Causation
80The onus of proving, on the balance of probabilities, any fact relevant to the issue of causation lay on the respondent at all times: s 5E, CL Act. To satisfy the element of causation he had to identify the action which, on the available evidence, the primary judge could conclude ought to have been taken. That action, if failure to take it was to be considered negligent, had to be such that the foreseeable risk of injury would require it to be taken, having regard to the nature of the risk and the extent of injury should the risk mature into actuality. It was necessary to establish that the primary judge could conclude as a matter of direct evidence or legitimate inference that, more probably than not, the installation of the transverse stair access system would have prevented or minimised the injuries the respondent sustained: Kuhl (at [45]) per French CJ and Gummow J; (at [104) per Heydon, Crennan and Bell JJ (all citing State of Victoria v Bryar (1970) 44 ALJR 174 (at 175) per Barwick CJ, McTiernan, Owen and Walsh JJ concurring).
81Roche's written submissions on causation contended that the respondent had to establish that the transverse stair access system would have obviated the risk of injury and that it was not sufficient that it be established that that system would have reduced the risk. It is apparent from Kuhl (and numerous other authorities, as to which see Varga v Galea [2011] NSWCA 76 (at [25])) that that submission must be rejected. It is sufficient that the suggested precaution would have minimised the injury. The primary judge (at [118]) accepted the expert evidence that such a system would have significantly reduced the risk of injury. That was sufficient to discharge the respondent's burden of proof in this respect. It is also, of course, necessary that the breach of duty be causally related to the injury. That was also established by the expert evidence.
82Roche's next submission with respect to causation was that if it had contacted Caterpillar to inquire about a means of obviating the risk of injury arising from the access configuration it would have been told that the company did not retrofit Cat 785Bs and that that would have been a sufficient response on its part. The submission should be rejected. Dr Grigg ascertained, relatively easily I infer, that a company based in New South Wales specialised in stairs suitable for such trucks and claimed to have sold many in Australia and exported them to several countries. There was no challenge to this evidence. Further the 2002 Guideline included a photograph of a Caterpillar truck smaller than the Cat 785B which had been retrofitted with a transverse stair access system which also demonstrated that such systems were available prior to the respondent's accident.
83Roche then complained that the respondent had failed to establish that there was a practicable timetable during which seven, or 42, Cat 785Bs could have been retrofitted with transverse stair access systems having regard to the time Roche took over Wambo.
84As to practicability generally, the primary judge remarked (at [112]) that the cost of retrofitting a transverse stair access system was "relatively minor" in the context of a piece of equipment costing approximately $2.6 million. This was a question his Honour appears to have posed for himself, instructed no doubt by s 5B(2)(c) of the CL Act, rather than in response to a submission by Roche. His Honour approached this issue on the premise that Roche would have to retrofit all the dump trucks it owned in Australia as opposed to the seven at Wambo. It is not, with respect, apparent to me why that is so. There was no evidence that dump trucks at Roche sites other than Wambo had the same configuration as that at Wambo, although as much may be inferred in the case of other Cat 785Bs. However there was no evidence as to the system of work at other Roche sites - in particular whether workers had to access the Cat 785Bs in the same manner as the respondent or whether they were parked in the same manner. Nevertheless, even accepting his Honour's premise, which he thought was significant (at [113]), Roche did not contend that retrofitting was "unreasonably expensive", a position his Honour found unremarkable in the light of the recommendation in the risk assessment/hazard study carried out after the respondent's accident that stairways be installed on the Cat 785B.
85Roche did not challenge his Honour's observations as to how it ran its case on the issue of practicability at trial. Nevertheless it sought to raise in this Court the argument that the respondent did not establish that it could have practicably retrofitted the dump truck with a transverse stair access system in the time since it assumed operations at Wambo. Insofar as the experts agreed that the retrofitting could be carried out during regular servicing, Roche also contended the respondent did not establish that any such servicing occurred during the period it operated Wambo prior to the accident. As will be apparent, neither of these matters was in issue at trial. In my view Roche should not be permitted to raise them now.
86A party is bound by the conduct of its, his or her case. Except in the most exceptional circumstances, it would be contrary to principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, that party failed to put during the hearing when the opportunity to do so was available: Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481 (at 483); see also Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at (8 - 9); Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867 (at [44]). A party cannot raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial: Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 (at [51]) per Gleeson CJ, McHugh and Gummow JJ.
87Roche submitted that it was entitled to raise a no evidence point on appeal notwithstanding these principles. It contended it would have been entitled to do so at the stage of submissions at trial after the evidence had closed.
88A party may raise a "no evidence" objection on appeal notwithstanding that no such objection was taken at trial, provided that the objection is one which, if taken at trial, would have been fatal to the appellant's case: Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517 (at [125]) per Gummow J, referring to Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367. In the latter case McTiernan, Fullagar, Kitto and Taylor JJ referred (at 377) to the practice that a ground of appeal which had not been raised upon the trial would not be entertained if it related to a defect which might have been cured at the trial but that if the objection was one which could not have been overcome it was thought proper to allow it to be taken for the purpose of doing justice between the parties. In Sydney Harbour Trust Commissioners v Wailes [1908] HCA 19; (1908) 5 CLR 879 , (at 889) per Isaacs J and Measures v McFadyen [1910] HCA 74; (1910) 11 CLR 723 (at 733) per O'Connor J, the two High Court cases to which their Honours referred as evidencing this practice, the point was made that if the defect sought to be raised on appeal was one which could not have been cured by evidence it could be raised on appeal. No fine point relating to when, at trial, such defect would be cured was identified.
89The "practice" referred to in Hampton Court Ltd v Crooks appears to me to be an expression of the principle stated in the authorities to which I have referred at [86]. In my view it has no application to this case. Had Roche sought to advance the timing argument at trial, even in the submissions stage, the respondent would have been entitled to seek leave to reopen its case to adduce evidence on the issue. Such an application would, in my view, most probably have succeeded in the light of the fact that the experts had addressed the practicability issue by agreeing retrofitting could be undertaken during scheduled maintenance activities and Roche had not contended any further practicability issue arose: see White v Overland [2001] FCA 1333 (at [4]) per Allsop J (as his Honour then was).
90Moreover, in my view, the respondent adduced sufficient evidence of the practicability of retrofitting the Cat 785Bs to raise the inference that such steps could be taken for a relatively modest cost and in a time which was not inordinate having regard to when Roche commenced operating Wambo - even if, as Roche contended, that time be taken to have commenced in November 2001. It is scarcely conceivable that heavy machinery such as Cat 785B would not have been serviced during that period. To the extent "slight evidence" of such matters would suffice (see Hampton Court Limited v Crooks (at 371)) it can be found in Roche's Incident Listing for the period 1 January 2000 to 14 April 2003, which showed that an employee had been injured while servicing a "785". In any event, the experts did not say retrofitting had to happen when a Cat 785B was serviced; merely that undertaking that exercise during a service could minimise the costs which Dr Briggs described as "modest" in any event.
91In the absence of evidence from Roche, which must have had full knowledge of the practicability or otherwise of having to retrofit the transverse stair access system to seven Cat 785Bs since its time at Wambo, including the times such vehicles were serviced, the primary judge would had this issue have been raised, have been entitled to infer that there was no practicable obstacle to the course for which the respondent contended. A conclusion based on an inference arising from Roche's failure to call evidence to refute that slight evidence does not offend the s 5B, CL Act dictate that the plaintiff always bears the onus of proving any fact relating to causation: see generally Woolworths Limited v Strong [2010] NSWCA 282 (at [60] - [62]) per Campbell JA (Handley AJA and Harrison J agreeing); special leave granted: Strong v Woolworths Limited [2011] HCATrans 131.