Smith v Brambles Australia Ltd

td v Automatic Fire Sprinklers Pty Ltd [1967] 1 NSWR 29 Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 Jones v Dunkel (1959) 101 CLR 298 Kallouf v Middis [2008] NSWCA 61 Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 276 ALR 375 Lanza v Codemo [2001] NSWSC 845 Laundess v Laundess (1994) Aust Torts Reports 81-316 Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 McPherson's Ltd v Eaton [2005] NSWCA 435; (2005) 65 NSWLR 187 Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313 J & V Pesl v Ray Smith Tractors [2007] NSWCA 74 Rabay v Bristow [2005] NSWCA 199 Rhoden v Wingate [2002] NSWCA 165 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 Scott v Davis [2000] HCA 52; (2000) 204 CLR 333 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 TNT Australia Pty Ltd v Christie; Crown Equipment Pty Ltd v Christie; Manpower Services (Aust) Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460 Woolworths Ltd v Strong [2010] NSWCA 282 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 Zanner v Zanner [2010] NSWCA 343 Category: Principal judgment Parties: Craig Lionel Smith (Plaintiff) Brambles Australia Limited (First Defendant) Baden Cranes Pty Limited formerly GM Baden Pty Limited (Second Defendant) Gillespies Cranes Nominees Pty Limited t/as Gillespies Crane Services (Third Defendant) Representation: Counsel: Mr H Kelly SC with Mr T McKenzie, counsel (Plaintiff) Mr M Joseph SC (First Defendant) Mr G Curtin SC with Mr D Macfarlane (Second Defendant) Mr S Kettle, counsel (Third Defendant) Solicitors: Taylor & Scott Lawyers (Plaintiff) McCabe Terrill Lawyers (First Defendant) Riley Gray-Spencer Lawyers (Second Defendant) Hicksons (Third Defendant) File Number(s): 2006/267240

Judgment 1Early one morning in November 2003, the plaintiff, Mr Craig Smith, was operating a Liebherr LTM 1225 crane during a set up operation at the edge of Darling Harbour. The crane had a carrying capacity of some 225 tonnes and was being operated with a 65 tonne counterweight, when it collapsed without warning. Mr Smith was seriously injured when a part of the crane fell into the harbour and he was thrown some 4 metres to the ground. By a second amended statement of claim filed in 2010, Mr Smith sought damages. 2Mr Smith alleged negligence against his former employer, the third defendant, Gillespies Cranes Nominees Pty Ltd trading Gillespies Crane Services ('Gillespies'); against the former owner and operator of the crane, the first defendant, Brambles Australia Limited ('Brambles'), who sold the crane to Gillespies and who employed Mr Smith before he worked for Gillespies; and against the second defendant, Baden Cranes Pty Limited, formerly GM Baden Pty Limited ('Baden'), who modified the crane pursuant to a contract with Brambles, while it owned the crane. Breach of various statutory obligations were also alleged. 3The proceedings were defended and Brambles, Baden and Gillespies each alleged contributory negligence against Mr Smith. The proceedings are governed by the provisions of the Civil Liability Act 2002, so far as Brambles and Baden are concerned and the Workers Compensation Act 1987 in the case of Gillespies. 4After the crane was recovered from the harbour, the WorkCover Authority of New South Wales ('WorkCover') undertook an investigation. In these proceedings there was finally no issue between the parties about what had caused the collapse. It was caused as the result of the shearing of two dowel rods which were part of a quick release mechanism. That occurred when Mr Smith first drove the crane early on the morning of the collapse, for a short distance, without first releasing a brake by activating a dolly switch in the cabin of the crane. The crane was later modified, in order to prevent another such collapse occurring, if activating the switch was overlooked. 5There was also finally no issue that it was the result of Baden's modification of the crane for Brambles which created this grave risk of collapse, if the crane operator inadvertently overlooked releasing the brake by activating the switch, before the crane was driven. The serious risk of injury which resulted for anyone operating the machine, or indeed anyone in its vicinity, once it was damaged, was obvious. 6All of the defendants defended Mr Smith's claim on the basis that they were not aware of the feature of the crane which had resulted in its failure, when Mr Smith came to operate it on site after the dowel rods had been sheared off. On their case, despite the catastrophic collapse this crane was prone to if the brake was not released, none of the defendants were negligent, because none of them knew of the risk of collapse which resulted, if activating the switch was overlooked. 7The manufacturer of the crane, Liebherr-Werk Ehingen GMBH ('Liebherr'), was not made a party to these proceedings, even though it was Baden's case that the modifications it had made to the crane for Brambles, which had caused the collapse, had been undertaken in accordance with Liebherr's specifications. Five cross-claims were, however, brought. They were also each defended. They were:

Extension of time - Gillespies 10There was a claim for an extension of time to bring the proceedings against Gillespies, under s 151D of the Workers Compensation Act . Gillespies accepted that the discretion there granted must be exercised in order to do justice between the parties (see the discussion in Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 at [63] - [72]). 11Affidavit evidence was given as to the circumstances in which it was that the claim was commenced outside the three year limitation period. On that evidence, it was shown the delay had to do with the time necessary to establish that the relevant statutory threshold could be satisfied (see ss 313 and 314 of the Workplace Injury Management Act and Workers Compensation Act 1998). As submitted for Mr Smith, it must be accepted that Gillespies took a rather different attitude in 2006, when Mr Smith's degree of permanent impairment was disputed, to that which it later took. It was conceded in April 2010 that Mr Smith had suffered more than a 15% impairment. 12I am satisfied in the circumstances revealed on the evidence that the leave sought must be granted, having in mind the rationale for the imposition of the limitation period and the considerations discussed in Itek Graphix Pty Ltd, particularly at [73] - [85]. 13There was no suggestion that the delay here in question would preclude a fair trial, or that any other injustice or prejudice could flow to Gillespies from the grant of the relief sought. In this case, given the course which the parties respectively pursued and the evidence as to the work necessary to be undertaken by Mr Smith's solicitors, given the attitude initially taken by Gillespies, I am satisfied that justice demands that the leave sought be granted.

The issues identified by the parties 14The parties did not agree about the issues lying between them. As the hearing unfolded, however, various concessions were made and some issues resolved.

The factual background The cause of the accident 15The accident was investigated by WorkCover. No prosecutions resulted from this investigation. Its report noted that the crane was one of only 10 of its type in the world. It was manufactured in Germany, sold into Korea and purchased by Baden in 1998, who then sold it to Brambles. As manufactured, this crane had to be dismantled in order for it to be transported. There was a mechanism which permitted its quick disassembly. Brambles later engaged Baden to modify the crane, in order to enable road travel under Australian conditions, without disassembly, by use of a trailing dolly. 16As a result this crane was unique. There was no other crane of this type which had such a modification, and only one other such crane in Australia, which was transported by use of a dolly. It and the third crane of this type in Australia, did not, however, have a quick disassembly mechanism. 17It became common ground that the collapse of the crane was the result of the shearing off of two dowel pins in the mechanism, which were designed to prevent a quick connection slew ring from rotating, when the crane was being operated. This fitting was variously described as similar to the bayonet coupling of a light bulb, or that of a camera lens. The slew ring had a hydraulic brake, which was designed to ensure the rigidity of the crane, during operation. This brake and two other levers, each had to be released by the operator, before the crane was driven, in order to allow the boom of the crane, which rested on the dolly, to articulate as the crane travelled around bends and corners when driven on the road. 18The dowel rods sheared off while Mr Smith was still at Gillespies' Wetherill Park yard on the morning of the collapse. This happened because the brake had not been released before the crane was driven off. Mr Smith and the members of his crew were leaving the yard, in the dark, shortly after 4am in order to drive to Darling Harbour. He almost immediately noticed something unusual about the steering, as he was driving the crane out of the yard, which he described as a 'tightness'. He turned left onto the roadway and pulled over. On checking, he found that the levers had been released, but the brake had not. He released the brake by activating the dolly switch in the cabin of the crane and then drove on, without incident. 19The dolly switch operated the slew ring brake. Unbeknown to Mr Smith, the failure to release the brake by use of this toggle switch meant that when the crane turned slightly to the right during the short drive out of the yard (of some 150 metres), the force placed on the dowel rods caused them to shear. This did not affect the crane as Mr Smith drove to the site. However, it did affect the operation of the release mechanism, when he came to operate the crane on site, with the result that the crane separated and the top part toppled into the harbour. 20When Mr Smith came to operate the crane, as it was being erected, he was using a 65 tonne counterweight. The action of slewing the boom allowed the quick connection mechanism to unlock, it no longer being locked in place by the two dowel rods which had sheared off. This allowed the upper part of the crane to detach from the carrier and to fall. Mr Smith did not understand what was happening when this occurred and was thrown to the ground, as he was trying to get out of the collapsing crane. 21On the evidence the failure to activate the toggle switch, which resulted in the dowel rods shearing off, was the result of operator error. The normal process which Mr Smith had been trained to undertake and had undertaken on hundreds of earlier occasions when driving the crane, involved him activating the switch, before driving off. His evidence was that he had failed to activate the switch before driving off only on a couple of prior occasions. On those occasions he had stopped, activated the switch and driven off, without incident. On the expert evidence, on those occasions he must have driven in a fairly straight line, before he realised his mistake, because even a slight turn when the brake was not released, created sufficient force for the rods to shear. 22Investigations undertaken after the collapse by Liebherr, suggested that the rods had been correctly manufactured in material strength and hardness. What caused them to shear was the failure to release the brake, so that there was a resulting application of a force on the rods greater than that produced when the crane was normally being worked or slewed against the slew brake. 23Liebherr was asked to investigate the cause of the accident. It advised Gillespies: "1. The crane / Dolly operation has been hydraulically and electrically installed and connected correctly to Liebherr specifications. 2. The bayonet quick release coupling had two (2) holding pins of 30m/m diameter sheared off in a horizontal anti clockwise direction. a/ These pins are currently with work cover and under test, however we can make the following comment: We believe these pins have been correctly manufactured in material strength and hardness. To shear them in the manner they have, a force greater than can be produced by working or slewing the crane against the slew brake. 3. When driving the crane with a dolly, the operator must ensure the slew brake and the free luffing hydraulic circuits are being opened via moving the two (2) levers and switching on the system in the carrier cabin. When this switch is engaged hydraulic pressure releases the swing brake and the luffing cylinder lowering brake valve. The hydraulic pump produces 55 bar pressure. To release this wing brake only 15 bar pressure is required. As a safe guard, should the hydraulic pressure drop to 35 bar than a red light will be flashing in the operators cabin alerting him that the slew brake may activate. It is our belief that the slew brake was not released and therefore the mechanical force by the dolly / boom over the pinion was possibly up to 200 tonnes meter(sic). This force caused the slew gear box housing to crack and the two holding pins to shear." 24The risk of any damage being caused by a failure to release the brake, before the crane was driven was not something of which Mr Smith was ever made aware and did not check, before operating the cane. Operation of the crane 25Mr Smith had set up the truck the preceding Saturday and had left it parked in Gillespies' yard. The yard was unlit at 4am, when he had to drive the crane to Darling Harbour, because of the Roads and Traffic Authority's ('RTA's) requirement to have the crane off the road by a certain time. He used his car headlights to provide sufficient light to conduct his checks of the crane. The switch had to be activated to release the brake, before the crane was driven off. Mr Smith could have either activated the switch when he left the crane on the Saturday, or before he drove it off on the morning of the accident. If he had forgotten to do that on Saturday, there was no mechanical reminder to do so before he drove off in the truck. Whatever be the explanation, Mr Smith overlooked activating the switch, before he drove off that morning. 26When originally trained, Mr Smith had been told that it was important to activate the switch because it had something to do with driving. When he drove off, what he noticed was a tightness in the steering. That was consistent with his training and so he stopped and checked the switch, found it had not been activated and then activated it. The result was that the difficulty was alleviated and he proceeded, not knowing of the risk he incurred in doing so. Mr John Gillespie was the managing director of Gillespies. On his evidence that was the correct procedure for Mr Smith to follow. He had done the same himself. Mr Gillespie's evidence was that: " I would regard that it was very simple, something that he procedurally forgot. It's like driving a car at night time. You might not turn your lights on, but then a further five metres you realise you haven't got them on. You turn them on and proceed." 27Nothing told Mr Smith that there might then have been any further problem with proceeding. There was no warning system alerting him to any damage to the crane. He had not been warned or instructed about any such problem or its potential catastrophic consequences. On the earlier occasions when he had overlooked activating the switch and driven a short distance before realising his oversight from how the steering was affected, nothing untoward had occurred when he proceeded after activating the switch. While it was argued that I would reject his evidence about these earlier occasions, I am unable to do so. 28In my assessment, Mr Smith was an impressive witness. He responded to questions promptly, making concessions even when they might have been adverse to his interests. Further, his evidence was corroborated by that of Mr Gillespie, who was an equally impressive witness. He too, had been a crane driver and he too, gave evidence that on occasions he had driven off and had then stopped, engaged a switch, and proceeded without any adverse consequences. 29Safe operation of the crane depended entirely on operator memory. When the switch was first activated, a light illuminated in the cabin, while the hydraulic system reached the correct pressure to release the brake. The light then went off. This took about 30 seconds. 30Once the light was off, whether the switch had been activated, in order to release the brake, could be observed by the driver, so long as there was adequate light in the cabin. The switch is located in the cabin to the right of the driver and whether it has been activated can thus be seen at a glance. There was, however, no warning given if activating the switch was overlooked. There was also nothing which warned the driver that the dowel rods on which safe operation of the crane depended, had been damaged, in the event that the crane was driven, without the brake being released. 31The absence of such warning mechanisms has to be considered in a context where it was essential for the crane driver to activate the switch, before driving off in the crane, in order to avoid catastrophic damage to the crane. Without the brakes being released, the dowel rods could easily be sheared off, if the crane was turned even slightly. The result was that the crane would then collapse, when later operated during set up. Such damage could be caused by driving the crane even for a very short distance, without the brake being released. 32The only warning of inadvertent failure to activate the switch was that it affected the steering, causing it to feel 'tight', but that gave no indication to the operator of the crane that the rods had been damaged, or that the crane was thus at risk of collapse, if operated. 33The system thus relied entirely on operator memory, to ensure that there was no inadvertent failure to activate the switch which released the brake, before the crane was driven. That system operated in circumstances where Mr Smith had not been instructed about the consequences of any failure to activate the switch, before the crane was driven. Nor was he warned of the need to check for damage before the crane was operated, in the event of inadvertent failure to activate the switch. The documentary evidence 34There was but little evidence as to the contract under which the modification work was performed by Baden for Brambles; the information provided by Liebherr to Baden about the modifications; or the information which Baden later supplied to Brambles about the work it had undertaken and the resulting operation of the modified crane. What was in evidence was the crane's operator's manual and the sale contract between Brambles and Gillespies, as well as various correspondence and other documents. 35The operator's manual was considered to be a part of the crane, always kept in the cabin, available for operator use. It was not modified when the crane was modified by Baden. The functions of the slew ring, the brake and the toggle switch, in the context of the modifications which had been made, were not described or dealt with in the original operator's manual which was provided to Mr Smith, both while he was employed by Brambles and by Gillespies. It was the original manual which went with the crane when it was sold to Gillespies. 36There was thus no explanation given in that manual of the risk of damage or collapse of the crane, which Baden's modification of the crane had created. That risk was that if the toggle switch was not activated to release the brake before the crane was driven, the crane would collapse on operation. In fact, the switch was identified in the manual as having to do with air-conditioning and not the slew ring brake. 37The evidence suggests that it was intended that the operator's manual would be modified, to reflect the modifications Baden made to the crane. Such information was not supplied to Mr Smith while in either Brambles' or Gillespies' employ. When the modification document came to light is not extremely clear. It is certainly referred to in the WorkCover report. Even if Mr Smith had been supplied with what appears to have been the modified manual produced at some point, it seems by Liebherr, that it would have alerted an operator to the risk which had resulted from the modification of the crane Baden had made, was not apparent. 38The accident occurred in November 2003. In evidence, was various correspondence. On 19 November 2003, Baden wrote to Liebherr: "Hans, With all the current investigations taking place by Work Cover (Berufsgenossenschaft) Liebherr come under strong criticism for not having operating instructions and work methods in the operators manual. I think you should act quickly and supply this information for all cranes. They have picked on the LTM 1250/1 just delivered to Gillespie and due to the accident on the LTM 1225 of Gillespie you must act immediately. The only Dolly operation we have is for the LTM 1090/2 and if you are going to use this than make it applicable to all crane models, than we can fit into operators manual as a supplementary addition." 39In December 2003, Liebherr advised Gillespies: "Liebherr LWE remains in the belief that there are safe guards in place and are sufficient, providing the operator adheres to operating instructions. It has been suggested by John Gillespie that additional safe guards should be considered for the event that the operator has a lapse of concentration." 40What operating instructions were being referred to by Liebherr, is not clear. That it was not the instructions in the original operator's manual supplied with the crane when it was sold to Gillespies, is apparent. This is confirmed by correspondence in March 2005, when Liebherr enquired whether Baden had modified or added to the operator's manual. Baden replied: "The additional section has been added to the operation manual. The added section refers to the original system as fitted to the crane prior to the accident & does not include the additional pins or the other safety systems. The customer, currently, does not use the "Quick Connection" as the crane now uses a "Dolly" to comply with axle weight requirements. The "Dolly" was fitted as describe in my F1996/04 12 Nov 2004." 41Baden's case was that it was not its role to write manuals. That was Liebherr's responsibility. The evidentiary basis for that submission is difficult to see. Baden was engaged to modify the crane. Modifications of the operator's manual, which was part of the crane, to reflect the modifications made, appears essential, given what the modifications permitted, transport of the crane without disassembly and the risks they created. Even if Baden's approach were accepted, clearly it was obliged to provide Brambles with any modifications to the manual which Liebherr had, in fact, made. On the evidence, none were supplied. 42If there was a written contract between Baden and Brambles, or Baden and Liebherr in relation to the modifications which Baden says it undertook in accordance with Liebherr's specifications, which could have shed light on these matters, it was not in evidence. Nor were the specifications in evidence. What was in evidence was a drawing and an undated unsigned 'After Sales Service Agreement', which was concerned with Baden providing after sales service for Liebherr, repair and maintenance, as well as dealing with the supply of spare parts. This agreement was said to have come into effect in May 1996. It does not deal with the modification work commissioned by Brambles. Nor does it deal with changes to the operator's manual of cranes. 43On the evidence, there is no question that Baden was aware of the need to provide an operator's manual for the crane. That was apparent from its request to Liebherr in 1998, when it acquired the crane, and asked for '2 sets of complete books and drawings for this crane'. The need to update the manual, once it had modified the crane, given the nature of the modifications undertaken, was obvious. 44Indeed, that was the matter which Baden itself raised with Liebherr in November 2003, after the accident. There it recognised that operating instructions and work methods for cranes were needed and it observed that it could fit what Liebherr supplied, in the operator's manual. So far as this crane was concerned, after the modifications, amended operating instructions and other information was required to be provided in the manual, in order to alert Brambles and operators of the crane to the fact that one result of the modifications Baden had made, was to create a risk that the crane would collapse, if the dolly switch was not activated so as to release the brake before the crane was driven, were not provided. 45That Baden ought to have ensured that such crucial information was provided in the operator's manual, is in my view unarguable. At the least, it ought to have warned Brambles of what was required, in order to ensure safe operation of the modified machine. 46That Brambles was aware that the operator's manual had not been modified to reflect the modification it had commissioned, is also apparent. There was no evidence that it took any steps to deal with that obvious deficiency. Indeed, it led no evidence as to what information it was provided by Baden about the modified machine and what instructions it gave the operator of the machine whom it then employed, as to safe operation of the modified machine. Nor did Baden lead any evidence about any instructions it provided to Brambles' employees about such matters. The inference is that such evidence would not have assisted their respective cases. 47What was provided to Gillespies when the crane was sold by Brambles, was the original operator's manual. It was not provided with any information as to the modifications which Baden had made to the crane, or any risks thereby created. On Brambles' case, it was entitled to rely on the sale contract, which obliged Gillespies to conduct its own due diligence as to the equipment it had purchased. In this respect the sale contract provided: " 17.4 Buyer Acknowledgment (a) The Buyer (1) acknowledges and agrees that it has completed all due diligence enquiries and investigations it considers necessary or appropriate with respect to its purchase of the Business Assets from the Seller pursuant to this agreement and in particular has received independent certification as to the fitness for purpose and merchantability of the lifting equipment referred to in schedule 4; (2) indemnifies and releasees and discharges the Seller absolutely with respect to any losses sustained by or Claims made against the Seller arising as a result of any due diligence carried out by the Buyer being incomplete or inadequate; on the basis that the Seller's warranty in Clause 17.1A is correct. (b) To the maximum extent permitted by law, all conditions, warranties, representations and undertakings (express, implied, written, oral, collateral, statutory or otherwise) except the Warranty in clause 17.1A, are excluded. To the extent that terms implied by statute cannot by law be excluded, the Seller's liability for breach of such terms is limited at its option to: (1) replacing or repairing the assets in question; (2) supplying equivalent assets; (3) paying the cost of replacing or repairing the assets; or (4) paying the cost of acquiring equivalent assets. (c) (d) Neither the Seller nor any Related Person makes any express or implied representation or warranty as to future matters, including future or forecast costs, revenues or profits. 17.1A Sellers Warranties The Seller warrants and represents to the Buyer as at the date of this agreement that the written records and written information relating to the Business which the Seller has made available to the Buyer before the date of execution of this agreement are true, complete and up to date copies of the documents which they purport to be. For the avoidance of doubt, neither the Seller nor any related person makes any express or implied representation or warranty as to future matters, including future or forecast costs, revenues or profits, which may be contained in any such written records or written information which have been made available to the Buyer. The training and instruction given to Mr Smith 48Mr Smith was a very experienced crane driver. He was employed as a crane driver by Brambles for some years before he took up employment with Gillespies, about a year before the crane collapsed, when it acquired the Brambles' crane operation. He then continued operating that crane for Gillespies. 49The only witnesses called to give evidence were Mr Smith and Mr Gillespie. From Mr Gillespie's evidence, it is apparent that Mr Smith was regarded to be a highly experienced, efficient and valuable employee. When Gillespies acquired Brambles' crane operation, it sought to obtain his services. When he was employed, Mr Smith was given no further information, training or instruction by Gillespies in relation to the crane or its safe operation. Gillespies acquired the business as a going concern. It continued the operation, acquiring both this crane and its driver, without taking steps itself to ensure that the information, training and instruction which Mr Smith had received in its operation was adequate, or that the system of work in operation ensured his safety. It simply permitted him to continue working under the existing system. 50Mr Smith's evidence in chief was given by way of statement, where he said as to the training which he received in the operation of the crane from Brambles: "5. I note this mobile crane was designed to be taken apart and it was modified to go into a dolly. I wasn't trained in relation to the relevant switch and I assume I didn't activate the switch. As soon as I set it up at Darling Harbour the crane collapsed. I never had formal training in relation to this crane but I have an open crane ticket. This machine was similar but different." 51Mr Smith's evidence was that he had not been trained in relation to the operator's manual which was kept in the crane cabin, but he referred to it when necessary. During the investigation into the incident, a WorkCover Inspector had shown him a copy of a document entitled 'driving with a dolly'. He said that was a document he could not remember seeing. On the evidence it was not a document he was ever supplied by any of the defendants. The document was finally not tendered. 52Mr Smith also gave oral evidence about the training he received at Brambles, from the former operator, Mr Hicks. In his cross-examination for Baden his evidence was: "Q. So you were told some time before your accident that having the dolly switch in the on position for travelling was "pretty important"? A. Yeah. ... Q. You were told some time before the day of your accident that having the dolly switch in the on position for travelling was "it's pretty important you do it as it's to do with the trailer"? A. Yeah, as in "trailer" he is referring Q. No, I am not asking you to explain anything. A. Okay, yes. Q. I'm asking you is that what was said to you? A. Yeah, that's right. ... Q. Perhaps I misunderstand you. Firstly, did you regard it as safe practice to drive the crane without having the dolly switch in the on position? A. No. Q. Do you regard not checking whether the dolly switch is in the on position before travelling as safe practice? A. Not checking, no. Q. As in you agree it is unsafe? A. Well, it's detrimental to the crane, apparently. Q. I'm sorry? A. Yes, it's unsafe. Q. Can I take you to a typical occasion when you had driven the crane without incident but before your accident? Either before travelling you would first either turn the dolly switch on the day or would have turned it on a day or two earlier, correct? A. (No verbal response) Q. We are talking about the occasions when you did not do this? A. Yeah, yeah, yeah. Q. And when you get to the work site to use the crane you had to turn the dolly switch off-- A. That's right. Q. --to allow the crane to operate properly? A. And the levers, yes. Q. And the levers? A. Yes. Q. And when you finished at the work site and were taking the crane somewhere else you'd have to turn the dolly switch and the levers back on, correct? A. Correct. Q. And then take the vehicle away to either another work site or Gillespies or one of Gillespies' or Brambles' yards, correct? A. Yes. Q. This red light on the dolly switch you have told Mr Joseph about and keeping in mind the answer you gave about the pump, that was a hydraulic pump, wasn't it, that the dolly switch operated? A. I would imagine it would have been." 53Mr Smith was also cross-examined for Baden about the training he had received in relation to the need to ensure safety. He agreed that if he had been told that something about the operation of the crane was very important, he would have followed the instruction without exception, whether he knew the consequence of following or not; he would do so because in his mind that would be the safe thing to do, even if he did not know what would happen, if he disobeyed the instruction. He also agreed that: "Q. When the boom slews, whether travelling or in operation, all of the force and weight goes through where the crane is attached to the chassis, is that correct in a layman's A. The actual fitting to the superstrata, the lower as in through the slewing where it is actually attached? Q. Yes. A. In the dolly position it is not all there, probably some would be supported by the dolly. Q. But what I mean is if the boom is slewing left or right A. Yeah. Q. the rotating forces, can I put it like that? A. Okay. Q. Go through where the crane is attached to the main chassis? A. Yes. Q. So if the boom could not slew left or right because of the dolly switch being in the off position, that would apply some force to the parts which attached the crane to the main chassis, correct? A. I'm not an engineer but yes, I would say so. Q. As a crane operator? A. As a crane operator, it would obviously transform. ... CURTIN Q. So, Mr Smith, you also came to know because of what you had been told and because of your experience of these earlier occasions that it was pretty important to have the dolly switch on in respect of those parts of where the crane attached to the main chassis, correct? A. Yes. Q. Accepting that you didn't have engineering qualifications, but being an experienced man and having been told what you did and having the experience that you did, you appreciated that one of the reasons why it was pretty important to have the dolly switch on was the possibility of safety issues, correct? A. Correct. Q. And you had driven this crane and dolly was it several hundred times before your accident? A. Oh no, not "700" times. Q. Not "seven," I meant several or hundreds? A. I used the word "hundreds" but I meant just as many times, yeah, over that employment time." 54Mr Smith also agreed that he regarded checking the dolly switch to be safe practice and did not consider it to be safe practice to drive without the switch being on, because that would be detrimental to the crane and unsafe. He was not exactly aware of the function of the flashing light in the cabin, but believed that oils would pass through to allow hydraulic pressure to build up to what was required and once pressurised, the boom could slew freely when travelling. 55In re-examination, Mr Smith agreed that he didn't always necessarily check that he had engaged the toggle switch before he drove off, because he had already engaged it when he had previously left the crane. He said that there were two past occasions when he could remember forgetting to engage the switch, but he was able to immediately remedy his oversight by engaging the switch after he driven about 30 metres, during which the effect of his oversight became apparent to him. 56When cross-examined for Gillespies, Mr Smith said that he was not aware that the crane could be split. He agreed that it was common for a crane of that size to have a dolly and that the dolly switch in this crane was not directly in his line of sight, but easy to see in the cabin. He also agreed that its position made it obvious whether it was on or off and that there was nothing to stop him from referring to the operator's manual, if he needed to. 57On the evidence Mr Smith was never instructed by anyone as to what any tightness in the steering indicated, if he inadvertently overlooked releasing the toggle switch, or the consequences of a failure to activate the dolly switch, before the crane was driven off. 58Mr Smith received his instructions from the prior operator of the crane. He was never given any explanation of the operation of the dolly switch, or the slew ring mechanism. Nor was he warned of the necessity to check that the crane had not been damaged, before he operated it, in the event that he forgot to activate the switch before he drove off. 59There was no evidence that when Gillespies acquired the crane and Mr Smith's services, that it sought any understanding from Brambles as to what training Mr Smith had received in operation of the crane. It appears that Gillespies simply proceeded on the basis of an assumption that he had received whatever training was necessary from Brambles, to ensure safe operation of the machine. That it had any basis for making that assumption, was not apparent on the evidence, especially when consideration is given to the sale contract and the provision which it made in relation to due diligence and Gillespies being obliged to make its own enquiries. What information did Baden, Brambles and Gillespies provide? 60The contract under which Baden performed the modification work for Brambles was not in evidence. Nor was any contract Baden entered with Liebherr in relation to the modification work; the documents by which any advice or instruction was provided to it by Liebherr; or any documents which showed what information Baden provided to Brambles or operators of the crane, in relation to the modifications it had made. Baden called no evidence from anyone involved in the performance of the modification work, or in its dealings with Brambles or Liebherr, before or after the modifications were made. 61Brambles called no evidence as to the information which it received from Baden about the modified crane and its operation, or the training which it gave Mr Smith or other operators in relation to the operation of the crane. Nor did it lead any evidence that it provided any information to Gillespies about such matters. It also called no evidence from anyone involved in its dealings with Baden or in providing instruction to Mr Smith as to the operation of the crane. 62Baden clearly did provide Brambles with some information about the modified crane, given Mr Smith's evidence as to the instruction he received from Mr Hicks, the crane's former operator. That was the only information he ever received. The original operator's manual was not modified to reflect the modifications made to the crane. Whatever information was provided to Brambles, the information it conveyed to Mr Smith was inadequate and he received no more from Gillespies. 63Brambles did not reveal to Gillespies that it had the crane modified by Baden. On Mr Gillespie's evidence, had this been revealed, he would have made enquiries of Liebherr, as to what had been modified. His evidence was that the only information that Brambles provided about the crane was the operator's manual which went with the machine. That document gave no relevant information about the operation of the switch, or that safe operation of the crane depended on it being activated, before the crane was driven. 64The crane had a light in the cabin, which flashed for 30 seconds when the switch activated. It was apparent that light was not capable of providing any warning or reminder to a driver who had overlooked activating the switch, when driving off. There was no warning if activating the switch was overlooked, even though activating the switch was an essential step to be taken before the crane was driven, if catastrophic damage to the crane was to be avoided. Nor was this information provided in the operator's manual. 65The result was that Mr Smith never had the information he needed to know, in order to be able to operate this crane safely, either while employed by Brambles or Gillespies. He certainly had no information as to the risk created by the failure to activate the switch, or the need to check for damage, if it was overlooked. 66It is against this evidence that the expert evidence which was led must be considered.

The expert evidence 67In November 2010, the parties were directed to file outstanding expert evidence and to ensure that the experts, in their respective areas of expertise, conferred and provided a joint report on matters agreed and disagreed, setting out reasons for any disagreement by 25 February 2011. The parties did not comply with this direction. 68At the hearing it became apparent that there were seven experts who had provided reports, with expertise in essentially two areas, engineering and ergonomics. Six of the experts had met, but no joint report identifying what was agreed and disagreed was produced. Instead, the experts were asked to answer two sets of questions, one set proposed for Mr Smith and the other for Baden. 69When the hearing commenced, I directed that the remaining expert should be asked to indicate his view on the conclusions reached by the other experts, on the questions which the parties had posed and that an agenda for the concurrent evidence be developed. Eventually, the experts were not required and the expert reports commissioned for Mr Smith were not tendered. What was tendered for Mr Smith was a part of the joint report, namely: " Question 1 : Assume the dolly switch is in the off position when a driver comes to transport the crane in dolly mode to a worksite. Is the correct practice for the driver to: a) Switch the engine of the vehicle on; b) Move three levers to dolly operation mode; c) Turn the dolly switch on which causes the dolly witch(sic) to start flashing; d) Wait until the dolly switch stops flashing' e) Not(sic) driver the crane until the dolly switch light ceases flashing? Joint response of all experts : Yes, this is an acceptable sequence however the items a) and b) reversed, this would also be an acceptable sequence. Question 2 : What is the period of time the dolly switch flashes as contemplated in paragraph 1d)? Joint response of all experts : The experts believe that this would be in the order of 30 seconds or so. This is indicated in the WorkCover NSW Inspector's Summary at Paragraph 23. Question 3 : Assume the dolly switch was in the on position when a driver comes to transport the crane in dolly mode to a worksite. Is it correct that when the driver switches the engine of the vehicle on, the dolly switch light will commence flashing? Response of RC, PB, RF, JH, GWi : Yes Response of GWa: It seems likely that the dolly switch would flash when the engine is turned on but I do not know if that is what actually occurs/occurred." 70Finally, however, the response to question 3 in the joint report was not relied on by the parties, because it became common ground that when Mr Smith drove off in the crane, the light in the cabin did not flash, because the switch was not activated. Thus he had no warning that he had forgotten to activate the switch. 71From the parties' submissions, it became apparent that while a large degree of common ground had been found by the experts in relation to what had caused the crane to collapse, which I have already dealt with, they had differing opinions on other matters. The joint report noted that the experts had not been provided with a set of assumed facts and assumptions. This came to be of some relevance. 72It should also be observed that the course adopted for Mr Smith in relation to the expert evidence carried with it the obvious difficulty that there was no evidence led as to the experience or qualifications of the experts he had engaged and thus no basis upon which it could be concluded that their opinions rested on their specialised knowledge. That they had the relevant expertise was not in issue. I am satisfied, given the course adopted by the defendants and the conclusions I have reached, that this finally has not resulted in any practical difficulty. 73Despite the course taken for Mr Smith, the defendants tendered various of their experts' reports. They were received over certain objections, while other objections were resolved. I received the reports on the basis discussed in Rhoden v Wingate [2002] NSWCA 165, where it was observed at [86]: "When assessing the admissibility of expert opinions, it is not the case that an opinion is only admissible if at the close of the case of the party relying on it the evidence establishes each of the assumptions on which it is based on the balance of probabilities. The primary evidence relating to those assumptions might be controversial. Which parts of the primary evidence are to be accepted, and what the correct conclusions from the primary evidence are, are matters for the trier of fact at the end of the trial. The opinion evidence may be admitted if there is evidence which, if accepted, is capable of establishing the truth of the assumptions. On the appeal the defendant put no submission suggesting that the test was more onerous for the plaintiff in this case. For present purposes let it be assumed that it is not less onerous." 74Since the hearing, the High Court has given judgment in Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 277 ALR 611, where somewhat differing views, as to how the receipt of challenged expert evidence should be dealt with, were expressed. 75In this case there was no issue as to the expertise of those experts whose reports were tendered, or that their opinions rested on their specialised knowledge. Various assumptions on which their opinions rested, were, however, not finally dealt with in the evidence which the parties called. For example, Mr Williams, Baden's expert, made reference in his report to Baden having engaged a Liebherr employee to carry out work on the crane at the time that it was modified and then having provided particular training to Brambles' staff. No evidence was called about these matters. 76The result was that certain opinions which were expressed by the defendants' experts thus rested on assumptions which were not established. Clearly, to this extent, those opinions can be given no weight. Strictly, as discussed in Dasreef Pty Ltd, such aspects of the experts' evidence is not admissible. Indeed, on the approach of Heydon J, they ought not to have been tendered by the defendants, without an undertaking being given that they would lead evidence to support the assumptions on which the opinions rested in their case (see his Honour's observations at [66] to [90]). 77Given the conclusions which I have reached about the experts' evidence, I do not propose, at this stage, to further identify those parts of the reports which were not strictly admissible. Where the opinions rested on assumptions not established on the evidence, I have given them no weight. 78There were, however, aspects of the reports which do bear on the issues which I have to resolve, which it is necessary to deal with. 79Brambles' engineering expert, Mr Frost, responded to a number of questions. He was asked whether in his opinion, the dolly was constructed in accordance with Liebherr's specifications. There was a drawing attached to his report, but the specifications are not in evidence. In any event, Mr Frost did not answer the question posed, but instead referred to his opinion as to the cause of the accident and observations made in his earlier report. That answer shed some light on the nature of the risk here in question, about which Mr Smith received neither warning nor instruction. The views Mr Frost expressed included that: "if the crane travels on the dolly and negotiates curves in the road with the slewing ring locked, the failure of the two subject pins is virtually assured to occur completely at the first more-than-very -slight curve which the crane has to negotiate as it is being driven in this configuration" 80Mr Frost's view was that once the rods have been sheared off: "the bayonet connector which secures the crane superstructure to the crane base is no longer locked in to its engage position. In my opinion it is then inevitable that the normal slewing motions which the crane is required to perform it setting up at a new work site, or in actual use at a work site, will quite quickly result in the bayonet connector rotating out of its engaged positions and becoming disengaged...The disengaging of the bayonet connector will inevitably result in the crane superstructure falling off the crane base and toppling over;" 81The obvious nature of the risk of injury which arises from such a collapse of a crane of this size, is entirely apparent. 82Question 4 asked of Mr Frost was: "Whether the material provided by Brambles to Gillespie, specifically the operator's manual, either with or without document "6.06 - Driving with a dolly" would have adequately informed Gillespie's crane operators in the use of the crane." 83In answering this question, Mr Frost referred to document 6.06, which is not in evidence. An extract from that document was, however, an appendix to his report. It outlines a number of steps to be taken before the crane is driven off. They include 'actuate the switch (120), the warning light (128) blinks'. The document also contains a note and a caution: "Note: Warning light (128)

The analogies drawn with a car 104It is convenient to say something more at this stage about the analogies variously drawn with cars, which some of the defendants' experts drew in explaining their opinions, as did Mr Gillespie and which were the subject of competing submissions. That the analogy was apt, was not accepted by all of the defendants. Gillespies and Brambles embraced it, but Baden did not. In my view the analogy is an apt one in this case. 105The difference in approach to this analogy reflected competing views as to various issues, including in relation to the duty to warn. As discussed by Kirby J in Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460, there are many situations where there is a duty to warn: "[128] ... In a sense, the greater the risk, even if obvious, the greater may be the obligation of the party in control of it to warn others about it. Take the occupier with a deep hole in the middle of the path that in darkness could become a great danger[108]. Take employers who must warn employees of risks, taking into account possibilities of "inadvertence or carelessness" on the part of the employee[109]. Or take the manufacturer of cigarettes. Apart from any statutory obligations that might apply, it could not seriously be suggested that such a manufacturer was relieved of the duty to warn because the risk of cigarettes to health is now "obvious". Warnings are sometimes required by those in control of situations to alert those who are inattentive, distracted or unlikely in the circumstances to consider the risk, although objectively, and with hindsight, it is "obvious". The duty to warn depends on the circumstances of the case, not just a suggested lack of "obviousness" of the risk." 106It is a matter of common experience that a car has various features, such as a handbrake, which a driver must operate, but which on occasions are inadvertently overlooked. It is also a commonplace experience that the failure to release a handbrake soon becomes apparent to the driver from the way in which the car operates with the handbrake on. In the case of this crane after Baden's modification, a failure to activate the dolly switch, in order to release the brake was also soon apparent, once it was driven off. The difference, however, is that in the case of the car, it is entirely unlikely that catastrophic damage can be caused, which makes it unsafe to operate the car further, if releasing the handbrake is forgotten when the car is driven a short distance. 107In the case of this crane, if the switch was not activated, so as to release the brake, even if driven for a very short distance, when the crane was turned even as little as 1.5 degrees to the right, the dowel rods would shear. On the expert evidence, that would inevitably result in a catastrophic collapse of the crane during set up, on this occasion, while lifting a 65 tonne counterweight. 108It seems to me unarguable that if a car was modified so as to introduce a feature like the dolly switch introduced into this crane, there would be a duty imposed on whoever had made the modification, upon the owner and any employer who required an employee to drive that car, to warn of two things. Firstly, of the serious risk of catastrophic damage to the car arising from the inadvertent failure to activate the switch, before driving the car. Secondly, of the need to ensure that such damage had not resulted, if inadvertently, the switch had not been engaged, before the car is further used. 109For Brambles it was argued that a similar feature of a car was a seatbelt. In my view that may not be accepted. Failure to wear a seatbelt, even inadvertently, could no doubt put an occupant at risk of serious injury, if an accident occurred. Absent an accident, it could not, however, lead to catastrophic damage to the car and resulting injury to the occupant, if the car was driven without accident. It follows that the comparison between a seatbelt and the dolly switch, is not an apt one. 110Given the nature of the modifications made to this crane and the serious risk which they created, it seems to me that a duty to warn operators of the crane of the risk arising from a failure to activate the dolly switch, before the crane was driven, arose for Baden and also for both Brambles and Gillespies. 111The defendants each resisted the case brought against them on the basis that they had no such duty, because they were not aware of the feature of the crane which caused it to collapse. For reasons which I will explain, I am not able to accept the cases which they so advanced.

The case against Baden 112In Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330, Gummow J observed at [18]: "... First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt [(1980) 146 CLR 40 at 47-48.]. " 113In the cases brought against Brambles and Baden the Civil Liability Act applies. Sections 5B and 5C provide: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." 114It has been accepted that the matters set out in s 5B(2) of the Civil Liability Act are, in substance, a reiteration of Mason J's observations in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (see Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113; (2010) 267 ALR 752 at [82] - [85]). Mason J observed (at 47 - 48): "[T]he 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." 115In summary, in my assessment, Mr Smith, as a crane operator, has established that Baden owed him a duty to exercise reasonable care to warn of the risk of collapse which its modifications of the crane had created, so that he would not be exposed to an unreasonable risk of injury. 116Given the risk of cata strophic damage to the crane which Baden had created by its modification, in the event of any failure to activate the dolly switch before the crane was driven and the serious risk of injury which would result to operators and those in the vicinity of the crane, if it collapsed, there can, in my view, be no question about the duty of care which arose and the foreseeability of the risk in question, in the s 5B(1)(a) sense. The magnitude of the risk of injury in question for an operator, or indeed anyone in the vicinity of the collapsing crane, required a reasonable person placed in Baden's position to take precautions to guard against the risk materialising. That the duty was breached, with the result, Mr Smith's injury, has also been established. 117The evidence showed there were various precautions which a reasonable person in Baden's position could have taken in the circumstances. They included p roviding relevant information about the modification made to the crane and the risks thereby created to Brambles and operators of the machine. The obvious and unquestionably available means of doing this, which would have addressed the risk which had been created, was by amendment of the crane's operator's manual. Thereby the necessary information could have been conveyed, to all who required it, including later purchases such as, by Gillespies. There were other simple and inexpensive steps which were later taken, which were other ways in which Baden's duty could have been met. They included the white line painted on the boom, which indicated at a glance if the brake had been released and the installation of various safety features in the crane. Such steps were not burdensome, but still they were not taken. Had they been, the accident would not have occurred. The duty of care 118In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 276 ALR 375, French CJ and Gummow J recently emphasised the need to first consider the nature and scope of the duty of care in question (see at [17] - [22]). 119The duty which Baden owed was argued for Mr Smith to rest on first principles. Just as in Donoghue v Stevenson [1932] AC 562, a manufacturer of a bottle of ginger beer owed a duty to somebody who might purchase the bottle from a retailer, Baden, who modified the crane to achieve Brambles' purpose, owed a duty of care to operators of the crane such as Mr Smith. It had undertaken modifications to the crane, which had not failed mechanically, but which had the result that they introduced a grave risk, namely, that a failure to activate the dolly switch to release the brake before the crane was driven, could result in damage to the rods, which would lead to catastrophic failure of the machine when operated. In those circumstances, Baden had a duty to alert operators of the crane to that possibility, the risk not otherwise being apparent. It had failed in that duty, having not even modified the crane's operator's manual, to reflect what it had done to the machine. 120Mr Smith argued that any entity which performs work of the kind which Baden had performed by way of modification to the machine, had the duties of a manufacturer, even if the modifications were carried out in accordance with someone else's design. The only evidence as to what Liebherr had specified, was a letter reproduced in a statement made to the WorkCover Inspector. The blank assertion there made could not establish that what Baden had done, was in fact in accordance with Liebherr's specifications. 121The operator's manual, which formed part of the crane, was not modified to reflect the modifications which Baden had made. No steps were taken to amend the manual to include any reference to driving with the dolly. There was a document shown to Mr Smith, which had been referred to in the WorkCover report. Mr Smith said he had never seen it before and it was not tendered. In the circumstances it would be inferred that the modifications had not been carried out in accordance with Liebherr's specification. 122Baden's case was that it owed Mr Smith no duty of care at all in relation to the risk created by the modifications it had made to the machine. It had acted reasonably in going to the manufacturer, Liebherr, for advice in relation to the modification Brambles wanted to have made. It had undertaken the modifications in accordance with its instructions, it being a world class manufacturer, on Mr Gillespie's evidence. If there was any negligence, it was in Liebherr's design. Its contract with Liebherr required it to maintain and repair using Liebherr parts. There were only 10 of these cranes in the world and the correspondence showed that after the accident, everyone looked to Liebherr, not it. 123Baden also argued that it had expertise in repair, but it was not the manufacturer of the crane and had no duties analogous to those of a manufacturer. It stood between the position of manufacturers on the one hand and repairers on the other. There was no authority which had considered a circumstance such as that in which it found itself. Baden accepted that it had duties like those of a mechanic, who owed duties to those who might drive a car which the mechanic had repaired. What also had to be considered, however, was that it was not asserted that the work which it had performed, had failed. 124Baden's case was that in performing its work it had adhered to Liebherr's specifications and had not understood the risk which the modifications it had made gave rise to. There was no evidence that Baden knew or ought to have known that if the dolly switch was not turned on and the driver drove off and turned a corner, the locking pins would snap. The negligence alleged against it was that of omission, namely failing to provide a relevant manual for the new dolly operation, failing to provide adequate training and failing to take steps later taken, after the accident, in accordance with the advice then given by Liebherr. That case was not established by the evidence. 125What Baden ought to have known at the time of the accident had to be considered in two ways. On what was held in McPherson's Ltd v Eaton [2005] NSWCA 435; (2005) 65 NSWLR 187, Mr Smith had to prove that the facts relied on were known. Absent such proof, he had to establish that it ought to have known of those facts. There was not 'one single fact' which established that having undertaken the modification work, Baden was aware of the risk of the dowel rods shearing. 126As to the legal test, the assessment of breach depended on the identification of the relevant risk of injury, in this case, that if the switch were not activated, the locking pins would snap. That was to be determined on the basis of what a reasonable person might know, given the facts. Reliance was placed on what was observed in McPherson's Ltd at [77] - [82]: "77 In Lanza v Codemo (at [171]), Wood CJ at CL accepted that the mere fact of entry into a contract for the sale of goods did not necessarily establish a duty of care. His Honour relied on Laundess , S W Cavanagh and C S Phegan, Product Liability in Australia (1983) Sydney, Butterworths, at 510, and J G Fleming, The Law of Torts 9th ed (1998) Sydney, Law Book Co, at 457 for this proposition. His Honour went on to say (at [171]): "[171]... The existence of the duty depends upon the nature of the goods sold, the risk involved and the extent to which that risk was known to, or should have reasonably been known to the supplier." 78 In Elliott v Bali Bungy Company Young CJ in Eq held that the general duty of retail dealers was to warn of dangers of which they knew or had reason to know but not of which they "should have known". As I understand his Honour, "should have known" in this context means duty- bound to know. His Honour referred to a number of text books to this effect. To those to which his Honour referred I would add Clerk & Lindsell on Torts, 18th Ed 531 (at para 9-12) where the learned authors say that retailers may be liable in tort "if they sell goods with reason to know they are likely to be used to harm others". See also the reporter's notes to paragraph 401 of the Restatement of Law of Torts (2nd Ed). 79 In Graham Barclay Oysters Pty Ltd v Ryan the distributors grew and harvested the oysters (that being the additional factor). 80 In Dovuro Pty Limited v Wilkins the distributor also produced the canola seed. 81 We were not referred to any other case in Australia or England, nor have I been able to find one, where a duty of care has been imposed on a retailer merely because a relationship of vendor and purchaser, or vendor and end-consumer, existed. 82 In my opinion the relationship of vendor and purchaser, or vendor and end-consumer, does not automatically give rise to a duty of care. Such relationships do not fall within the familiar categories of cases where, by the mere existence of these relationships, a duty of care arises: cf Vairy v Wyong Shire Council [2005] HCA 62 at paras 25-27 per McHugh J. I agree with Mahoney JA's view that "something more" must exist before a duty of care arises." 127I am not able to accept the case so pressed. Here, there was clearly 'some additional factor', which gave rise to the relevant duty. On the evidence, Baden had expertise in repairing and maintaining Liebherr cranes. In accepting Brambles' brief to modify the crane, it had to exercise the standard of reasonable care and skill required of the ordinary skilled person exercising and professing to have the special skill which it possessed (see Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 487). 128Baden's case was that it turned to Liebherr and modified the crane in accordance with its specifications. The evidence did not provide a basis for the submission that Baden had adhered to Liebherr's specifications and in doing so, had not understood the risk which the modifications it made gave rise to. Had such evidence been available, no doubt it would have been led from someone involved in the modification work undertaken, either at Baden or Liebherr. It was argued for Baden that no Jones v Dunkel (1959) 101 CLR 298 point arose against it, unless there was a case to meet on the evidence. In my view there was such a case established, given the modifications made; the failure to modify the operator's manual to reflect those modifications; and the inadequate information given to Mr Smith about safe operation of the modified crane. 129It seems to me unarguable, given the catastrophic damage which resulted from any failure to activate the switch and the absence of any mechanical warnings of the need to release the switch, or of damage caused to the dowel rods, if the switch was not released, that a reasonable person in Baden's position, acting reasonably in the circumstances, would have known that it was not proving adequate information as to the modifications it had made, or what safe operation of the machine required, Given the reasonable foreseeability of the risks created by unsafe operation of the machine, had Baden acted reasonably, it would have supplied Brambles, other owners of the crane and operators like Mr Smith, information about the modifications and what safe operation of the crane required. 130In evidence was the correspondence between Baden and Liebherr and the documents annexed to experts' reports, I earlier referred to. They showed that after the accident, Liebherr's advice was that the crane was safe to operate 'providing that the operator adheres to the instruction in the operator's manual.' There were no relevant instructions in the original crane operator's manual. Liebherr was presumably referring to the document, part of which was annexed to Mr Frost's report. On the evidence, inadequate as that information was, it was not supplied by Baden. 131Mr Smith's evidence was that he used the operator's manual as a reference document. He had never read it in its entirety. There was no suggestion that Mr Hicks had referred him to it. Had Mr Hicks or Mr Smith looked to the original manual provided in the crane, to understand the operation of the dolly switch, it could not have assisted them. To the contrary, it would have told them the switch had to do with air-conditioning. 132It follows that it is not surprising that when instructed in the operation of the crane by Mr Hicks, Mr Smith was not referred to the manual in relation to the dolly switch operation. The manual did not deal with that switch and could have been of no assistance to anyone who had read it. The instruction he received gave him no understanding of the operation of the switch or how safe operation of the crane depended entirely on him remembering to activate it, before the crane was driven. 133While Baden did lead expert evidence, as did Brambles, no expert expressed the view that on the information available to Baden, given the nature of the work it had undertaken, that Baden could not have been aware of the risk which resulted from the modification it had made. To the contrary, the expert evidence was that the shearing of the rods caused by the failure to release the brake, was an intended feature, designed to protect the crane from certain damage. 134Baden produced the modification Brambles desired, which permitted the crane to be transported by road, without disassembly. In doing so Baden had a duty to warn of any risks its modifications introduced, particularly of the inordinate risk of the crane collapsing, which had been created by those modifications. That it did not have sufficient information from Liebherr to understand the nature of the risk it had created, was, in my view not established. As discussed in McPhersons Ltd , given the work it undertook, Baden had reason to know of the risk and to warn of its creation. 135Baden had a duty to operators of the modified crane, such as Mr Smith, given the modifications it had undertaken. The operational change which those modifications made to this machine was very significant. Baden accepted that new dangers which had not previously existed were thereby created. I am unable to accept that those dangers were not apparent to Baden, from the nature of the work it had undertaken on the crane. 136Baden plainly knew what modifications it had made and how the crane operated, both beforehand and afterwards. This was a very substantial modification, to a very large, sophisticated and expensive piece of equipment, permitting it to be driven on the road, without being disassembled. Baden must have tested the modifications it had made, in order to ensure that they were operating correctly, on its case as Liebherr had designed, so that it could be safely driven and operated. 137There can be no question that Baden was also aware that the modifications it had made did not include any mechanical warning being given to a driver, that the dolly switch had not been activated, before the crane was driven off. There was also no mechanical warning given when the crane was damaged, if driven without the brake first being released. As a matter of logic, in the absence of such warning, as the experts explained, safe operation of the modified crane depended entirely on operator memory, to ensure that the switch was activated, before the crane was driven; there being no technical reminder to activate the switch. 138Having actual knowledge of the modifications made and how the crane thereafter operated, that a duty fell upon Baden to provide information about what safe operation required and to warn of the reliance being placed on operator memory, for safe operation of the crane, plainly follows. 139What was contained in the existing operator's manual, was inaccurate, once the modifications were made. There it was wrongly identified that the switch was concerned with the operation of air-conditioning. Any document which Baden gave Brambles about the operation of the modified crane, was not tendered. The inference is that no adequate information about the risk which flowed from those modifications was thereby provided, particularly in the case of any failure to activate the dolly switch, if the crane was driven even for a short distance. Even if the amended manual had been provided to Brambles, on the basis of the page annexed to Mr Frost's report, that document did not identify the risk or the consequences of a failure to engage the switch, or the reliance placed on operator memory. 140On the evidence it must have been apparent to Baden that adequate information was necessary to be provided to Brambles and operators of the crane, as to the result of the modifications it had undertaken, in order to ensure the safe operation of the crane. If Baden had any doubt that it fully understood what it had done, by its modification of the machine, it ought to have found out from Liebherr, in order to meet its duty to users of the modified crane, and Brambles. On the evidence such information would have been available. 141Support for the case Baden advanced was also said to be found in Erwin , where it was submitted that the Court of Appeal had taken the view that manufacturers were entitled to assume that their vehicles would be properly maintained. By analogy, it was argued that Liebherr and Baden were entitled to assume that an experienced crane operator would turn on the dolly switch, before driving the crane. I am not able to accept the analogy. 142Erwin was a case where proceedings were brought against the manufacturer of a truck, which the appellant had acquired second hand from a dealer in 1999. It had been manufactured in 1989. When acquired it had travelled over one million kilometres. It crashed in 2002, as the result of the failure of the steering mechanism. The appellant had maintained the truck, but had never undertaken preventative maintenance, nor had anyone else serviced, maintained or inspected the steering mechanism. 143It was concluded that no negligence had been established. The cause of the failure of the mechanism was the result of a later serious mistake made by a specialist dealer in trucks, in adjusting a bolt to the required torque and then the appellant's egregious failure over a period of three and a half years, to undertake basic maintenance in defiance of the manufacturer's direction. It was observed at [111] - [112]: "111 When the warning of McHugh J in Dovuro v Wilkins about the dangers of using hindsight to find negligence is borne in mind, it is difficult to disagree with the primary Judge's assessment that the risk was not shown to be otherwise than insignificant and that the appellant had not established that a reasonable manufacturer/designer in the respondent's position would have taken one or more of the precautions identified by the appellant when designing the steering system for the Truck. Manufacturers are not necessarily entitled to assume that purchasers or users of their products will invariably follow instructions or act in a prudent and sensible manner. But for this failure of the steering system to occur, there had to be two independent and serious departures from the standards of conduct reasonably to be expected by the manufacturer of the Truck. The first was the failure to adjust the pinch bolt to the prescribed torque in 1999. This was an apparently serious mistake committed not by an owner-operator attempting his or her own maintenance, but by a specialist dealer in trucks. The second consisted of the appellant's egregious failure, over a period of three and a half years and hundreds of thousands of kilometres of driving the Truck, to undertake basic maintenance of the steering system in defiance of the manufacturer's directions. 112 In these circumstances, it cannot be said that the primary Judge was wrong in concluding that the respondent did not breach the duty of care it owed to the plaintiff." 144It is apparent that this is an entirely different case. Baden was not entitled to assume that all operators of the crane would invariably follow instructions to activate the switch before the crane was driven, particularly when the operator's manual provided no relevant information about the modifications made to the crane, the risk which they had created, or that safe operation of the crane depended on operator memory. Catastrophic failure of this machine could result from inadvertent failure to release the brake mechanism for even a short distance, at a slight turn. Mr Smith's oversight on the morning of the accident simply cannot be perceived as an 'egregious failure', of the kind dealt with in Erwin. To the contrary, it was an oversight easily made by even a careful experienced operator, one swiftly identified and remedied. Absent any knowledge that catastrophic damage had already occurred to the machine, that the crane was operated without Mr Smith first checking that it had not been damaged, was not failure of a kind with which Erwin was concerned. 145The crane was not a piece of equipment intended to be driven by any operator, like an ordinary person drives a car. It was a highly specialised piece of equipment, which was only intended to be driven and operated by trained crane operators, in order to drive on the road to a job and then to operate it, in order to lift massive weights at building construction sites and other places, throughout industry. The design of the crane was such that a failure to engage the dolly switch before the crane was driven even a short distance, was likely to cause catastrophic failure of the crane when operated. 146Unquestionably, Baden was entitled to assume that Brambles or the owners of the crane would properly maintain the machine and would employ competent, properly trained operators. The problem which emerged with the crane's operation had nothing to do with maintenance, or a failure to employ a competent operator, but with inadequate training of the operators, in part as the result of Baden's failure to warn of the reliance being placed on operator memory, to ensure safe operation of the crane. 147Given the modifications Baden had made, which resulted in safe operation of the machine resting entirely on operator memory, it is unquestionable that adequate information had to be given to operators, to alert them to what safe operation required and the risks which flowed from inadvertent failure to engage the dolly switch. In the absence of any mechanical warning mechanism in the crane, account had to be taken by Baden of the possibility that an operator might inadvertently forget to activate the switch, before the crane was driven. Operators had to be trained to ensure, in that eventuality, that the dowel rods were checked for damage, before operating the machine. 148In the circumstances, Baden could not assume that the crane would never be damaged, as the result of inadvertent failure to activate the switch. There was unquestionably a duty to warn Brambles, other owners of the crane and operators such as Mr Smith of the risk which its modifications had created and to provide adequate information about what safe operation of the modified crane required. Breach 149It was finally conceded for Baden that if the evidence established that it knew, or ought to have known, that if the brake was not released, the rods would shear if the crane was driven, it had to take that into consideration in the steps which it took, given the catastrophic harm which could result. It was argued to be relevant, however, that no evidence had been called, as to what a reasonable repairer in its position would have known about the risk of the dowel rods shearing. The plaintiff bore the onus of proof. 150It was not accepted that as a matter of logic, given the nature of the crane and what the modifications achieved, that it was obvious that the rods would shear, from the force applied to them, if the brake was not released before the crane was driven. The question had to be determined on the basis of what was known before the accident occurred, not with the benefit of hindsight. There was no suggestion that the rods, while thin, were not fit for their intended purpose. They had been tested by WorkCover. Further, the evidence of Mr Williams in his report was that: "Q27 On average, how often did the plaintiff transport the crane between the date in the answer to the above question and the date of the accident? A. The plaintiff was the main driver of the crane from about early 2002 the date of the accident 3 November 2003. He would have driven the crane at least a hundred times. COMMENT. In my opinion any operator who had driven a particular crane at least a hundred times would be extremely familiar with its characteristics and its operation and I would consider and expect him/her to be quite capable of operating it in a proper and safe manner in accordance with the manufacturers instructions." 151Mr Williams assumed that the operator's manual was deficient, but was still of the view that Mr Smith had been given adequate instructions from Mr Hicks. I am unable to accept that opinion, or the submissions advanced for Baden. On the evidence, given the modification work it had undertaken, it seems to me, that a reasonable person in the position of Baden ought to have warned that if the brake was not released, the rods would shear if the crane was driven. At the least, it had to warn that safe operation of the crane depended entirely on operator memory. Baden breached this duty knowing that there was no mechanical warning given with the operation of the crane, of either the need to release the brake, or what would occur if the brake was not released. 152Such information was not provided by the operator's manual being amended, or otherwise. The failure to either provide such information, or some mechanical reminder that the switch had to be engaged before the crane was driven, leads inevitably to the conclusion that Baden breached the duty it owed to Mr Smith. 153As a result of Baden's breach of its duty, the instructions given to Mr Smith in operation of the crane, were entirely inadequate. The instructions were consistent with Baden having failed to provide essential information and warning about the risks it had created when it modified the crane; which ought reasonably to have been provided. Given the work it had undertaken on the crane, in failing to convey the information necessary to ensure safe operation of the modified machine, to Brambles, other owners of the crane and those who had to operate it, Baden breached its duty of care. 154No-one has sought to join Liebherr, an obvious party to the proceedings. Having in mind the correspondence from Liebherr after the accident in relation to the operating instructions it had provided and the evidence that no such instructions were supplied by Baden, that it failed to provide operators with necessary information, must be accepted. The necessary inference from the case Baden advanced, was that it must have tested the modifications it had made, in order to ensure that they had been undertaken in accordance with Liebherr's specifications and that they worked as intended, permitting safe operation of the crane. Baden must have conducted its tests in the context of whatever instructions and information Liebherr had supplied it, however, it called no evidence to explain what it knew about the modifications it had undertaken or the instructions and information it had received. 155There can be no question that it was reasonably foreseeable that a failure to warn of the risks created by the modifications, particularly of the consequences of failing to activate the toggle switch to release the brake, before the crane was driven, might put the operator and others at serious risk of injury. Inadvertent failure to activate the switch could not be excluded, in the absence of any mechanical warning of the need to do so. In that event, absent any information or warning of the need to check that the crane had not been damaged, so that a catastrophic collapse would result, if it was operated, without activating the switch, the risk of serious injury to which operators such as Mr Smith were exposed, was foreseeable and indeed obvious. By failing to provide such information and warning, Baden breached its duty to Mr Smith and the owners of the crane. Causation 156Causation must also be proven by Mr Smith. It is to be considered in light of the provisions of s 5D of the Civil Liability Act , which provides: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability ). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party." 157In Woolworths Ltd v Strong [2010] NSWCA 282 it was observed at [48]: "Now, apart from the "exceptional case" that section 5D(2) recognises, section 5D(1) sets out what must be established to conclude that negligence caused particular harm. That emerges from the words "comprises the following elements" in the chapeau to section 5D(1). "Material contribution", and notions of increase in risk, have no role to play in section 5D(1). It well may be that many actions or omissions that the common law would have recognised as making a material contribution to the harm that a plaintiff suffered will fall within section 5D(1), but that does not alter the fact that the concepts of material contribution and increase in risk have no role to play in deciding whether section 5D(1) is satisfied in any particular case." 158In Zanner v Zanner [2010] NSWCA 343, Allsop P observed at [11]: "The requirement to follow s 5D is clear. What its statutory content is and the extent of any continuity with developing common law concepts awaits judicial elucidation. In Woolworth's Limited v Strong [2010] NSWCA 282 at [48] Campbell JA (with whom Handley AJA and Harrison J agreed) said that s 5D(1) excluded notions of "material contribution" and increase in risk. To the extent that his Honour was referring only to factors or circumstances from which a negative "but for" answer was given, so much is clear. However, the notion of cause at common law can incorporate "materially contributed to" in a way which would satisfy the "but for" test. Some factors which are only contributing factors can give a positive "but for" answer. Both the driver who goes through the red light and the driver with whom he collides who is not paying attention contribute to the accident. If either episode of neglect had not occurred the accident would not have occurred. The facts of Henville v Walker [2001] HCA 52; 206 CLR 459 provide another example. However, material contributions that have been taken to be causes in the past (notwithstanding failure to pass the "but for" test) such as in Bonnington Castings Ltd v Wardlaw [1956] AC 613 are taken up by s 5D(2) which, though referring to "an exceptional case", is to be assessed "in accordance with established principle"." 159The evidence I have referred to does not leave room for doubt that factual causation was established against Baden. It made the modifications which resulted in the risk that the crane would collapse, if driven without the switch first being activated. It did not warn of the risk, or provide information either as to how safe operation of the crane depended on operator memory, that is remembering to activate the switch, before driving the crane; or that failure to do so could result in catastrophic damage to the crane. That risk materialised on the day of the accident. 160It follows that the 'factual causation' discussed in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420 was here established (see at [41] - [57]). On the evidence it was more probable than not, that but for Baden's failures, the crane would not have collapsed as it did on the day of the accident and that Mr Smith would not have been injured. It is also apparent that Baden's failures were ' a necessary condition of the occurrence of the harm' which Mr Smith suffered, in circumstances where it is appropriate for the scope of its liability to extend to the harm it so clearly caused. That harm was entirely foreseeable. The damage to the crane was the direct result of Mr Smith's failure to activate the switch, in circumstances where he had not been given any warning that such a failure, even during the brief period that he drove the crane, would cause this massive crane to collapse without warning, when operated. The circumstances are such that it can only be concluded that a reasonable person in Baden's position, would have given the information and warning necessary about the risks its modification to the machine had created. 161Given the evidence of Mr Smith's capacity, skills and experience as a crane driver and his attitude to safety requirements, about which he was extensively cross-examined, I am satisfied that had Baden supplied the necessary information about the modifications it had made to the crane, what its safe operation required and how operator memory to activate the switch was relied on, to avoid catastrophic damage to the crane, the accident would not have occurred. 162In the circumstances, responsibility for the harm its actions and failures caused Mr Smith, must rest with Baden. It is appropriate for the scope of its liability to extend to the harm it caused by its acts and omissions.

The case against Brambles 163The Trade Practices Act (Cth) claim was not pursued against Brambles and it was accepted that any contractual claim was time barred. The provisions of the Civil Liability Act are again relevant here. 164In summary, in my assessment, Mr Smith has also established that Brambles owed him a duty to exercise reasonable care to warn its employees and other foreseeable operators of the crane of the risk of collapse which the modifications it had Baden make to the crane had created, so that they would not be exposed to an unreasonable risk of injury. The risk was foreseeable and required a reasonable person in Brambles' position to take precautions to guard against the risk materialising. 165That duty was breached, with the result that Brambles, too, caused the injury which Mr Smith suffered, after he took up employment with Gillespies. It, too, had simple means available to it, to address the risk which had been created, by the modification it had Baden make to the crane. Had they been taken, this accident would not have occurred. The duty of care 166Brambles also disputed the existence of any duty of care owed to Mr Smith. While the duty which it owed to Mr Smith, while Brambles employed him, was uncontentious, Brambles denied that it had breached that duty; that this duty persisted after the termination of the employment relationship; or that any other duty arose or continued, when it sold the crane to Gillespies. 167Mr Smith's case was that Brambles breached the duty it owed both while he was its employee and when it transferred its crane operation to Gillespies as a going concern. Its duty was to provide him with adequate information, training and instruction in relation to using the dolly to transport the crane, without the slew brake being damaged. It also had a duty to provide a system that would warn if the brake had not been released as well as a duty to provide a dolly capable of enabling the transport of the crane, that would not subject those who might foreseeably transport it, to an unreasonable risk of injury in relation to uses to which it was reasonably foreseeable that the dolly might be put. 168It was further argued to be reasonably foreseeable to Brambles that:

1. The modified dolly would be used by its employees and by Gillespie employees.
2. The crane structure would collapse if the slew brake was not released.
3. That if not properly instructed and trained, an employee would not activate the switch and if not activated, catastrophic injuries would result to the employee. 169The evidence established a complete failure by Brambles to provide him, or later Gillespies, with useful or worthwhile information about the effects of the modification it had Baden make to the crane; the operation of the toggle switch; or the risks which failure to release the brake by activating the switch before the crane was driven, posed. If Brambles' case was that it was not aware of these things, it ought to have been, given the duty it owed Mr Smith as his employer. 170Having had the crane modified to permit its transportation without disassembly, Brambles ought to have ensured that it supplied information to its crane operators about the operation of the dolly switch, the slew ring brake mechanism and the catastrophic consequences of failing to activate the switch, before driving the crane, sufficient to ensure the safe operation of this crane. It also had a duty to provide that information to Gillespies, when it sold it the crane, in circumstances where it continued to owe Mr Smith a duty of care. 171It was also argued that while no authority could be pointed to, which suggested that a duty which an employer owed an employee, continued after the termination of the employment, there was no legislation or authority which permitted Brambles to avoid the result of the breach of the wider duty which it owed Mr Smith, because the injuries he suffered materialised only after the termination of his employment. 172Brambles' case was that a claim that an employer was forever liable for its failures during the course of employment, was unsupported in law. A duty to a former employee was not owed, 'absent more'. An employer's duty was limited in scope and nature by the terms of the contract of employment. The duty was personal and did not survive the termination of the employment. While Mr Smith's employer, it only had a duty to ensure that he was aware that care needed to be taken, to activate the dolly switch. The fact that there could be inadvertence, was not a basis of any breach of duty. 173Brambles also argued that the claim made against it was novel and would offend the balance discussed in Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [42]: "The argument was conducted upon the basis that it was foreseeable that harm of the kind allegedly suffered by the appellants might result from want of care on the part of those who investigated the possibility that the children had been sexually abused. But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care." 174There was no such duty lying between Mr Smith and Brambles. 175Support for Brambles' case was argued to be found in Mason P's observations in McPherson's Ltd v Eaton at [5]: "Secondly, the issue presents at a time when the recent jurisprudence of the High Court shows that a choice must be made about the very question to be asked. Is there a broadly-stated duty to take reasonable care to avoid foreseeable risk of injury in which the reasonableness of the distributor's conduct is a factual issue dependant on the circumstances? Or is there in this (as in some categories) a more confined duty expressed as having a particular content or scope?" 176It was accepted that in the case of a duty of care which required an employer to avoid employees inhaling asbestos dust during the course of their work, damages would not be evaded because the result of the breach of the duty only materialised after the termination of the employment. A later employer who breached that duty would also be responsible for the injuries it caused. But any analogy sought to be drawn with this type of situation was argued not to be apt, because any breach of Brambles' duty did not result in the injury the subject of the proceedings. It was Gillespies' breach of its duty as an employer, which caused the injury about which complaint was made by Mr Smith. 177It was also argued that Brambles' duties as the seller of the crane to Gillespies were contractual and gave rise to no duty to it or Mr Smith. Contractual warranties had been agreed, which were relied on. Gillespies had conducted its own due diligence. Brambles did not warrant the competence or training of Mr Smith. Nor did it owe Gillespies or its employees any other duty of care. It was not the supplier of the crane. Even if it did owe such a duty, it was entitled to rely on Baden, in respect of the modifications (see Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161 at [12]). Baden was an independent contractor, for whom Brambles was not vicariously liable. 178In my assessment there can be no question of the nature of the uncontested duty which Brambles owed Mr Smith, while he was its employee. T hat was a stringent duty which obliged it to provide a safe system of work (see Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 ; Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 ; Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313 and Scott v Davis [2000] HCA 52; (2000) 204 CLR 333 at [245] - [249], [307] - [308] and [353]). 179As discussed in TNT Australia Pty Ltd v Christie; Crown Equipment Pty Ltd v Christie; Manpower Services (Aust) Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 at [49] - [50], while that duty was not absolute and an employer is not an insurer of workplace safety, the duty also extends to the safety of plant. In that regard, the duty requires the employer to take reasonable steps to provide the employee with equipment which is safe, for the purpose of carrying out the tasks of the employment (see at [175]). 180After Brambles had the crane modified, the danger which resulted from any failure to activate the dolly switch, was extreme. That has to be considered in a context where it was obvious, even beforehand, given the size and nature of this crane, that any unsafe operation of the machine could give rise to considerable danger, both to an operator and those within the vicinity of the crane, which operated at different sites, throughout industry. 181In those circumstances, that Brambles had a duty to ensure that it thoroughly understood the operation of the crane it had modified, so that it could ensure that the system under which those it employed operated the modified crane, was safe, cannot be questioned. It also knew that the operator's manual was an intrinsic part of the crane, but it did not ensure that it was modified, so as to reflect the modifications Baden had made to the crane itself and how they impacted its safe operation. Nor did it ensure that when it employed Mr Smith to operate the crane, that he was given adequate information, instruction and warning in relation to the modifications made to the crane; what safe operation of the crane required; or how the system of work relied on his memory, to avoid catastrophic damage to the crane. 182Necessary information was available to it from Baden, or indeed Liebherr. It could have easily ensured that the operator's manual was amended, to ensure that the required information was there provided to operators like Mr Smith. There were other simple and available steps which could have been taken, to address the risk the modifications created, as I have already discussed. That it failed to make necessary enquiries, to ensure that it understood what safe operation of the machine required, cannot relieve it of its duty. 183Brambles later sold the crane and its crane business as a going concern, on the understanding that Mr Smith would go to Gillespies to continue his work as the crane's operator. It seems to me that it then still owed a duty to exercise reasonable care to warn Gillespies and foreseeable operators of the crane, including Mr Smith, of the risk of collapse which the modifications it had Baden make to the crane, had created. That was necessary to ensure that the crane's operators would not be exposed to an unreasonable risk of injury. 184To resist this conclusion Brambles also relied on McPherson's Ltd v Eaton. That was a case concerned with the duty owed by a non-manufacturing distributor of goods, which was found to have a duty of care, but in the circumstances not to have breached it. It was there concluded that a non-manufacturing distributor of goods, who is ignorant of a dangerous defect, does not owe the same duty of care as a manufacturer. The meaning of the phrase 'ought to know', was there considered by Ipp JA and Mason P. At [92] Ipp JA, with whom Hodgson JA agreed, observed that this concept was of particular importance, 'in situations where a pre-existing relationship or circumstances that give rise to a duty do not exist'. That, of course was not this case, given that Brambles was formerly Mr Smith's employer. 185Ipp J observed at [92] - [96]: " The criteria governing the inquiry whether a person "ought to know" 92 The phrase "ought to know" is commonplace in our law, particularly in the law relating to negligence; it is often used to impute knowledge to a tortfeasor. Reasonable foreseeability lies at the root of the concept of "ought to know" and is of particular importance in situations where a pre-existing relationship or circumstances that automatically give rise to a duty do not exist. This was emphasised in Tame v New South Wales (2002) 211 CLR 317 at 355 [103] [PDF], where McHugh J said: "[103]In dealing with the duty issue, however, it is often necessary to consider the issue of reasonable foresight as a separate issue. In the duty situation, the issue is whether the law imposes or o ught to impose an obligation on the defendant to avoid conduct that exposes persons in the position of the plaintiff to unreasonable risks of harm. Absent a pre-existing relationship or circumstances that automatically give rise to a duty - such as lawful entry onto land - reasonable foreseeability of harm to others is a necessary condition of duty." 93 In my opinion, "ought to know," means the knowledge that a person, acting reasonably in all the circumstances of the case, should know. There is ample authority to this effect. But there are several matters that need to be noticed when regard is had to "all the circumstances of the case". 94 Firstly, when the imputed knowledge of the defendant (the "ought to know" issue) is being considered for the purposes of ascertaining whether the defendant owes a duty of care, the "circumstances of the case" do not include an assumed duty of care; otherwise the reasoning would be circular. Although the word "ought" is the language of duty, the assumption of a duty of care forms no part of the inquiry at the stage the duty of care is being determined. The imputed knowledge depends on the existence of proved facts that call for the requisite inference to be drawn. 95 Secondly, a finding that a defendant ought to know of the risk of particular harm may lead to the existence of duties to take reasonable care, to investigate, to do research or to warn. Such a finding, and the existence of such duties, are based to a significant degree, on reasonable foreseeability and depend largely on whether it is reasonably foreseeable that the risk that should be investigated, researched, or warned against might materialise. Reasonable foreseeability, for example, underlies the duty to investigate before a car dealer sells a second-hand vehicle, the duty to research before a manufacturer and importer of industrial chemicals sells a new untested chemical, and the duty to warn when a retailer sells an article that it knows can be dangerous if used in a particular way or by a particular class of person. 96 Thirdly, when determining reasonable foreseeability, the standard must be that of a reasonable retailer in the position of McPherson's. In Dovuro Hayne and Callinan JJ pointed out at [162] 369 that the primary judge had concluded that Dovuro had acted unreasonably. One of the steps critical to the judge's conclusion was that it should have been "readily evident, especially to a person trained in agricultural science" that it would be impossible for a regulatory authority to anticipate by declaration every exotic weed that might enter the state and threaten agriculture. Their Honours said (at [163], 369): "As Finkelstein J rightly pointed out, the usual knowledge of an agricultural scientist cannot set the standard of care to be observed by a seed merchant. Further, common knowledge of the kind to which the primary judge referred is of no significance unless there is a basis for concluding that the reasonable person in Dovuro's position not only ought reasonably to have known, or to have found out, whether any of the three plants already grew in the area concerned, but also knew, or ought reasonably to have known that, if the plants were exotic, they would or may later be declared to be prohibited plants. The Wilkin's case depended upon them demonstrating that Dovuro knew, or ought reasonably to have known, that importing and selling the seed for a distribution in Western Australia exposed the Wilkins, and other purchasers of the Karoo seed, to a risk of the injury that would follow if the three plants whose seeds were found in what was distributed were declared to be prohibited." Gummow J adopted a similar approach (see at [64], 338)." 186Mason P observed at [23] - [24]: "23 The difference between "ought to know" and "has reason to know" is more than semantic in the present context. It is the law's endeavour to identify the limited content/scope/extent of the relevant duty in circumstances like the present. The formulation "has reason to know" appears to capture the appropriate scope of duty, at least outside the situation of the distributor whose own activities have contributed to the harmful potential of the product (see generally Restatement of the Law, Torts 2d at 401; Elliott v Bail Bungy Co [2002] NSWSC 906 (at [24]-[28]); Fleming , op cit, p647 n148; Christians v Homestake Enterprises Ltd 303 NW 2d 608). The distinction is explained in Restatement 2d (at 401): "The words "reason to know" ... are used to denote the fact that the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists or that such person would govern his conduct upon the assumption that such fact exists. The words "reason to know" do not impose any duty to ascertain unknown facts, and are to be distinguished from the words "should know"." 24 This formulation of the content of the duty of reasonable care is preferable to describing it in terms of a "duty to warn". For some situations, warning would be an inadequate response. Reasonable care with reference to some dangers would require the product to be taken off the shelves." 187It followed, it was argued in this case, that it was critical to determine what Brambles knew of the defect in the crane, if there was one. The scope of the duty was defined by that knowledge. The onus fell on Mr Smith to establish such knowledge, the claimed duty and the breach. On the evidence, the catastrophic effect of failing to apply the brake was not shown to have been known to Brambles. 188It would also be considered, it was argued by Brambles, that there was no evidence that it knew that on earlier occasions there had been any inadvertent failure to operate the switch, or what the consequence of that occurring would be. There had been no attempt to establish what its trainers knew, that they had failed to pass anything on, and no attempt to establish that it was in possession of relevant information. The operator's manual did not contain such information. 189In a non-employer situation, a party is entitled to assume that persons will act reasonably and Brambles was thus entitled to assume that Gillespies, who had a duty of care to its employees, would discharge it. To impose a duty of care on Brambles, in respect of Gillespies' employees, would create a lack of legal coherence. The issue to be determined was formulated to be: "... whether we should have known the consequences of the failure to do what we believe a reasonable man would do. That is the other part of the equation, your Honour, the thing that Mr Curtin has said and we adopt. Namely, in a non employer situation, a party is entitled to assume that persons will act reasonably. That is for better or worse the High Court's jurisprudence prudence in Stead and Others. That is the basis upon which duties of care are controlled. The issue here is whether we as an employer believed that experienced crane drivers would operate the switches as they had been trained to do. That is the issue, not whether or not the employee should have known all the consequences of any failure." 190The matter must be resolved, it seems to me, on this basis. While it employed Mr Smith, Brambles owed Mr Smith a non-delegable duty of care as his employer. As discussed in Kondis , by Mason J at 687-8: "The foreseeability of injury is not in itself enough to generate the special duty. Before the special duty arises there must exist in the relationship between the parties an element of the kind already discussed. That such an element exists in the relationship of employment is beyond serious challenge. The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences." 191Thus, as discussed in TNT Australia Pty Ltd at [60] - [62] by Mason P, while Brambles would not be responsible for some latent or inherent defect in the crane, or even a defect which resulted from the modification work which Baden had done, the duty of care which Brambles owed Mr Smith extended to the exercise of reasonable care in relation to the modifications it had Baden make to the crane. 192There was here no suggestion of any defect in the modification work undertaken by Baden, but rather a defect in the system of work implemented by Brambles in respect of the operation of the modified crane. Operators were given no necessary warning, information or training about the modifications made to the crane, or about the serious risks resulting from the failure to engage the dolly switch, before the crane was driven. Engaging Baden to effect the modification which it wanted, did not relieve Brambles of legal responsibility for the operation of the modified crane and the system of work under which Mr Smith had to operate it. Brambles' duty of care could not be fulfilled on the basis that it could reasonably regard Baden as being a reputable and skilful organisation capable of fulfilling its duty of care to operators of the crane. Brambles had to ensure that its own duty was fulfilled. 193On the evidence, Brambles did not take the necessary steps, so far as Mr Smith was concerned while he was employed, to ensure its duty to him was met (see the discussion in TNT Australia Pty Ltd at [175] per Foster AJA). It knew that the operator's manual had not been modified to reflect what Baden had done and that it did not reveal what safe operation of the crane required. The instructions it had Mr Hicks give Mr Smith were entirely inadequate. Thereby, Mr Smith was given no understanding of what the function of the dolly switch was; how safe operation of the crane depended on him to activate it; and of the risk of damage to the crane, if it was not activated. These were things which Brambles would have known, had it acted reasonably in the circumstances. It was reasonably foreseeable that unsafe operation of this crane, would give rise to serious risks to safety. In the circumstances, it had to take steps to ensure that it understood what safe operation of the crane, after it was modified, required. That required it to take steps to ensure that it understood the consequences of the modification of the crane, for its safe operation and that it trained its employees accordingly. That information could have been obtained from Baden and Liebherr. In failing to do what was necessary to ensure the system under which the crane operated was safe, it breached its duty to Mr Smith, while he was an employee. 194When Brambles sold its crane operation as a going concern, Mr Smith's employment came to an end, as did the duty which it owed him as an employee. I am unable to accept the view argued for Mr Smith, that this duty continued thereafter, arising as it did out of the contractual employment relationship which then came to an end. However, I also do not accept that thereafter, Brambles owed Mr Smith no duty at all and that it had no responsibility in respect of the injuries which he later suffered, when the crane collapsed. On the evidence, its negligence contributed to that outcome. 195Brambles not only sold its crane operation as a going concern to Gillespies, it also sold the crane, on the understanding that Mr Smith would take up employment with Gillespies, in order to continue operating the crane. The mere fact of the sale of the crane was not a sufficient basis on which to conclude that a duty of care arose, either to the purchaser or operators of the crane ( see Laundess v Laundess (1994) Aust Torts Reports 81-316; McPherson v Eaton and J & V Pesl v Ray Smith Tractors [2007] NSWCA 74). Something more had to be established. As Wood CJ at CL discussed in Lanza v Codemo [2001] NSWSC 845 at [171]: "... the existence of the duty depends upon the nature of the goods sold, the risk involved and the extent to which that risk was known to, or should have reasonably been known, to the supplier ... ." 196In this case the conclusion that a duty arose on the sale of the crane lies in the evidence of what Brambles sold to Gillespies and what it then knew and reasonably ought to have known about the modifications it had Baden make to the crane and what its safe operation thereafter required. 197Brambles sold this crane after it had been modified, without having the operator's manual modified, to reveal the modifications made; how they affected the operation of the machine; or the risk to safe operation, which the modifications gave rise to. These were all matters either within its knowledge, or matters about which it ought to have known, particularly given the duties it owed its employees, while it operated the crane. In my view, the evidence well established circumstances where it must be concluded that Brambles also owed a duty of care to both Gillespies and future operators of the crane, such as Mr Smith, to provide them with information and warnings about those matters independent of its contractual obligations to Gillespies. 198In the circumstances, it seems to me, that a reasonable vendor of a crane such as this, acting reasonably in the circumstances, ought to have known that it was not providing adequate information as to the modification it had made to the machine, or what safe operation of the modified crane required. Given the nature of the crane, what Brambles knew as to how it had been modified and the state of the operator's manual, a reasonable vendor selling the crane as a part of the sale of its business as a going concern, would have warned the purchaser and future operators of the crane of the modifications, of the dangers inherent in the crane as a result, and the deficiencies of the operator's manual which it was providing with the crane. Given the reasonable foreseeability of the risks created from unsafe operation of the crane, had Brambles acted reasonably it would have, at the least, provided warning as to the modifications made to the crane and the fact that the operator's manual had not reflected that work, or its consequences, if its duty was to be met. 199This was not a case of a notorious danger, or even a thing known to be dangerous in itself, so that the risk in question would have been obvious to later operators or to Gillespies (see Imperial Furniture Pty Ltd v Automatic Fire Sprinklers Pty Ltd [1967] 1 NSWR 29 at 38 - 39). This crane was unique, as the result of the modifications Brambles had engaged Baden to make. Brambles knew thereby that the crane could be transported without disassembly. It also knew that it had not taken any steps to ensure that either the fact of, or the consequences flowing from the modifications, so far as the safe operation of the crane was concerned were advised to the purchaser. Brambles was unquestionably aware that the operator's manual provided with the crane, did not reveal that modifications had been made to the crane and that it did not shed any light on how the crane could be safely operated, as modified. Even so, it provided Gillespies with no information about those matters. 200Mr Smith ceased his employment with Brambles and took up employment with Gillespies, as a part of the sale process. Thereafter he was not a person with whom Brambles any longer had contractual relations. Nevertheless, they did not thereupon become strangers. To the contrary, they remained in relevant proximity with each other. 201It was well known to Brambles that Gillespies would continue employing Mr Smith to operate the crane. That was a part of its deal with Gillespies. In those circumstances, given its actual knowledge, particularly as to the inadequacy of the operator's manual provided to Gillespies in respect of the modified crane's operation and having in mind the inadequate training which it had earlier provided Mr Smith, that it had a duty to warn Gillespies and Mr Smith, who was to continue operating the crane, as to the modification of the crane and what its safe operation required, must be accepted. 202It has long been accepted that there are cases where vendors have been found to owe purchasers a duty of care, given the foreseeability of injury arising from the goods sold. In Laundess v Laundess, a vendor of a second hand car was found not to have had a duty of care in relation to a defect in the door mechanism of the car, which permitted it to swing open, while the vehicle was being driven. That defect was found to have been the result of something done by an independent contractor. The claim advanced in negligence was a failure to ensure that the car was properly maintained. Mahoney J there observed that the case depended on whether it could be concluded that there was a duty which required the vendor's inspection of the vehicle, to see if the fault existed (see at 163). His Honour observed at 163 - 164: "... If the defect in the door mechanism had been present in the vehicle when the defendant had acquired it, the defendant would in my opinion not have been liable in negligence. There was nothing to suggest that there was such a defect in the vehicle. The mere fact that the vehicle was second-hand did not, without more, oblige the defendant to inspect it for such a defect. The vehicle was somewhat old. That is a matter to be taken into account in deciding what a vendor should do. But in this case this was not pressed as of particular significance. In the present case, the position was different. The defect which caused the injury was the result of what the employee of the Mobil garage did. There was no evidence that what the employee did should have been noticed by the second defendant when the car was returned. Therefore that defendant is liable only if it is responsible for the negligent act of the employee of the independent contractor, the Mobil garage." 203This case is not concerned with any defect. It was Brambles who engaged Baden to modify the crane. The scope or content of Brambles' duty was governed by what it ought to have advised of the modification it had Baden make to the crane and what safe operation of the modification made required. Given the significant likelihood of harm which would flow from unsafe operation of the crane, it ought to have given warning. 204In my view, the duty was one requiring Brambles to take reasonable steps to avoid the risk of harm occurring to operators of the crane such as Mr Smith who, in ignorance of the damage which could be caused by inadvertent failure to activate the switch before driving the crane, might then operate the crane without first checking whether the crane had been damaged, so as to cause its collapse, if operated. That was a duty which could readily have been met, by taking the available precaution of ensuring that the operator's manual was appropriately modified to reveal what safe operation of the crane required. There were also other available steps which could have been taken. Breach 205Whether there was a breach of the duty which Brambles owed Mr Smith depends on the considerations discussed by Mason J in Wyong Shire Council v Shirt at 47 - 48. 206In my assessment there is no question that the duty was breached. On the evidence a reasonable person in Brambles' position would have foreseen that its conduct involved a risk of injury to an operator of the crane such as Mr Smith. A reasonable response to the risk would have required, at the least, information being provided to the operators it employed, but also to Gillespies and other operators of the crane, as to the modification made to the crane, how it could be safely operated, and the risk of catastrophic collapse of the machine, which could result from inadvertent failure to activate the dolly switch. 207Such information could have been obtained from Baden and/or Liebherr. It could have easily been conveyed by modification to the operator's manual, by instruction to the operators Brambles employed and by advice given to Gillespies. 208On the evidence, it was a matter of mere good luck that an accident of this kind did not occur while Mr Smith was still in Brambles' employ, given that there had been earlier occasions when he had inadvertently overlooked activating the switch to release the brake. Not every act of negligence results in damage. Had Mr Smith on those earlier occasions driven the crane as little as 15 degrees to the right, the crane would then have collapsed, as it did after it was sold to Gillespies. Brambles' negligence did not result in any collapse of the crane before it was sold, but it did afterwards. 209Even accepting that Brambles did not have actual knowledge of the consequences of a failure to activate the dolly switch, before the crane was driven, the conclusion that it ought to have known of that dangerous feature of the crane and the risk which it gave rise to, must be accepted. Brambles had to ensure the safe operation of this crane, after it had the crane modified, even if an operator who it employed inadvertently overlooked operating the dolly switch (see Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349). On the evidence, such inadvertence was something which Brambles had to take into account, in the system it devised. 210A reasonable employer, in the position of Brambles at the time that it put the modified crane into operation, would have ensured that it obtained the information necessary in order that it could meet its duty to its employees. It was certainly aware that the operator's manual had not been modified to reflect the modifications made to the crane. When it sold the crane it was also apparent to Brambles that it had not acquired the information it required, in order to ensure that it was able to meet its duty to operators of the crane. A reasonable vendor of this crane in these circumstances would have given relevant warning. 211Despite this, it provided no information or warning to Gillespies about the modifications and the risks they created. On the evidence, these were not matters which any inspection by Gillespies could have uncovered. Brambles purported to rely on the sale contract, to exclude any liability, with the result that Gillespies was obliged to rely on its own enquiries. Brambles could not so exclude its obligation to give a necessary warning of what safe operation of this crane required. 212Nor could Brambles rely on its earlier failure, to protect it from its further breach of the duty it owed Gillespies and Mr Smith, when it sold the crane to Gillespies. On the evidence that breach was also well established. Causation 213It was argued for Mr Smith that in the circumstances, the provisions of sections 5C and 5D of the Civil Liability Act did not alter the common law, so far as factual causation was concerned. The evidence showed that but for the failure of Brambles to adhere to the duty which fell upon it, while it was his employer and subsequently, the injuries which he suffered would not have occurred. 214It was argued for Brambles to be necessary to consider what the evidence established as to its knowledge of the operation of the slew ring brake which the toggle switch released. That was to be considered in the context of s 5D of the Civil Liability Act . Apart from the operator's manual and the maintenance log book, there was no evidence of any other information being available to Brambles about the modified crane and its operation. Nor was there evidence of what additional evidence should have been available. The Court could not speculate about this (see Roads and Traffic Authority of NSW v Dederer ). 215Brambles further argued that it would not be accepted that even negligent failure on its part to train Mr Smith some 18 months before the accident, operated causatively. On the evidence the Court could not be satisfied that but for the failure to properly train, the accident would not have occurred. The accident was caused by operator error. Mr Smith's failure of memory was significant on the question of causation. He knew that if he failed to engage the switch, he would not have any reminders to do so. 216It was also argued that in so far as Brambles was concerned, the chain of causation was broken when the employment ceased. Sections 5D and 5E of the Civil Liability Act were not satisfied. It was argued that the 'but for' test was not established on the evidence. 217Brambles also argued that the evidence did not establish that the documents it had provided Gillespies, were not true, complete and up to date copies of the documents which came to it from the manufacturer. In any event there was no evidence that an up to date manual would have been causatively relevant. Mr Smith's evidence was that he only used the operator's manual when he had received bad advice. It was not a working tool for him and would not have told him anything. What it would have said, if it had said anything about the modifications, was a matter of speculation. 218I cannot accept these submissions. Brambles may not have known of the exact modifications undertaken by Baden to give effect to its instruction that the crane be modified, in order to permit it to be transported by road without disassembly. What it unquestionably knew, however, was that the crane had been modified to enable it to be transported without disassembly and that the crane's operator's manual had not been modified to reflect the modifications which had been made. In the circumstances, the oral instruction which it had Mr Hicks give Mr Smith about the operation of the crane was quite inadequate to ensure its safe operation. 219Brambles also provided no written or other information to the operators it employed, Gillespies or future operators of the crane such as Mr Smith, as to what safe operation of the modified crane required. 220Brambles led no evidence as to what information it had obtained from Baden about the modifications which were made, or what safe operation of the modified machine required. Mr Smith's evidence as to the instruction which he received from Mr Hicks showed that Brambles had some information about the operation of the modified crane, albeit what was conveyed by Mr Hicks was inadequate to ensure its safe operation. On the evidence, the information which Brambles provided Gillespies and future operators of the crane, through the unmodified operator's manual was entirely inadequate to meet the duty of care Brambles owed them. 221I am satisfied on the evidence that Brambles' negligence also operated causatively. But for its failures, the accident would not have occurred. It is evident that if Brambles had trained Mr Smith in the safe operation of the modified crane as it ought to have done when it employed him, by warning him of the consequences of a failure to activate the switch and the need to ensure that the crane had not been damaged, before the crane was operated, the accident would not have occurred. Further, had Brambles supplied the necessary information to Gillespies and later operators of the crane, as to the modifications made to the crane and what safe operation of the modified machine required, through the operator's manual for example, the accident would not have occurred. 222I have already discussed Mr Smith's approach to safety. I am satisfied that had either Brambles or Gillespies given him the necessary warnings, information and training, this accident would not have occurred. Nor would it have occurred if any of the simple and available steps later taken, which warned in various ways, of the need to activate the dolly switch before the crane was driven, been earlier taken. 223In the circumstances, responsibility for the harm its actions and failures caused, must also rest with Brambles. It is also appropriate that the scope of its liability to extend to the harm it caused by its acts and omissions.

The case against Gillespies 224The case against Gillespies was not brought under the Civil Liability Act . I have already discussed the stringent nature of the duty of care falling on employers. It was not in issue that this duty applied to Gillespies. Breach 225Gillespies' situation was argued for Mr Smith to be akin to that discussed in Czatyrko at [12] - [16]: "[12] The appellant relied in this Court on these basic general principles. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury [ Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J.]. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards [ Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 342 per Taylor J.]. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work [ Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 342-343 per Taylor J; Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 218 per Gibbs J; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 500 [128] per Kirby J.]. [13] The appellant's reliance on these principles is well founded. This case is in our opinion a tolerably clear one. This is not simply a case of a failure to warn. It is a case of a failure to devise and implement a safe system of work, or to provide the appellant with proper and sufficient equipment to enable him to carry out his work safely. The risk that the appellant would attempt to step backwards on to the platform in the belief that it was raised, without checking whether this was the case, was plainly foreseeable. There was no system in place to guard against it. The risk could have been readily obviated by the respondent by the taking of simple measures. The measures included the fitting of a warning "beeper" or the introduction of a system for the giving of an oral warning as and when the platform was being lowered. In light of its failure to implement such or like measures, the respondent was in breach of its duty to take reasonable care to prevent the risk of injury to the appellant. The Full Court therefore erred, in our opinion, in its determination that the respondent was not in breach of its duty. [14] Compliance by the respondent, as an employer, with its duty of care to an employee was not to be measured by reference to the reasonableness of imposing on an occupier of land an obligation to warn members of the public about the obvious risks on the land. The case for the appellant was not that he should have been warned by his employer that if he fell off the truck he might suffer injury, or that if he stepped off the back of the truck into space he would fall. It was not a question of warning the appellant of a risk. It was a question of creating a risk by failing to adopt a safe system of work. [15] There should have been in place a system of work designed to avoid the risk that a person required to step backwards and forwards on and from a moveable platform might do so without first looking behind him. The system of work necessarily had also to take into account that the task was a repetitive one to be performed in a diminishing space. Proper account of these matters was not taken by the respondent. It did no more than require that the appellant and Mr Fendick load the truck. That proper account of these matters was not taken was overlooked or disregarded by the Full Court. [16] An employer has another obligation. It is to provide employees with suitable plant and equipment to enable them to carry out their work safely. This case could also be characterized as a case of a failure to do that. The simplicity and inexpensiveness of a warning device that could have been fitted, required that it be fitted here. This was another matter to which the Full Court failed to pay due regard. The respondent was negligent. The Full Court erred in holding to the contrary. " 226Mr Smith's case was that even though it acquired the crane operation as a going concern from Brambles, together with the crane and Mr Smith's services, Gillespies was not entitled to proceed on the basis that the existing systems in operation satisfied the duty which it owed Mr Smith, when it employed him. If Gillespies did not know about the operation of the dolly switch and the consequences of a failure to activate it, it ought to have known. Its duty to provide a safe system for operation of the crane it had acquired was non-delegable and included an obligation to operators who might inadvertently overlook activating the switch. On Mr Gillespie's own evidence, it was foreseeable that they might. 227Gillespies' case was that it had not been negligent and had acted as any reasonable employer would in the circumstances. It was accepted that it owed Mr Smith a heavy non-delegable duty of care, but it was not a case of strict liability. 228Gillespies argued that it was in the same position as Brambles, in that it had no actual knowledge of the risk of collapse posed by the slew ring brake. That risk had arisen from the modification Baden had undertaken. By way of contrast to its position, however, Brambles could not assert that it was a mere conduit. It had engaged Baden to effect the modifications it had required, which had created the risk. Unlike Brambles, Gillespies had never operated the crane in disconnected form and had not been informed by Brambles of the modification. It was not aware that the operator's manual did not reflect the modification made to the crane. 229It was also relevant that neither the engineering reports nor the WorkCover investigation suggested that any fault lay with Gillespies for the crane's collapse. There was no suggestion of inadequate maintenance, or that it was aware of any defect. It was not aware that Mr Smith having done what he did, gave rise to any risk, or that the result was that the crane had thereby been rendered unsafe. While the risk to which Mr Smith was exposed was unquestionably unreasonable, it was unknown. Mr Gillespie's evidence was that the most that could result from Mr Smith's oversight was some tightness of steering. The evidence of Mr Smith's prior experience gave some comfort in that regard. 230Gillespies also contrasted its approach to the proceedings with that of Brambles and Baden. It had called evidence from Mr Gillespie. They had called none. The inference was that any available evidence could not have assisted their cases. Brambles was not a mere conduit. There was something more present. The inference was that it had knowledge of the risk, given its initial operation of the machine in its disconnected form; the modifications it had made; and its subsequent operation. It had knowledge of the quick release system and that the modification did not result in the necessary updating of the operator's manual, expressly said there to be an integral part of the machine. The result was that the operator's manual contained no information or warning about the operation of the machine after modification, when driving with a dolly, or the risks which flowed from a failure to activate the switch, before the crane was driven. The contractual warranties relied on by Brambles did not assist its case, but the evidence established that the necessary information was not provided to Gillespies by Baden or Brambles. 231In my assessment, while Gillespies' contribution to what resulted for Mr Smith, was unquestionably less than that of Baden and Brambles, who each contributed to the position Gillespies found itself in, on all of the evidence I am unable to accept the case pressed for Gillespies. The evidence established that it did breach the duty it owed to Mr Smith. 232Mr Gillespie gave evidence as to the circumstances in which the business had been acquired as a going concern from Brambles and the inspections which had been made of the crane, before it was acquired. I accept entirely his evidence that he was not personally aware of the nature of the modification which Brambles had Baden make to the crane; that he did not know that the crane could come apart; and that if he had known, he would not have operated the crane, without at least first making enquiries of Liebherr, who he regarded as a world leader in its field. 233Gillespies had other cranes which were transported with a dolly. They, too, had a mechanism which enabled the brakes to be freed, to permit travel. In their case, however, there was no risk that if the dolly switch was not activated, that the crane would be damaged with the result that it would later topple over when operated. 234Mr Gillespie was not aware that Mr Smith had not activated the switch, when he initially drove off on the morning of the accident. On Mr Gillespie's evidence, the steps which Mr Smith then took were, however, steps which a proper and safe operator of the crane should have taken. He believed at the time that Mr Smith had been provided with all of the requisite information he needed and that he had the requisite skills, to carry out his work properly and safety. Unfortunately, Mr Gillespie's understanding of the adequacy of the information with which Mr Smith had been provided, and the training he had been given while in Brambles' employ, was incorrect. 235Mr Gillespie accepted that on occasions an operator might inadvertently overlook activating a switch like the dolly switch. He candidly conceded that he had done so himself. Once aware from the effect on the steering, he had stopped, as Mr Smith had done, released the switch and driven on without problem. Mr Gillespie regarded this as an appropriate and safe approach, drawing an analogy with what a driver who had overlooked the release of a handbrake of a car would do. 236The difficulty was that in the case of this crane, what Gillespies had to ensure was that the crane it had acquired could be operated safely. That required the dolly switch to be activated before the crane was driven. This was not a case of any defect in the crane. On the expert evidence, the dolly switch operation was an intended feature of the modification Baden had made. That feature necessitated that the switch be activated, otherwise catastrophic damage could be caused to the crane, even if driven for a short distance. 237These are not circumstances akin to those dealt with in cases such as Davie v New Merton Board Mills Ltd [1959] AC 604. There the employer provided an employee with a simple metal tool with no apparent defect, which had, in fact, been manufactured to excessive hardness, as the result of negligent heat treatment by the manufacturer. That was a defect not uncoverable, other than by testing of a kind which an employer could not reasonably have been expected to undertake, before issuing the tool to an employee. It was concluded that in those circumstances, the employer was not liable to the employee for the consequences of the manufacturer's negligence. 238This is an entirely different case. As a result of its investigations, Gillespies had been particularly interested in the acquisition of this crane, because of the poor condition of another crane which it was considering acquiring from Brambles. Not only did Gillespies acquire cranes and operators like Mr Smith, it also employed the mechanic who had maintained the crane while employed at Brambles, Mr Pritchard. Mr Gillespie accepted that Mr Pritchard would have known the workings of this crane and its ability to be uncoupled, even if he did not. Gillespies also had its own mechanics inspect the crane, before it was purchased and they maintained it afterwards. It also acquired the operator's manual, which revealed that it could be disassembled. That Gillespies had information that the crane could be disassembled when it was acquired, is apparent. On Mr Gillespie's evidence, that knowledge ought to have resulted in Gillespies taking steps to ensure that it knew what safe operation of the crane required. 239This was an extremely sophisticated, expensive piece of heavy equipment. The dolly switch was an intrinsic part of the crane's operation. Clearly Gillespies' inspection did not reveal the nature of the modifications undertaken to the crane and the risk which they gave rise to. Nor did the operator's manual supplied with the crane reveal anything about these matters. An enquiry of Liebherr, if not Baden, would have. On Mr Gillespie's evidence, it was Liebherr who should have been approached. 240What the operator's manual did deal with was the removal of the upper platform. It also contained instructions as to the regular maintenance of the crane, which required its removal. That referred to the retaining pins. Mr Gillespie agreed that if he had read the operator's manual, he would have become aware of the existence of the split ring system and that the upper platform could be removed. Gillespies' later maintenance of the machine would also have revealed these aspects of the crane's functions, even if it had not already been known to Mr Pritchard, as it was. In those circumstances, that Gillespies had no knowledge of the existence of the slew ring mechanism, or its operation, cannot be accepted. 241Mr Gillespie's evidence was that if he had had that knowledge, when Gillespies acquired the crane, he would not have operated the crane, without at least first making enquiries of Liebherr. Clearly, with the information Gillespies had, such an enquiry ought to have been made. It does not seem open to doubt that such an enquiry would have revealed the nature of the modifications Baden had made and what safe operation of the crane required. 242Gillespies had a duty to ensure that the operators it employed to operate the crane which it had acquired, were given sufficient information, instruction and training, to ensure its safe operation. The duty which it owed Mr Smith required that the real risk of injury which flowed if the toggle switch was not activated, before the crane was driven, was addressed in the system under which the crane was operated. Gillespies had to take reasonable care to avoid that risk by devising a method of operation which eliminated the risk, or by the provision of adequate safeguards , given the catastrophic consequences which would follow from an inadvertent failure to use the toggle switch to release the brake. 243On the evidence, Gillespies seems to have taken no steps to ensure that the system under which Mr Smith was operating the crane, as devised by Brambles, met the duty it owed him as an employee. Given the nature of its duty and the absence of any steps taken by Gillespies to satisfy itself that its duty to Mr Smith was fulfilled by the information, instruction and training he had previously received while in Brambles' employ, that it breached its duty must be accepted. Just as Gillespies could not delegate its duty to Mr Smith, it could not act on the basis that what Brambles had done before it employed him, was adequate to ensure that its duty was satisfied once Mr Smith came into its employment. 244Warning Mr Smith of the consequences of a failure to activate the switch and the need to ensure that the brake had not been damaged, before the crane was operated, was one step which ought to have been taken for the duty owed to be met. As I have said, other simple and inexpensive steps which were later taken, were also available. They included modification of the operator's manual and steps such as the white line painted on the boom which indicated at a glance if the brake had been released and the safety features which were installed into the crane. 245The need for such steps to have been taken was readily apparent. The evidence revealed how a failure to release the brake could arise inadvertently, even in the case of a highly experienced and highly regarded employee such as Mr Smith. 246Whatever be the explanation for how Mr Smith came to overlook activating the switch before he drove the crane off, it was clearly not deliberate, or because he was a careless or incompetent operator. To the contrary, on Mr Gillespie's evidence he was a highly competent, well respected crane operator. Mr Smith was obviously aware of safety requirements and was careful to do what he understood from his training was necessary, in order to ensure safe operation of the crane. The crucial information which he did not have, was that driving off without releasing the brake even for a very short distance, raised the possibility of crucial damage to the dowel rods. That would result from a slight turn to the right. 247Mr Gillespie agreed that generally speaking with cranes which use dollies, they had to be able to 'free travel' and if they couldn't, there was a possibility that they could be damaged during travel. In his experience if they could not free travel, they could only move in a straight line. His evidence was that if he knew what was going to happen, he would never have allowed the crane to operate. He was asked what he expected Mr Smith to have done, when he found that he hadn't operated the dolly switch. He said: "No. I did answer that question before; and again, using my own personal experience from driving cranes with dollies, I have driven a crane forward and felt it immediately, that it wasn't right. Stopped. Fixed the switches and then moved, drove onwards, having regard the simplest - you know, relating it to the experience of driving a car at night time; you mightn't turn your lights on immediately, but you realise very quickly you haven't got your lights on. You don't write out an Incident Report for something as simple as that." 248Quite clearly, if Mr Smith had been given any training, warning or information about in the adverse consequences of the inadvertent failure to activate the switch, the crane collapse might have been avoided. A warning that the switch had not been activated, before the crane was driven could have brought about the same result. Given his evidence as to his approach to safety and the evidence of Mr Gillespie, if Mr Smith had been informed that it was necessary to ensure that the crane had not been damaged, if activating the switch had been overlooked, before proceeding to operate the crane, that is a step which he would have taken. Causation 249It was argued for Gillespies to be relevant that while Mr Gillespie had accepted that if he had looked at the operator's manual, he would have become aware that it was possible to disconnect the crane, but that would not have disclosed what would result from the failure to activate the dolly switch. Mr Gillespie said that he would have asked Liebherr, if he became aware of the disconnection capacity, but on the evidence all he would have been told was that the modifications had been carried out with Liebherr's specifications. That was argued to go to causation. 250It was also relevant that the evidence of both Mr Gillespie and Mr Smith was that in their experience, the most that would result from a failure to activate the switch before a crane was driven, was some difficulty in driving the crane. It followed that the identification of the possible separation of the crane from the carrier would have no causative effect. 251Again, I cannot accept these submissions. I am satisfied that causation was established. In Kuhl it was observed at [45]: "To satisfy the element of causation on the case presented for Mr Kuhl to this Court, it would be necessary to identify the action which, on the available evidence, the trial judge could conclude ought to have been taken; that action, if failure to take it is to be accounted negligent, must be such that the foreseeable risk of injury would require it to be taken, having regard to the nature of that risk and the extent of injury should the risk mature into actuality; and it would be necessary that the trial judge could conclude as a matter of evidence and inference that, more probably than not, the taking of that action (here the installation of the break box) would have prevented or minimised the injuries the plaintiff sustained [ State of Victoria v Bryar (1970) 44 ALJR 174 at 175 per Barwick CJ, McTiernan, Owen and Walsh JJ concurring.]." 252In this case, the evidence showed that Gillespies ought to have taken steps to ensure that the system under which Mr Smith was operating the crane, while employed at Brambles, which it continued without any consideration as to its adequacy or safety, ensured that Mr Smith could safely operate the crane it had acquired. That assessment had to take into account information which was shown to be available to Gillespies, that the crane could be disassembled for transport, but was in practice not being so transported. The operator's manual did not deal with such an operation of the crane. Of itself that should have raised an enquiry of the kind Mr Gillespie described. 253In those circumstances Gillespies not only had to make the enquiries with Liebherr which Mr Gillespie described, it also had to consider whether the instructions, information and training Mr Smith had been given while in Brambles' employ, was adequate to ensure his safe operation of this crane. Its failure to take any steps in that regard, had the result that the unsafe system which Brambles had devised, was simply allowed to continue. Had available steps been taken by Gillespies, this accident would not have occurred. 254The evidence well established that the simple steps I have described as being available to Brambles, which would have prevented the crane's damage and collapse, were also available to Gillespies. They included the provision of information, instruction and training for Mr Smith, amendment of the operator's manual and the various changes later made to the crane, to address the risk which had materialised. 255In the circumstances, it must be concluded that Gillespies' failures were also causative.

The Occupational Health and Safety Act 2000 regulations

256Given the conclusions which I have otherwise reached, it is not necessary to deal in detail with the case finally but faintly pressed for Mr Smith by reference to these regulations. In Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 , it was observed: "49. The obligation imposed on Leighton under the Regulation, while not founding an action for breach of statutory duty, is central to the Court of Appeal's conclusion that a common law duty existed. While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OHS Act and the Regulation into a duty of care at common law. This is because, as Gummow J explained in Roads and Traffic Authority (NSW) v Dederer [70], "whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden." 257In my view, in this case these regulations do not shed particular light on the scope of the various duties in issue between the parties, additional to that which I have already discussed. As was submitted for Brambles, they are designed to emphasise protection of the public in the case of plant used in public places. Clearly, the crane was such plant and the duty which was respectively owed by Baden, Brambles and Gillespies, arose in circumstances where collapse of the crane not only put an operator such as Mr Smith at risk of injury, but other people in its vicinity. That is a factor which I have already dealt with. It supports the existence of the duties I have already explained.

Contributory negligence - Mr Smith 258I accept the case advanced for Mr Smith, that given the absence of any information, training or warning about the consequences of the modifications made to the crane, or the consequences of even an inadvertent failure to activate the switch, before driving the crane for a short distance, a case of contributory negligence cannot be established against him. 259The Civil Liability Act provides in s 5R: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time." 260Baden relied on what was observed in Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at [144] - [146]: "144 Pursuant to s 5R of the Civil Liability Act the principles are applicable in determining whether a person has been negligent also applied in determining whether the plaintiff was guilty of contributory negligence in failing to take precautions against the risk of the harm which befell her. The standard of care required of the plaintiff was that of a reasonable person in her position, and the matter was to be determined on the basis of what she knew or ought to have known at the time: s 5R(2). 145 Section 5R(1) reflects the "fundamental idea that people should take responsibility for their own lives and safety" and also the proposition expressed by Callinan and Heydon JJ in Vairy (at [220]) that "the duty that [an injured plaintiff] owes is not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized": Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 (at [68] - [70]) per Ipp JA (Giles JA and Hunt AJA agreeing); see also Gordon Martin Pty Ltd v State Rail Authority of New South Wales & Anor [2009] NSWCA 287 (at [39] - [41]) per Beazley JA (Giles and Ipp JJA agreeing). 146 The question whether a person has been guilty of contributory negligence is determined objectively. The Council and Stojan bore the burden of proving that the plaintiff had been guilty of contributory negligence: Gordon Martin Pty Ltd v State Rail Authority of New South Wales & Anor (at [42]); Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 (at [16], [18]) per McHugh J; Flower v Ebbw Vale Street, Iron and Coal Co Ltd [1936] AC 206 (at 216); Commissioner for Railways v Halley (1978) 20 ALR 409 (at 419)." 261In Czatyrko , it was concluded that contributory negligence could not be established, it being held at [18]: "In the present case, the appellant did no doubt omit to take a simple precaution of looking to see whether the platform was raised before stepping on to it, and this omission was a cause of his injuries. But in acting as he did, the appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent in relation to the use of the platform. Furthermore, both the appellant and Mr Fendick were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all of these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent. This it failed to do in this case. The appellant's attempt to step on to the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than "mere inadvertence, inattention or misjudgment" [ Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310.]. It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made." 262In Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, it was explained at 310: "A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage. See Podrebersek v. Australian Iron & Steel Pty. Ltd . [1985] HCA 34; (1985) 59 ALJR 492, at pp 493-494; [1985] HCA 34; 59 ALR 529, at p 532." 263This was a case of a fundamental defect in the system of work under which the crane was operated, in the context of each of the defendants' failures to provide adequate information and warning about the modifications Baden had made to the crane which created a grave risk of catastrophic damage to the machine if activating a switch was overlooked. Baden failed to give necessary warnings, as did Brambles and Gillespies. Mr Smith's two employers also both failed to ensure that they had devised a safe system of operation for the machine. The circumstances which are said to give rise to contributory negligence, were Mr Smith momentarily overlooking activating the switch, not knowing what might result; where he identified his oversight before the crane had even left the yard; where he then attended to his oversight in the same way as Mr Gillespie described he had himself reacted, when he had made a similar error when driving other cranes. These circumstances cannot, in my view, lead to the conclusion that contributory negligence was established. That conclusion is reinforced when consideration is given to Mr Smith's uncontested evidence as to his attention to safety matters and Mr Gillespie's evidence as to the high regard in which he was generally held, as an operator of the crane. 264In McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, a case where the plaintiff was also injured when following an unsafe system of work, where the employer had also either failed to establish a safe one, or had acquiesced in the unsafe one, it was said at 315: "The issue of contributory negligence presents a little more difficulty, as the primary judge acknowledged. However, we are inclined to think that the difference between the approach adopted by the Full Court and that adopted by the primary judge largely reflected the difference in attitude to Brambles' responsibility in providing a safe system of work. The issue of contributory negligence has now to be approached on the footing that Brambles failed to discharge its obligation to provide a safe system, that is, to take appropriate precautions against the risk of injury arising from the motorist's negligence and the employee's failure to observe an oncoming vehicle as he carried out his allotted task. The question is whether that failure should be characterized as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognized distinction between the two. It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact." 265In Ghunaim v Bart [2004] NSWCA 28 at [61] - [65] McColl JA said: "61 The notion of "thoughtlessness" referred to in Bourke v Butterfield is also expressed in synonyms such as temporary inadvertence to danger, lapse of attention, taking of a risk, carelessness by an employee due to confusion, fatigue or natural slackening of attention or preoccupation in what he or she is doing. In Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 176, Lord Wright, speaking of the degree of want of care which constitutes contributory negligence, said '[t]he jury have to draw the line where mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins'; see also John Summers & Sons Ltd v Frost [1955] AC 740 at 777. 62 Lord Wright's metaphorical reference to drawing the line should not obscure the fact that the question whether an employee has been guilty of contributory negligence is one of degree. The authorities upon which the appellant relies are useful illustrations of how the court should approach the task of distinguishing between thoughtlessness and negligence. 63 The fact that there is no clear demarcation between an act done without reasonable care for one's own safety and an inadvertent, thoughtless act was emphasised in Sungravure Pty Limited v Meani [1964] HCA 16, (1964) 110 CLR 24 by Kitto, Menzies and Owen JJ. Referring to a submission on behalf of the respondent (plaintiff) that he had merely acted thoughtlessly or inadvertently and not negligently and that in those circumstances a finding of contributory negligence should not be made, the majority said (at 33): 'An inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it, and whether it is so or not is a matter for the consideration of the tribunal of fact.' 64 Windeyer J set the matter in context, saying (at 36-37): 'A safe system of work is one that is safe for the average workman taking reasonable care for his own safety. It is not a system which is safe only for persons of superior skill whose attention never wanders.... In the press of affairs anywhere a need to act promptly may sometimes lead to something being done, which has unfortunate results, but which is attributable to an error of judgment rather than a blameworthy want of due care.' 65 In Commissioner for Railways v Halley (1978) 20 ALR 409 at 415, Jacobs J emphasised that it was not sufficient for an employer seeking to establish that an employee was guilty of contributory negligence merely to demonstrate that the employee knew the task at hand was 'highly dangerous'. ... " 266In the circumstances of this case, I am satisfied that where Mr Smith was never given any necessary warning, information, instruction or training as to the feature of the machine which caused its catastrophic damage, or even of the need to ensure that there had been no damage caused by his inadvertent failure to activate the switch, before the crane was operated, in the way the evidence revealed, cannot establish his contributory negligence. Mr Smith's oversight was certainly not an act done without reasonable care for his own safety.

The cross-claims 267It is provided in s 5 of the Law Reform (Miscellaneous Provisions) Act that: "(1) Where damage is suffered by any person as a result of a tort (whether a crime or not): (a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage, (b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the spouse, brother, sister, half-brother, half-sister, parent or child, of that person, against tort-feasors liable in respect of the damage (whether as joint tort-feasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action, (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought. (2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity. ... " 268Brambles claimed full indemnity from Gillespies and/or Baden, arguing that both were in a superior position of control and knowledge to it and that both their failures were significantly more causatively potent, than any failure on its part. It was also argued that there would be no apportionment of liability, having regard to the principles in Sweeney v Boylan Nominees Ltd and the scope of Gillespies' non-delegable duty as an employer. 269I am unable to accept these submissions. For reasons which I have earlier explained, the evidence does not permit the conclusion argued for Brambles. In my view, there must here be an apportionment between all the defendants. 270Gillespies' case that both Baden and Brambles owed it a duty of care, given the modifications made to the crane, which in Brambles' case existed independent of the sale contract, must be accepted. They failed to provide information vital to the safe operation of the machine. In so far as the risk was foreseeable, Brambles was in a much better position of identifying it than Gillespies was. 271I accept that Gillespies established a case against both Baden and Brambles. For reasons which I have already explained, in my assessment Baden owed owners and operators of the crane a duty of care, as did Brambles. They owed a duty to Gillespies when it acquired the crane. That duty flowed from the modifications which Baden made to the crane at Brambles' request and the sale of that crane by Brambles. Both Baden and Brambles breached their duty to Gillespies. 272The nature of the duty which Gillespies owed Mr Smith as his employer, did not relieve either Baden or Brambles of the consequences of the breach of their duty to Gillespies. Nor did those duties relieve Gillespies of the duty it owed Mr Smith. 273The end result cannot, therefore, be a full indemnity for Gillespies. On the evidence as to its own approach to the duty which it owed Mr Smith, the breaches of the duties which Baden and Brambles owed it, cannot relieve it entirely of the consequences of its own breach of the duty it owed Mr Smith. 274Having all of the matters I have dealt with in mind, I have come to the conclusion that the matters raised by the various cross claims must be resolved by a conclusion as to the defendants' respective responsibilities for the injuries which Mr Smith suffered. That will properly take account of the cases upon which each of the defendants succeeded. The result is an apportionment of Baden having a 45% responsibility, Brambles 35% and Gillespies 20%. 275While at the time of the injury, Gillespies had day-to-day control of the crane and Mr Smith's work, owing him a stringent duty of care as his employer, the evidence showed that both Brambles and Baden both failed to meet the duties which they each owed to Mr Smith and Gillespies, in circumstances where they each had direct knowledge of the nature of the modifications which had been made to the crane and the inadequacy of the information provided to operators and purchasers of the crane, such as Mr Smith and Gillespies, of what safe operation of the crane required. 276In that respect, Baden, which had made the modifications, was in a much better position than Brambles to understand what information was required to be given, if the crane was to be able to be operated safely. Its failures were more significant than those of Brambles.

Mr Smith's injuries 277There were no real issues as to the injuries which Mr Smith sustained, other than a question as to back pain. As the result of his injuries, Mr Smith has never been able to return to his work as a crane operator and suffers ongoing pain. His life has otherwise been substantially affected in various ways. He is, for example, unable to pursue longstanding interests such as fishing and camping, without experiencing substantial pain. 278His evidence was that he suffered a broken and crushed left ankle, a broken right foot, and severe bruising of the left ribs and right wrist. There was a communited displaced open fracture of the left foot, which required extensive surgery. The result was severe pain in his legs which had left him anxious and stressed. His foot tingled and was bloated up, which did not allow any rocking movement. He also suffered back pain. 279Mr Smith was cross-examined as to his health since the accident. He said he now had increasing problems with his right knee, but he was not seeing anyone about that at the time of giving evidence. He was still taking pain medication as the result of his ongoing problems with his left ankle and leg. 280Mr Smith's evidence was consistent with the assessment made of him by Dr Harrison, an orthopaedic surgeon, in 2006. This showed that Mr Smith had surgery on his left ankle on 3 November 2003, at a time when he was suffering intense pain and deformity, with displacement of fracture fragments. While hospitalised, bruising developed on his chest wall, with fractured ribs then suspected. That pain eventually settled. There was further surgery on his foot on 6 November. Problems in recovery were the result of the surgery to the left ankle, the injury to the right ankle and right wrist and the need to use crutches during recovery. There was follow up surgery on the left ankle in January 2004 and physiotherapy. Further surgery was required in April 2004, involving a bone graft. Dr Harrison believed further surgery might be beneficial to help relieve ongoing discomfort in that ankle. 281Mr Smith was able only to return to light office duties at Gillespies and struggled to cope, before obtaining a position at Melrose Cranes, as an occupational health and safety supervisor, starting on 20 hours per week and building up to 40. He also struggled with that work, however, because of problems with his left ankle and hind foot. As at April 2006, Dr Harrison observed that there were no problems with his right wrist and that the chest wall pain had settled, but observed that there were residual problems with dysesthesia in both feet, some referred pain to his back and pain, swelling, restriction of motion and a tendency to limp, favouring his left leg and ankle. 282The limp was described to be heavy, with the result that Mr Smith had problems with stairs, but there was no significant restriction with the right leg. He had problems sitting for long and was then being treated for ongoing pain and swelling. Dr Harrison concluded that Mr Smith's condition had stabilised; that he was experiencing referred pain from his back, accounting for the dysesthesia (that is pain or abnormal sensations such as tingling, burning or numbness) in both his limbs. His tendency to limp was likely to accelerate the pattern of wear in his left knee, with the result patterns of mechanical back pain, which would increase and create greater problems in time, if not helped by interim conservative measures. Dr Harrison concluded that: "His tendency to limp favouring the left leg is a direct consequence of the calcaneal fracture and the back injury in the mechanics of the original injury on 3 November 2003 that I have described and certainly are likely to be substantially related to the injury and the subsequent incapacities which he has suffered, limping favouring the left leg and with asymmetrical loading on to his right lower limb at and following that injury over a long interval of time." 283There was then a 15% whole of person assessment relating to Mr Smith's injury at work, irrespective of previous injury to which Dr Harrison had referred in his report, having in mind the referred pain from Mr Smith's back and the pain affecting both his limbs. 284After the hearing, written submissions were filed without objection for Brambles, where it was argued on the basis of various medical records in evidence, that the plaintiff did not injure his lower back in the accident; that he may have stirred up his neck, but that had clearly settled and that even at the time of the accident, he had degenerative changes which more likely than not caused non-compensable incapacities. He had also suffered from and received treatment for other non-compensable injuries, including to his right knee. It was submitted that there was no mention of back problems until May 2007, when reference was made to back pain since 2007; there was mention of non-compensable knee problems for several years, with in May 2007 osteoarthritis noted in the right knee and in 2008, pains in the lower lumbar, knees, hips and ankles, with a right knee arthroscopy, partial meniscectomy and chondropathy which would have caused non-compensable economic incapacity, with future implications as arthritis became established. Not to take these matters into account would result in overcompensation for the injuries suffered. 285That Mr Smith suffered other non-compensable injuries in the past is apparent. They were dealt with in Dr Harrison's report and in later material. They may not be take into account in the assessments here made. Nevertheless, I am satisfied that the evidence clearly establishes that before 2007, Mr Smith was suffering back pain as the result of the injuries he sustained in the accident. Given his evidence and Dr Harrison's 2006 description of what he had experienced and the treatment that he had received, that Mr Smith suffered the back pain claimed, can readily be accepted. It follows that some account must be taken of back pain, even if later exacerbated by other things dealt with in the evidence.

Mitigation 286Mr Smith's 2007 affidavit evidence was that he did not work for a substantial period after the accident. After an initial return to Gillespies on light duties, he obtained employment with Melrose Cranes through his contacts, in a job which did not involve crane driving, but was mainly office based. He could not manage rough terrain on sites and was taking pain killers and anti-inflammatories. His condition also precluded him working overtime, but he tried to keep up 40 hours per week. He was previously earning $1,032 gross per week and up to $2,000 with overtime. At Melrose Cranes he was earning between $940 and $960 per week. He left that employment in 2008 to commence his own business and had since been self-employed, working for a company of which he and his wife were directors. Little of his work is based at work sites and he does not operate cranes. 287Mr Smith was cross-examined about this business, which he pursued after having undertaken various further training in occupational health and safety and first aid. The business provides various training and assessment, Mr Smith having also become a WorkCover accredited assessor, for crane operators seeking crane certificates. 288The business is operated from home, with his wife performing the administration and finance work, with assistance from their accountants. Mr Smith charges rates ranging from $60 to $80 per hour for his work. To 30 June 2009 sales of some $41,000 were generated and in 2010, $80,841, with wages of some $33,635 paid. The schedule of income showed net earnings per week in 2003 of some $1,140, falling to $683 in 2004 and in 2008 when the business was commenced, $586, with earnings in 2010 estimated to be of some $272 per week. Mr Smith accepted that there was room for growth in his business, but that depended on his physical capacity. 289On that evidence, I am satisfied that Mr Smith has acted in accordance with his obligation to mitigate his damages.

Section 151Z of the Workers Compensation Act 1987 290It was common ground that s 151Z of the Workers Compensation Act 1987 must be applied. Its operation has been repeatedly considered in the authorities and is to be approached in the way discussed in J Blackwood & Son Ltd v Skilled Engineering Ltd [2008] NSWCA 142 and cases which have followed it. Mr Smith received workers compensation payments from Gillespies, which must be dealt with in the orders made. 292The section relevantly provides: "151Z Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation, (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation, (c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act, (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages), (e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages, (e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment, (f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission. (2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages, (e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that: (i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise-the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and (ii) if the compensation paid by that employer does not exceed the amount of that contribution-subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution. (3) This section applies to proceedings taken independently of this Act by a person to whom compensation is payable under this Act in respect of the death of a worker as a result of an injury. (4) If a worker is liable under subsection (1) (b) to repay any money out of damages recovered by the worker, the worker is not liable to repay the money out of any damages payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses. (5) For the avoidance of doubt, this section applies and is taken always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement." 293The Workers Compensation Act limits the damages which may be recovered by Mr Smith from Gillespies, but not from Baden and Brambles, although in the circumstances which have arisen, it does have an impact on what Mr Smith may recover from them (see Grljak v Trivan Pty Ltd (In liq) (1994) 35 NSWLR 82 at 91). In this case, damages are recoverable from Gillespies because I have assessed Mr Smith's degree of permanent impairment suffered at over 15% (see s 151H(1)). This Act, in the final result, means that Mr Smith may only recover less than what would have been the case, if Gillespies had not been a tortfeasor responsible for his injuries. 294Section 151Z has similar aims to those of s 5(1) of the Law Reform (Miscellaneous Provisions) Act , that is to achieve a just and equitable contribution between those found to have been tortfeasors, having regard to the extent of their respective responsibility for the damages in question. Ultimately, however, it limits the amount paid by Gillespies on the basis that it should not pay an amount greater than if its proportionate share of the responsibility had been applied to an amount of damages quantified under the Workers Compensation Act. 295Section 151Z(2)(d) requires that an assessment be made of the amount of the damages which Mr Smith would have been entitled, if all of his damages were calculated in accordance with the damages regime established by the Workers Compensation Act and to asses the respective proportionate responsibilities of Baden, Brambles and Gillespies. What Gillespies can recover from Baden and Brambles is not dealt with by s 151Z. The Law Reform (Miscellaneous Provisions Act) is the source for orders of contribution, as between them. 296What must thus be ascertained is both the amount of Mr Smith's modified common law damages under the Workers Compensation Act , those ascertained in accordance with the Civil Liability Act and the proportionate responsibility of the defendants. 297In this case, I have found that Baden and Brambles breached their duty of care and thereby caused the injuries which led to the payments made by Gillespies, which was also in breach of its duties to Mr Smith and caused his injures. The 15% threshold applying to Gillespies has been passed. The preconditions to s 151Z(2) have been satisfied. 298I now turn to the calculation of damages.

Damages 299There was finally no issue between the parties about past out of pocket expenses; the figure for Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 ; the rate at which superannuation would be calculated (11%); Mr Smith's actual earnings; or those of crane drivers now employed by Gillespies, although that not accepted by the defendants, as a comparable figure. 300The plaintiff's schedule of damages for Baden and Brambles was: "1. Non-economic loss 175,000.00 35% CLA 2. Past economic loss 371,308.75 (i) wage loss 40,843.96 (ii) Loss of super at 11% 3. Future economic loss (i) $1,200 pw x 13 yrs 512,346.00 i.e. $1,200 x 502.3 x .85 (ii) future loss of super at 11% to age 65 $56,358.00 4. Past out of pocket expenses 103,471.57 (i) workers compensation 5. Future out of pocket expenses 20,000.00 6. 2 hours pw x $35 x 32 yrs 59,150.00 i.e. $70 x 8.45.00 7 . Fox v Wood 4,164.97 $1,342,643.00"

301The plaintiff's schedule of damages for Gillespies was: " 1. Past economic loss 371,308.75 (i) Per Schedule 1 40,843.96 (iii)(sic) Past loss of super at 11% of wage loss 2. Future economic loss (i) $1,200 pw x 13 yrs 512,346.00 i.e. $1,200 x 502.3 x .85 (ii) Future loss of super at 11% to age 65 56,358.00 3. Fox v Wood 4,164.97 $985,021.00"

302Gillespies addressed some matters which did not directly affect it on behalf of the other defendants. The parties did not finally address on the impact of s 151Z, the calculation of which they hoped to agree. That calculation remains to be undertaken by the parties. Gillespies' schedule was: "1. Non-economic loss: 32,500.00 25% of a most extreme case - S. 16 Civil Liability Act 2002 2. Past out-of-pocket expenses: 103,471.57 (Agreed) Future out-of-pocket expenses : 3. Calculated based on ongoing Panadeine Forte (caplets 50 price $12.50) (4 per day) (say) $6 per week and laxatives at 100 capsules for $23.44 (say) $5 per week 10,912.20 Attending GP twice per annum (say) $2 per week Total: $13 per week for life (839.4) Past economic loss : Pre-Injury earnings of $1,140 net per week Period 1 : From 3 November 2003 to 30 June 2008 - $374.34 x 242 weeks - $90,590.28 Period 2 : From 1 July 2008 to 30 June 2009 4. $100 x 52 = $5,200 $105,690.00 Period 3 : From 1 July 2009 to 30 June 2010 $100 x 52 = $5,200 Period 4 : From 1 July 2010 to 23 May 2011 $100 x 47 = $4,700 NB . S151I WCA 5. Past superannuation at 11% 11,625.93 Future economic loss: Based on comparable of $1,853 net per week 6. Based on earning capacity of $625 gross per day ($3,125 gross per week) 42,695.50 Suggested buffer based on (say) $100 per week, less 15% for vicissitudes $100 x 502.3 x 0.85 NB. S151I WCA 7. Future superannuation at 11% 4,696.50 8. Domestic assistance Nil TOTAL: 311,591.70"

Non-economic loss 303Section 16 of the Civil Liability Act governs the assessment of non-economic loss in respect of Baden and Brambles, providing that no such damages may be awarded unless the severity of the non-economic loss is at least 15% of a most extreme case. 304Mr Smith claimed non-economic loss from Baden and Brambles, calculated at 35%, given the evidence of the overall effect of his injuries and their consequences. Brambles argued that this was but an ambit claim, not reflective of his ability to get on with his life. 305In my assessment of the evidence to which I have referred, Mr Smith must be assessed as having suffered a 32% impairment. True it is that he has made commendable efforts to adjust his life to the injuries which he has suffered. Nevertheless, the ongoing effects which those injuries have had upon him, his health and well being and how he is able to live his day-to-day life, established that the result has been that he suffered a very substantial impairment, which is unlikely to improve. Economic Loss 306Damages for economic loss sought against Baden and Brambles was calculated at pre-injury agreed earnings of $1,140 net per week and the current agreed wage of a crane driver, $1,850. For Mr Smith reliance was placed on the principles discussed in Kallouf v Middis [2008] NSWCA 61, where it was observed at [50] that the principles to be applied are those discussed in Rabay v Bristow [2005] NSWCA 199: "[73] Compensation for loss of earning capacity is awarded because the diminution in an injured plaintiff's earning capacity 'is or may be productive of financial loss': Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347. It is incumbent upon the plaintiff to prove the loss for which compensation is claimed ( Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412) but, conversely, it is not incumbent upon the injured plaintiff to prove what employment he or she 'is not incapacitated from performing'. It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person : H Luntz , Assessment of Damages for Personal Injury and Death (4th ed) at 118 [1.9.20]. [74] The primary judge was entitled to take into consideration the fact that the respondent had an employment history which demonstrated a consistent pattern of full time employment in work which might fairly be described as having been of a heavy manual nature: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at 143 per Gleeson CJ, Gummow, Kirby and Hayne JJ. .... [79] The assessment of damages for future economic loss involves reference to future or hypothetical events. It was described as 'the process of estimation of possibility' in Malec v J C Hutton Pty Limited [199] HCA 20; (1990) 169 CLR 638 at 643 per Deane Gaudron and Gummow JJ. This is, as Santow JA has pointed out, 'necessarily an imprecise matter of estimation, carried out within broad parameters ...': Donald v McKeown [2004] NSWCA 285 at [38]." (emphasis added) 307So far as Gillespies is concerned, s 151I of the Workers Compensation Act must be taken into account. It provides: "151I Calculation of past and future loss of earnings (1) In awarding damages, the court is to disregard the amount (if any) by which the injured or deceased worker's net weekly earnings would (but for the injury or death) have exceeded the amount that is the maximum amount of weekly payments of compensation under section 35 (even though that maximum amount under section 35 is a maximum gross earnings amount). (2) The maximum amount of weekly payments of compensation under section 35 for a future period is to be the amount that the court considers is likely to be the amount for that period having regard to the operation of Division 6 of Part 3 (Indexation of amounts of benefits). (3) This section applies even though weekly payments of compensation to the worker concerned are not subject to the maximum amount prescribed under section 35." Past economic loss 308What Mr Smith has in fact earned since the accident is not in issue. It was agreed that Mr Smith's pre-injury earnings were $1,140 net per week. On his evidence, even in 2003, he earned up to $2,000 per week gross, because he worked regular overtime. On Mr Gillespie's evidence as to Mr Smith's capacity as a crane operator, that he was capable of earning what a crane driver employed at Gillespies earns, but for the injury, must be accepted. That is a capacity which he lost at the time of his injury, albeit he now still has a capacity for part-time work, in a different occupation. 309The loss claimed was $371,308.75, calculated by reference to pre-injury earnings of $1,140 up to 30 June 2010 and $1,850 thereafter, against actual wages earned (a total of $284,700), plus $86,608.75 weekly compensation paid since the accident by Gillespies. 310Mr Smith's schedule of past income is relevant to that claim. It showed earnings of: "Schedule 1 PERIOD POSSIBLE ACTUAL DIFFERENCE WEEKS LOSS NET WAGE NET WAGE 3/11/03 - 1,140* 683 457 34 15,538 30/6/04 1/7/04 - 30/6/05 1,140 538 602 52 31,304 1/7/06 - 30/6/06 1,140 777 363 52 18,876 1/7/06 - 30/6/07 1,140 565 575 52 29,900 1/7/07 - 30/6/08 1,140 586 554 52 28,808 1/7/08 - 30/6/09 1,140 146 994 52 51,688 1/7/09 - 30/6/10 1,140 272 868 52 45,136 1/7/10 - 26/5/11 1,850** 500 1,350 47 63,450 (estimated) $284,700

• From the 2003 Notice of Assessment ** The agreed current wage for a crane driver, operator if still working as such" 311On Gillespies' case, past economic loss was $105,690. The calculations were, in part, based on actual income averaged out to a weekly figure of $765.66 net per week. In respect of the period from I July 2008, the loss was assessed at $100 per week, that being the loss its expert, Dr Hall, had identified. The result was that the loss per week was calculated as: "Past economic loss : Pre-Injury earnings of $1,140 net per week Period 1 : From 3 November 2003 to 30 June 2008 - $374.34 x 242 weeks - $90,590.28 Period 2 : From 1 July 2008 to 30 June 2009 $100 x 52 = $5,200 Period 3 : From 1 July 2009 to 30 June 2010 $100 x 52 = $5,200 Period 4 : From 1 July 2010 to 23 May 2011 $100 x 47 = $4,700 NB . S151I WCA " $105,690.00 312These calculations as to potential earning capacity had to be reduced in accordance with the provisions of s151I of the Workers Compensation Act in Gillespies' case. 313For Brambles it was argued that the evidence of the actual earnings of a crane driver ought to be approached with caution, given individual propensities for overtime and differing individual cranes used in industry, different to that operated by Mr Smith for Gillespies. It also argued that it was relevant that during the period 1 July 2007 to 30 June 2008, the plaintiff's actual wages were $942 per week. This should be accepted as evidencing his capacity to earn, despite falls in income, when he changed his career path. 314Also to be considered is that the earning capacity assessment relied on by Gillespies accepted that Mr Smith was not fit for his pre-injury work and that he was not able to perform a reasonable amount of overtime, or full-time work. Only 30 hours per week of sedentary work involving no lifting was suggested to be suitable. 315The work options identified were training and development professional; occupational health and safety adviser; and safety inspector. Only 18%, 16% and 10% of such positions respectively were assessed to be part time, with gross assessed remuneration of $1,266.32, $1,314.47 and $1,245. The vacancies identified in such positions, respectively were 8, 94 and none. It was also noted that the positions identified might involve a level of function inconsistent with that assessed for Mr Smith. Nor was it apparent that any of the positions so identified provided for part-time work, at the number of hours Mr Smith was assessed as being able to perform. The two sample advertisements provided did not refer to such part-time work being available. 316That Mr Smith experienced difficulties in performing the full-time work which he worked up to over time, while employed to at Melrose Cranes must be accepted. That he worked to obtain further qualifications, in order to establish a business in which he could be employed to perform part-time work of a kind which he could manage, given his ongoing physical difficulties, must also be accepted. He accepted that it was a business which had the capacity to grow, but that depended on his physical capacity to manage further work. I have no reason to reject that evidence. 317In those circumstances, it seems to me that it must be concluded that even though while in employment in the business which he established, that Mr Smith has not been able to generate income at the same level as that which he previously generated, even in his employment at Melrose Cranes, that it has not been established that the claim advanced for Mr Smith, in respect of past losses has no proper basis on the evidence. To the contrary, I am not able to accept that the defendants have met the onus which fell upon them, to establish that Mr Smith could have done work which would have generated the earnings which they claimed. 318The maximum amount is as specified in the submission advanced for Gillespies (see MFI 9). Its share of this aspect of damages, must be reduced, where it exceeds those amounts. That is a mathematical exercise which needs to be undertaken. Future economic loss 319Section 13 of the Civil Liability Act, which applies to Baden and Brambles, provides: "13 Future economic loss-claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 320Mr Smith's claim was explained to be for $512,346, calculated on the basis of a loss of $1,200 per week, by reference to current net earnings of $600 per week and an earning capacity of $650 and the agreed rate for Gillespies' crane drivers, for 13 years to age 67, he now being aged 54 years. This was accepted as being 'at the top of the range'. Superannuation also needed to be added. 321Brambles argued that Mr Smith's present earnings would not be equated with his capacity to earn. While it was to his credit that he had started up a new business which he was building up, account would be taken of tax benefits flowing from working as a self-employed person in a family company. In the circumstances, gross earnings would be a fairer benchmark of capacity, given that they were shared with his wife, although it was accepted that money had to be spent, in order for those earnings to be generated. As to superannuation, account would be taken of the fact that by keeping his personal income down, that would reduce his superannuation contributions, as a matter of choice. That was not a matter of loss. If Mr Smith's daily rate was considered, it was argued that his earning capacity did not differ much to that of a crane driver. 322It was also argued that despite Mr Smith's aim to work to 67, consideration would be given to the evidence that only one crane driver in Gillespies' employ was still working at age 60. 323For Gillespies it was argued that this assessment would proceed on the basis that on his own evidence, Mr Smith could sometimes earn between $600 and $650 gross per day (at rates ranging from $60 to $80 per hour). Thus, his earning capacity must be assessed at $3,125 per week. In those circumstances a buffer of say $100 per week, would be awarded, less 15% for vicisitudes. 324It is difficult to accept this calculation, notwithstanding what Mr Smith actually earns some days. Having in mind the expert evidence led as to his capacity to work only 30 hours per week, even that approach would only bring his earning capacity in the range of $1,800 to $2,400 per week gross. 325Mr Smith's earnings are unquestionably not only affected by the part-time hours he can manage given his health, but also by the way in which he and his wife operate the company of which he is an employee and the work it can attract. The income it generates comes from the hours which Mr Smith works and the rates it is able to command for his work. It was also accepted that there are expenses involved in the running that business such as expenses of running a vehicle, in respect of the work his wife performs, the accounting services utilised and Mr Smith undertaking various training. 326In all of these circumstances, it seems to me that the evaluation of future earnings may not proceed only on the basis of the actual earnings derived by Mr Smith from the company's business alone. Some consideration must be given to his potential earning capacity. The evidence that he has the prospect of employment, which if it could be obtained, would also generate significantly greater income than the business had recently generated, may also not be ignored, although his age and the availability of suitable part-time positions, is also a factor which must be considered. 327The calculation was pressed for a period to age 67. On the evidence, it does not seem likely that but for the injury Mr Smith would then still have been in employment as a crane driver. Nevertheless, it is evident from the work which he performed at Melrose Cranes and that which he now performs, that Mr Smith could have continued working past 60, as he wished to do, albeit in different and less remunerative employment. 328In all of those circumstances, it seems to me that the calculation must be undertaken to age 67 and that it must be approached on the basis of a buffer, as the defendants accepted was available in the circumstances. That buffer is to be calculated at the rate of $500 per week to age 60 and thereafter, at the rate of $300 per week thereafter to age 67. There must also be a 15% discount for vicissitudes and an amount in respect of superannuation. I do not accept that the possibility that Mr Smith could reduce any amount he has to contribute in respect of superannuation, because of his business arrangements, should lead to any reduction in this component. Future Medical expenses 329An amount of $20,000 was sought on the basis of Dr Horley's reports, which suggested a possible future need for further surgery and to cover visits to a general practitioner, and ongoing medication, assessed on a conservative treatment basis. 330Gillespies argued that the sum would be calculated as $10,912.20, having regard to the cost of an ongoing need for panadeine forte and laxatives and attending a GP twice per annum, for life; Mr Smith having a life expectancy of 31.5 years. 331In my assessment the amount proposed by Gillespies is too low, having in mind Mr Smith's ongoing medical needs, which on the evidence includes various medication, including anti-inflammatories, ongoing GP treatment and Dr Harrison's assessment that he would benefit from a further procedure on his ankle, to address discomfort caused by pinning. 332Doing the best I can on the evidence, I assess future medical needs at $18,000. Paid domestic assistance 333Section 15B of the Civil Liability Act applies to Baden and Brambles. 334There was no claim for past assistance for lawn mowing, some of which had been paid for and some undertaken by Mr Smith's son. Mr Smith's medical advice was that in future he would need assistance in attending to normal maintenance of his house and lawn mowing. The claim pressed was for two hours per week at $32 per hour for 32 years, that being his life expectancy. 335For Brambles it was argued that 32 years was too long, given the plaintiff's evidence, which included that he would downgrade his house, as he got older. The claim made would result in overcompensation. 336It seems to me that submission must be accepted. In my assessment this aspect of the damages should be calculated on the basis of 28 years.

Orders 337For the reasons given, I find for the plaintiff and propose to make orders against the defendants, in accordance with the terms of this judgment. The usual order as to costs would be that they follow the event. If the parties wish to be heard on costs, they should approach. 338Various calculations still need to be undertaken, to give effect to the judgment. The parties should confer and bring in short minutes of the orders reflecting this judgment. They have liberty to approach in the event of disagreement as to those calculations.

TABLE OF CONTENTS paragraph Judgment ....................................................................................................................................... 1 Extension of time - Gillespies ......................................................................................................... 10 The issues identified by the parties .............................................................................................. 14 The factual background .................................................................................................................15 The cause of the accident ............................................................................................. 15 Operation of the crane .................................................................................................... 25 The documentary evidence ............................................................................................ 34 The training and instruction given to Mr Smith .............................................................. 48 What information did Baden, Brambles and Gillespies provide?.................................... 60 The expert evidence ..................................................................................................................... 67 The analogies drawn with a car .................................................................................................. 104 The case against Baden ............................................................................................................. 112 The duty of care ............................................................................................................. 118 Breach ........................................................................................................................... 149 Causation ...................................................................................................................... 155 The case against Brambles ........................................................................................................ 163 The duty of care ............................................................................................................. 166 Breach ........................................................................................................................... 205 Causation ..................................................................................................................... .213 The case against Gillespies 224 Breach .......................................................................................................................... 225 Causation...................................................................................................................... 249 The Occupational Health and Safety Act 2000 regulations ........................................................ 256 Contributory negligence - Mr Smith ............................................................................................ 258 The cross-claims ........................................................................................................................ 267 Mr Smith's injuries ...................................................................................................................... 277 Mitigation ................................................................................................................................... 286 Section 151z of the Workers Compensation Act 1987 ............................................................... 290 Damages .................................................................................................................................... 298 Non-economic loss ........................................................................................................ 302 Economic Loss............................................................................................................... 305 Past economic loss......................................................................................................... 307 Future economic loss .................................................................................................... 318 Future Medical expenses............................................................................................... 328 Paid domestic assistance .............................................................................................. 332 Orders ......................................................................................................................................... 336 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2011