The events which subsequently occurred were not ordinary incidents of work on the waterfront. The course of action which Patricks took which placed Mr Vaughan and others in a hazardous position was a course which Patricks could have avoided altogether. 24 I do not accept that the commercial benefits which Patricks sought to gain by confronting the MUA offset or abrogated the duty of care which Patricks owed to its employees. In my opinion, when Patricks chose to put its employees in a position of danger, it did so at the risk of compensating its employees who suffered physical or psychological damage thereby. The law of negligence so requires. 25 The trial judge found that Mr Vaughan suffered a Post Traumatic Stress Disorder which then developed into an Adjustment Disorder coupled with Panic Attacks. It is not in dispute that Mr Vaughan's condition was a recognised psychiatric illness. On the medical evidence which the trial judge accepted, Mr Vaughan's condition followed normally and naturally from the conditions which he experienced. The trial judge rejected medical evidence given on behalf of Patricks that Mr Vaughan suffered a constitutional psychiatric condition, that is, a genetically based disorder. I see no error in his Honour's conclusion. Indeed, I entirely agree with it. Over many years, Mr Vaughan was a valued employee. He was promoted to a position of considerable authority. And it is to be inferred that he was called upon to attend the worksite during 12, 13 and 14 April and 6 May because he was regarded as an effective and responsible employee. 26 Mr Vaughan experienced real fear from the attacks which were made upon the bus in which he travelled, from the eight inch bolt which was flung through the windscreen of the vehicle in which he was travelling and which hit the driver and from the twistlocks which fell from The Australian Endeavour within a few metres of him. He was also subjected to three days of constant abuse. Moreover, his psyche was disturbed by the accusations made against him, with some justification, that he was betraying his friends and colleagues who were members of the MUA. Necessarily, the accusations that he was a "scab" induced feelings of conflict in Mr Vaughan's mind. And finally there was the problem that, not only he was at risk, but his family including his grandchild were threatened. 27 Insofar as the two limiting tests enunciated by Mason P in Morgan v Tame [2000] NSWCA 121 have application they were satisfied in the present case. In Seedsman, Mason P referred to the two tests in this way: "In my judgment in Morgan v Tame [2000] NSWCA 121 I refer to two 'control devices' which limit claims for pure psychiatric injury: the need for a sudden impact or affront to the nervous system and the requirement of proof that the plaintiff was of a normal standard of susceptibility to psychiatric illness (unless extraordinary susceptibility was known to the defendant)." 28 In my opinion, the conditions encountered by Mr Vaughan were such that those conditions were satisfied. 29 However, I need not discuss this point further for, in Seedsman, it was held that the limiting tests do not apply to an employment situation. Mason P said in Seedsman at para 166: "it is in no way self-evident that the employer's liability for negligently caused psychiatric injury must necessarily fall in line with the law applicable to rescuers or ( a fortiori ) plaintiffs outside established categories of 'nervous shock victims'". 30 His Honour concluded at 168: "In my opinion, the application of well-established principles relating to standard of care and foreseeability are sufficient 'control devices' in the employment situation to justify the disregarding of or an exception to the requirement of a shock-induced illness."

Spigelman CJ and Meagher JA expressed like views. The reasons of Spigelman CJ and my own reasons in AMP v RTA [2001] NSWCA 186 proceeded on a like basis. 31 The medical evidence accepted by the trial judge did not specifically direct its attention to the issue of foreseeability but it did so indirectly by explaining the causal link between the events on the waterfront and Mr Vaughan's psychiatric condition. As Barwick CJ said in Mt Isa Mines Limited v Pusey at 389-390: "I think it could held that such an employer could and ought to foresee that the sight of a burning or recently burnt human might mentally disturb an employee whose proximity to the injured fellow employee ought to be foreseen. So much I think is within the ordinary experience of people who work with electric current, particularly electric current at a high voltage. No special medical or psychiatric knowledge is required in my opinion to foresee the possibility of injury by way of mental disturbance in such circumstances." 32 In my opinion, the evidence was sufficient to establish that it was reasonably forseseeable that bussing employees through crowds of angry unionists and their supporters and requiring the employees to work in the conditions which they encountered could well lead to the employees suffering physical or psychological harm. 33 For these reasons, in my opinion, the cross-appeal should succeed. 34 In this circumstance, I need not deal at length with the appeal which challenges the finding of the trial judge that the events of 6 May 1998 were events in which Mr Vaughan acted as an employee of Patricks. 35 The trial judge set out the following facts, inter alia, with respect to that fourth visit to the workplace: "On 1 May 1998, the plaintiff was asked by Mr Chapman, the Secretary of the AMOU to attend a meeting at his office at which other supervisors from Patricks would be present. The plaintiff duly attended and nine or ten other supervisors were present. Mr Chapman informed the meeting that it appeared that there could be some agreement on the dispute and that, as part of this agreement, an advance party would go on to the wharf to check the state of the equipment and to see if the terminal was operational. The members of the advance party had to be agreed between the MUA and Patricks. At about 3.30 pm on the afternoon of 6 May, 1998 Mr Chapman telephoned the plaintiff at his home and told him that he had earlier met with Mr Corrigan (the Chief Executive Officer of Patricks) and Mr Coombs (the Secretary of the MUA) and that the plaintiff's name had been approved to attend later that day at Port Botany as part of the advance party to inspect the machinery. The plaintiff was told not to take his car into the Port and that he was to go in on foot and to meet the other members of the party at the gates to Port Botany Terminal. … He arranged to meet Mr Phillips, the Planning Supervisor at Port Botany, so that they could walk in together. In accordance with the instructions they left their car and walked together the 800 or 900 metres down the access road and met the other members of the advance party at the gate. When about half way down the access road, they were joined by a policeman who walked in front of them. At that stage, the plaintiff was aware that some form of agreement had been reached but nothing had been finalised. When about half way down the access road, there were people on each side, behind a roped off area, who were screaming, yelling and spitting at and threatening the plaintiff. There were about 100 to 200 people there and about one police officer walking in front of the plaintiff and Mr Phillips. For some 500 metres of walking, threats were made to the plaintiff that when he came out he was dead and that he would not get out. In addition one man grabbed him. The plaintiff pushed him away. The policeman turned round and tried to calm the man down and, eventually got him back behind the ropes at the side of the roadway. The plaintiff joined up with the other members of the advance party at the gate and they entered the Port where he remained for three and a half to four hours checking the machinery for his employer. He then had to run the gauntlet back from the main gate up the access road. This had to be done on foot. He was offered no transport by his employer to get out and was similarly confronted on the way back by verbal abuse and threats directed at him and there was jostling. There were no police present when he left. Neither Mr Hughes or Mr Dougall was present that day. By the time he reached home the plaintiff was crying and saying 'It's finished - my job's gone.' He was 'shattered' by the thought that his career which he had enjoyed for nearly thirty years was finished." 36 The evidence of Mrs Vaughan was that her husband was even worse than he had been on the earlier occasions. She said he was getting more and more withdrawn and that "I honestly thought he could commit suicide and it worried me." She made arrangements for the plaintiff to be seen by their local doctor, Dr Howe on 8 May 1998. By this stage, the plaintiff was an emotional wreck. 37 One submission made in the appeal was that Mr Vaughan attended the workplace on 6 May 1998 not as an employee of Patricks but as a member of the AMOU, which union was attempting to resolve the dispute. The trial judge held that Mr Corrigan of Patricks had approved Mr Vaughan's attendance on that day and that Mr Vaughan attended as an employee of Patricks. I agree with his Honour's finding. Mr Vaughan was asked to attend Port Botany worksite because he was a valuable and experienced member of Patricks' workforce and Patricks could rely on him to check the state of the equipment and ascertain whether the terminal was operational. It is an inevitable conclusion that Mr Vaughan was asked to join the party and was allowed onto the site because he was an employee of Patricks and because Patricks and the MUA could rely upon him to inspect and report on Patricks' equipment. 38 It was further submitted that Mr Vaughan was a mere volunteer on 6 May and was in a good position to assess the risks of attending the wharf on that day. It was submitted that the risk of further abuse on 6 May was slight as the dispute was close to resolution. However, Mr Vaughan attended because he was a conscientious employee and wished to help solve the problems on the waterfront. He was not a mere volunteer. He was asked to be one of the group to check the machinery and its operation. He answered this call upon him. The call should not have been made having regard to his known reaction to the events of 12, 13 and 14 April. 39 The principle Volenti non fit injuria was relied upon. It is not applicable. Mr Vaughan suffered harm because he undertook tasks which he was called upon to do as an employee of Patricks. 40 It follows that negligence was established in respect of the events of 12, 13 and 14 April and of 6 May 1998. 41 Challenge was made to his Honour's finding that: "I am satisfied on the balance of probabilities that by the beginning of 6 May he had recovered to the extent where he was prepared to return to work and that it was the events of the 6 May which were the precipitating cause of all subsequent symptoms. Accordingly I would hold that the totality of his condition from 6 May 1998 onwards has been due to the negligence of the Defendant on that date."

I would prefer to say that the events of 6 May made a material contribution to Mr Vaughan's psychiatric condition. That is clear, for example, from the fact that Mr Vaughan's condition on the evening of and after 6 May was so bad that his wife sent him to a doctor, Dr Stephen Howe, on 8 May. Dr Howe reported that: "He was most distressed and upset. He was agitated and anxious. He complained of chest pains, shortness of breath and palpitations." 42 The principle to be applied is that stated by Lord Reid in Bonnington Castings Ltd v Wardlaw [1956] AC 613 when his Lordship said at 623: "In my opinion, it is proved not only that the swing grinders may well have contributed but that they did in fact contribute a quota of silica dust which was not negligible to the pursuer's lungs and therefore did help to produce the disease. That is sufficient to establish liability against the appellants, and I am therefore of opinion that this appeal should be dismissed."

The concept of "material contribution" is applied in Australian law. See, eg, the expression "materially causing or contributing to that injury" used by Gaudron J in Chappel v Hart (1998) 195 CLR 232 at 239. 43 Challenge was also made to his Honour's assessment of damages. However, I see no reviewable error in his Honour's assessment. 44 It was submitted that his Honour found negligence only in respect of the events of 6 May 1998 and that the injury to Mr Vaughan's psychological state had already occurred as a result of the events of 12, 13 and 14 April. It was submitted that damages should have been assessed only for the additional damage which occurred on 6 May 1998 or alternatively that a deduction should have been made to allow for the likely prognosis arising from Mr Vaughan's response to the events of 12, 13 and 14 April. I need not discuss this issue as the cross-appeal has succeeded. However, I should indicate that, in my opinion, the trial judge's approach was correct. 45 It was submitted that his Honour's assessment of Mr Vaughan's injuries as being 38% of "a most extreme case" was excessive. The award certainly seems high but his Honour had the advantage of seeing and hearing Mr Vaughan. His assessment was a discretionary one. I am not satisfied that the assessment involved error or was outside the range available to his Honour. 46 I need not discuss that other detailed submissions which were put in writing but were not the subject of elaboration in Mr Hislop's address. In my opinion, the submissions were not well founded. 47 For these reasons I would dismiss the appeal. I would allow the cross-appeal. I would order that the appellant pay the costs of the proceedings. 48 After judgment further orders were made:

(2) Respondent to advise the Court of costs order now sought, supported by short written submissions by noon on Wednesday 4 September 2002.

(3) Any response by 4.00 pm on Friday, 6 September 2002.

Note that final order for costs will be subject to further submissions. **********

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