Snorkel Elevating Work Platforms Pty Ltd and Snorkel Elevating Work Platforms Limited v Borren Metal Forming Limited [2010] ACTCA 23

Mowbray and Another v Merryweather [1895] 2 QB 640

Florida Hotels Pty Limited v Mayo and Another (1965) 113 CLR 588

Roads and Traffic Authority (NSW) v Fletcher and Another (2001) 33 MVR 215

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ACTCA 30-2008

No. SC 157 of 1999

Judges: Gray P, Refshauge and Cowdroy JJ

Supreme Court of the ACT

Date: 14 September 2010

IN THE SUPREME COURT OF THE )

) No. ACTCA 30-2008

AUSTRALIAN CAPITAL TERRITORY ) No. SC 157 of 1999

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: SNORKEL ELEVATING WORK PLATFORMS PTY LIMITED (ACN 003 724 141) and SNORKEL ELEVATING WORK PLATFORMS LIMITED

Appellants

AND: BORREN METAL FORMING LIMITED

Respondent

ORDER

Judge: Gray P, Refshauge and Cowdroy JJ

Date: 14 September 2010

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.

IN THE SUPREME COURT OF THE )

) No. ACTCA 30-2008

AUSTRALIAN CAPITAL TERRITORY ) No. SC 157 of 1999

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: SNORKEL ELEVATING WORK PLATFORMS PTY LIMITED (ACN 003 724 141) and SNORKEL ELEVATING WORK PLATFORMS LIMITED

Appellants

AND: BORREN METAL FORMING LIMITED

Respondent

Judge: Gray P, Refshauge and Cowdroy JJ

Date: 14 September 2010

Place: Canberra

REASONS FOR JUDGMENT

THE COURT

1. Snorkel Elevating Work Platforms Pty Limited (Snorkel NSW) and Snorkel Elevating Work Platforms Limited (Snorkel NZ) (together ‘the appellants’) appeal the decision of Higgins CJ (the trial judge) delivered on 27 November 2008 in which his Honour entered judgment in favour of the respondent, Borren Metal Forming Limited (Borren). The proceedings have had an unusual history.

2. In the matter of Michael Gerard Hay v Snorkel Elevating Work Platforms Pty Limited and Others (SC 157 of 1999), the plaintiff claimed damages for personal injuries resulting from an accident on 22 October 1997. The injuries were sustained when an elevating platform of a mobile hoist, commonly known as a ‘cherry picker’ (hereafter referred to as ‘the hoist’), upon which the plaintiff was working collapsed. The immediate cause of the collapse was the lateral movement and eventual displacement of a pivot pin from the eye of the levelling rod. The displacement allowed the levelling rod to swing free and the arm of the hoist to collapse.

3. The plaintiff instituted proceedings against seven defendants. One defendant was the manufacturer of the hoist, namely Snorkel NZ. Another was Snorkel NSW which serviced the hoist and was the Australian supplier of the hoist. Borren is the New Zealand manufacturer of a component of the hoist known as a keeper pin.

4. The late Connolly J heard all of the evidence in the plaintiff’s claim. Connolly J assessed the damages of the plaintiff at $7,263,756.71: see Hay v The Nominal Defendant and Others [2006] ACTSC 115. Subsequent to this, liability was consented in favour of the plaintiff by Snorkel NSW and Snorkel NZ in the lesser amount of $6,250,926.02.

5. Both Snorkel NZ and Snorkel NSW claim contribution against Borren in respect of their liability to the plaintiff. Snorkel NZ claim contribution in contract as well as tort. Snorkel NSW’s claim is for contribution in tort only. The evidence in respect of the cross-claims was heard by the late Connolly J and written submissions were filed. However, due to his Honour’s untimely death, the issues between the cross-claimants were never determined by him.

6. The parties to the contribution proceedings thereafter entered into consent orders dated 5 October 2007, paragraph three of which provided: That a new judge or acting judge (‘the trial judge’) be appointed by consent of the parties to determine all issues in dispute in these proceedings upon the tender of the whole of the transcript of the proceedings before His Honour Justice Connolly, and all exhibits tendered during the proceedings, the hearing of any further evidence pursuant to order 4 and after reviewing any further written submissions and hearing oral submissions from counsel for the parties on a date to be fixed.

7. The proceedings came on before the trial judge who, in accordance with the agreement, determined the claims on the evidence adduced before the late Justice Connolly. Submissions were made to the trial judge by both parties extending over four days of hearing. The trial judge delivered his judgment on 27 November 2008. The appeal before this Court arises from the trial judge’s determination. THE HOIST

8. At the outset, it is instructive to describe the operation of the hoist. The components of the hoist which are relevant for the purposes of this judgment are the keeper pin, pivot pin, bush and levelling rod. A large aperture described as an ‘eye’ was positioned at one end of the levelling rod. Through such eye slotted a thick, cylindrical pivot pin. The diameter of the pivot pin was not as wide as that of the eye of the levelling rod as the pivot pin was surrounded by a ring which was known as a bush. The bush slotted between the pivot pin and the eye of the levelling rod. The bush, being coated with Teflon, had very low frictional properties and was designed to allow the levelling rod to rotate freely around the pivot pin and to ensure that the pivot pin did not rotate.

9. The keeper pin which is the subject of these proceedings slotted through an eye at one end of the pivot pin. One end of the keeper pin was bolted to the clevis plate (being part of the hoist structure) to secure the keeper pin so that it remained in place to restrain lateral movement of the pivot pin, akin to the operation of a split pin. That is, to prevent movement which would cause the pivot pin to be displaced out of the eye of the levelling rod and cause the levelling rod to be able to detach from the hoist structure. In fact it was such movement which occurred, and resulted in the hoist’s failure. RELEVANT FINDINGS

10. In summary, the trial judge found that the keeper pin snapped and allowed the pivot pin to work loose from the eye of the levelling rod causing the hoist to collapse; that the keeper pin was made of steel which was deficient in carbon; that the lack of carbon in the keeper pin had the consequence that the keeper pin was only half the tensile strength of the AISI 4140 steel which was specified for its manufacture; that in normal operation a keeper pin made to specification would not fracture; that a failure to inspect the hoist properly was not a novus actus interveniens; and that because it was unknown what force broke the keeper pin, nor what force the keeper pin could be expected to withstand, it was impossible to find that the broken keeper pin was the cause of the hoist’s failure.

11. In their contribution claim the appellants alleged that Borren had made the keeper pin from steel having a lower carbon content than that specified by them. Prior to 1991, early batches of keeper pins manufactured by Borren for Snorkel NZ were found to be too brittle and the specification for their manufacture was thereafter amended by Snorkel NZ to require that the steel used in the manufacture of such pins was to accord with AISI 4140 ‘normalised from 500° C’. After 1992 there was no complaint of pin failure.

12. The trial judge found that Mr Borren, the principal of Borren, did not dispute that the description of the metal to be used in the manufacture of the keeper pins after 1991 was AISI 4140 heat treated to 500° C. His Honour found that the agreement for the supply of keeper pins after 1991 was to supply keeper pins complying with such description.

13. The trial judge then considered whether the keeper pins supplied by Borren to Snorkel NZ were supplied in breach of Borren’s contractual obligation. His Honour accepted the evidence of a metallurgist, Dr Yeomans, that the tensile strength of the failed keeper pin was 550 MPa compared with 775 to 1100 MPa for a keeper pin made of AISI 4140 steel, and that such low strength of the failed keeper pin resulted from low carbon in the steel. His Honour concluded that the keeper pin did not conform to the specification because of its low tensile strength. Accordingly, his Honour found a breach of contract between Snorkel NZ and Borren had been established. Additionally, his Honour found that Borren was negligent in supplying the keeper pin which had a lower tensile strength than a standard keeper pin.

14. Upon investigation it was established that the keeper pin distorted as the result of being subjected to rotational forces and that it fractured close to its base. The fractured end of the keeper pin showed that it was rusted which suggested that it had been broken some time before the accident. The end of the keeper pin which broke off was never recovered.

15. The next issue determined by his Honour was whether the fracture of the pin was the cause of the collapse of the platform. Such question involved a consideration whether the collapse resulted from the pin lacking its full-strength or whether friction between the pivot pin and the bush inside the levelling arm eye increased to such an extent that the load on a keeper pin manufactured to the requisite specification would have failed.

16. Various causes were advanced for the possible increase in friction which had obviously developed between the pivot pin and the eye of the levelling rod. One possibility was that because of the absence of a plastic spacer or washer, rust had developed on the inside of the surfaces of the pivot pin and levelling arm. His Honour also considered the fact that the platform had been inspected on 16 October 1997, namely six days before the accident, and no defect was detected. However, his Honour found that it was more probable than not that the keeper pin had already fractured by the time of that inspection.

17. His Honour concluded that the inspection, albeit inadequate, did not break the chain of causation if the breach of contract and negligence referred to above had ultimately led to the failure of the pivot pin.

18. The trial judge concluded (at [35]-[36]) in his judgment: There is an insurmountable gap in Snorkel’s evidence. There is no evidence of the force designed to be exerted upon the keeper pin, nor of the safety margin, if any, allowed for a pin to be fatigued or of lesser strength than optimal strength. It may be assumed, from the lack of reported failures, that in normal operation the normally made keeper pins would not fracture. However, it clearly would not be expected to withstand a “binding” of the pivot pin to the bush of the levelling arm, whether the fault lay with the pivot pin or the bush. It is simply impossible to conclude that a machine functioning within its normal parameters would not snap a full-strength keeper pin but would snap one that was (approximately) half strength. It does not appear that Snorkel used anything other than “hit or miss” experimentation to fix on the specifications for the keeper pins. THE AMENDED NOTICE OF APPEAL

19. The appellants challenge the trial judge’s findings relating to causation, asserting, inter alia, that the wrong test was applied and claiming that his Honour’s approach in determining whether the under-strength keeper pin was the relevant cause of the accident should not have been approached on such basis. The primary basis of the appeal is that his Honour failed to apply the correct legal principles as to causation both in relation to tort and contract.

20. The appellants submit that his Honour erred in finding that the onus remained on them to prove that “a machine functioning within its normal parameters would not snap a full-strength keeper pin but would snap one that was (approximately) half strength”. Conversely, it is submitted that his Honour erred in not finding that the onus shifted to Borren to prove that a machine functioning within normal parameters would snap a full-strength keeper pin.

21. The appellants submit that the trial judge made contradictory findings in finding that in the normal operation of the hoist that keeper pins would not ordinarily break while later finding that there was no evidence that a normally functioning hoist would not snap a full-strength pin.

22. The appellants also appeal some of the factual findings of the trial judge such as his Honour’s findings: that the keeper pin had broken several months before the accident; that there was no evidence of the force designed to be exerted on the keeper pin; and that there was no evidence of the safety margin, if any, in the design of the pin.

23. The appellants submit that the trial judge did not provide adequate reasons for his findings. Further, it is submitted that his Honour did not analyse and review the expert evidence relating to causation. The appellants refer to the judicial obligation to state reasons for a decision as considered by the New South Wales Court of Appeal in Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 (at 135-138). NOTICE OF CONTENTION

24. Borren submits that the trial judge made several errors of fact or law. Such errors relate in general to the function of the keeper pin, whether the contract for the sale of the pin was a sale by sample, whether a certificate of the metallurgist should have been admitted into evidence, whether the lack of proper inspection of the hoist was a novus actus interveniens and whether there was a duty of care owed by Borren to the appellants. GROUNDS OF APPEAL

25. As will become apparent, the outcome of our consideration of the appellants’ grounds of appeal will render consideration of most of the Notice of Contention otiose. Necessarily, consideration of the appellants’ grounds of appeal will proceed upon the assumption that his Honour was correct in finding that the keeper pin was under-strength, that this was due to it not being made to specification AISI 4140, and that therefore the claims against Borren as to both negligence and breach of contract were made out (though, of course, leaving the question of causation to be considered).

26. We will first consider the issues of causation in tort and contract as this is the critical issue of the appeal and we will then consider the appellants’ grounds of appeal dealing with the factual findings of his Honour. Causation in tort

27. The appellants submit that, subject to Borren’s Notice of Contention, “the appeals of Snorkel NZ and Snorkel NSW will succeed if the findings as to causation can be overturned”. The appellants submit that his Honour provided no apparent consideration to their submissions concerning the applicable principles of causation relating to tort and gave no adequate reasons for his decision.

28. At [29] of his Honour’s judgment his Honour said: However, there is an issue raised as to whether that breach of contract or negligence was relevantly a cause of the injury to the plaintiff.

29. At [30] his Honour said: Essentially, that raises an issue as to whether the breaking of the pin was because of its lack of full strength or whether the collapse occurred because the pivot pin bound to the bush inside the levelling arm eye, perhaps because one of the plastic spacers was missing allowing rust to develop inside the surfaces of the pivot pin and arm but, in any event, because there was such an increase in the co-efficient of friction between the surfaces that the load on the keeper pin increased to the point where even a full-strength keeper pin would snap. Then it was a matter only of time for the pivot pin to work loose and the levelling arm to collapse.

30. The appellants submit that his Honour approached the causation issue as an either/or matter. That is, his Honour asked himself whether the pin broke because of its lack of strength or whether the collapse occurred because of the pivot pin binding to the bush inside the levelling arm eye. The appellants submit that the correct approach was to ask whether the failure of Borren to provide a keeper pin to standard AISI 4140 was a cause of the accident, and that being a cause is sufficient to find causation and ground a contribution claim against Borren.

31. The appellants rely upon the authorities of Bennett v Minister of Community Welfare (1992) 176 CLR 408 (Bennett) and Chappel v Hart (1998) 195 CLR 232 (Chappel) in support of their proposition that Borren is liable since the finding that the pin was not made according to specification (namely that the steel was approximately 50% of specified tensile strength) had the consequence that the onus of proof shifted to Borren requiring Borren to show that its negligence had no effect or that the accident would have happened anyway. As will become apparent, because no one knows what force caused the pin to break, it would be impossible for Borren to ever prove such matters. FINDING ON CAUSATION IN TORT ‘Prima Facie Causation’

32. The trial judge found that there existed an insurmountable gap in Snorkel’s evidence: see [35] of his Honour’s judgment reproduced at [18] above.

33. In March v E. & M.H. Stramare Pty Limited and Another (1991) 171 CLR 506 (March v Stramare) the High Court of Australia considered the issue of causation as a question of fact. Mason CJ observed (at 514): Nonetheless, the law’s recognition that concurrent or successive tortious acts may each amount to a cause of the injuries sustained by a plaintiff is reflected in the proposition that it is for the plaintiff to establish that his or her injuries are “caused or materially contributed to” by the defendant’s wrongful conduct… Generally speaking, that causal connexion is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent…

34. His Honour then concluded (at 515): It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments… However, this approach to the issue of causation (a) places rather too much weight on the “but for” test to the exclusion of the “common sense” approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact.

35. Such authority is the unimpeachable statement of the law of causation in Australia. However, the appellants have relied upon a line of authority which they say creates a prima facie inference of causation if certain criteria are met. Such inference, if made out, would appear to render an analysis under the rubric of March v Stramare unnecessary or, to put it another way, such inference satisfies the requirements of March v Stramare causation. In Bennett Gaudron J said (at 420-421): Thus, in the case of a statutory duty, a “breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty”. And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury [that is, satisfies the March v Stramare test]. [Footnotes omitted.]

36. In Chappel, the High Court considered both March v Stramare and the observations in Bennett when it considered whether a doctor’s negligent failure to advise a patient of the risk of physical injury itself materially contributed to her injury. The patient had specifically inquired of the risk in question and would not have proceeded with the procedure had the patient known of the risks. The evidence disclosed that the risk would have been reduced had the operation been performed by the most experienced surgeon available.

37. In Chappel, McHugh J said (at [34]): … the onus of proving that the failure to warn was causally connected with the plaintiff's harm lies on the plaintiff. However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists.

38. To similar effect, in Naxakis v Western General Hospital and Another (1999) 197 CLR 269 (Naxakis) Gaudron J, adopting the observations of McHugh J in Chappel (at 244-245) said (at [31]): For the purposes of the allocation of legal responsibility, “[i]f a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring”. And in that situation, the trier of fact – in this case, a jury – is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event. [Footnotes omitted.]

39. The appellants’ focus on such authorities oversimplifies the law regarding so called ‘prima facie causation’. There is ample authority in support of the proposition that such ‘prima facie causation’ as propounded by the appellants is not what their Honours meant by those statements as outlined above. For example, in Flounders v Millar (2007) 49 MVR 53 (Flounders) Ipp JA said (at [36]): A mechanical application of a rule that the evidential onus shifts once a breach of duty has occurred followed by injury within the area of foreseeable risk is in conflict with these basic principles of the common law. In many cases it will simply not be possible for the defendant to discharge such an onus because the defendant was not present when the accident occurred or the injury was caused, and has no knowledge of the circumstances that prevailed at the time. A rule in these terms would introduce a form of liability that in many cases would be absolute and, in effect, do away with the requirement of the element of causation. That would be such a radical change to the law that, for it to be recognised, it must be stated unequivocally by the High Court (and, as the cases I have cited explain, that has not occurred).

40. His Honour made such statement after an extensive discussion (at [4]-[33]) of authorities dealing with such issue, including those mentioned above and the decision of Dixon J in Betts v Whittingslowe (1945) 71 CLR 637 (Betts) which is the foundation of the principle in question. The reasoning of Ipp JA in Flounders has been recently approved in Yarrabee Coal Co Pty Ltd and Another v Lujans (2009) 53 MVR 187 (at [247]), Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (2008) 15 ANZ Insurance Cases 61-780 (at [240]) (Baulderstone) and Gett v Tabet (2009) 254 ALR 504 (Gett) (at [254]), a decision of the New South Wales Court of Appeal. An appeal to the High Court from the decision of the Court of appeal was dismissed: see Tabet v Gett (2010) 84 ALRJ 292 (Tabet v Gett). See also this Court’s decision in Huen v Hyland [2004] ACTCA 5 (at [47]-[49]). The New South Wales Court of Appeal in Baulderstone said (at [240]): ... Whilst in some cases a breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify a factual inference about a causal link, that is not a rule of law. It is an aspect of an available process of drawing of conclusions about causation… The New South Wales Court of Appeal in Gett also pointed out that the recent High Court authority of Roads and Traffic Authority v Royal and Another (2008) 245 ALR 653 (Royal), confirms the reasoning of the abovementioned decisions. For example, in Royal Kiefel J said (at [143]-[144]): It remains a requirement of the law that a plaintiff prove that a defendant’s conduct materially caused the injury. Nothing said in Betts detracts from that requirement, which forms the basis for the restatement of the test of causation in March... No decision of this Court holds that there is that equivalence or some lessening of the requirement of proof. As the majority in Bennett observed, they are questions which have not been considered by this court. The present state of authority does not accept the possibility of risk of injury as sufficient to prove causation. It requires that the risk eventuate. Kitto J in Dunkel said that one “does not pass from the realm of conjecture into the realm of inference” unless the facts enable a positive finding as to the existence of a specific state of affairs. Spigelman CJ pointed out in Seltsam, with respect to an increased risk of injury, that the question is whether it did cause or materially contribute to the injury actually suffered. This enquiry is consistent with the commonsense approach required by March.

41. Further, Gummow, Hayne and Heydon JJ said (at [33]): In the first place, Gaudron J’s reasoning proceeds on the assumption that a chain of causation has been established: that assumption is not made out here.

42. Highly relevant for the current proceedings is the discussion of Ipp JA in Flounders (at [32]). His Honour, discussing the reasoning of Dixon J in Betts said: Thus, the facts in Betts and the observations by the members of the High Court in that case indicate that the evidence supported a finding that the inference leading to liability on the part of the defendant was more probable than any other inference. Dixon J’s remarks must be seen in this context. In particular, it is difficult to suggest that Dixon J was intending to say anything that would support a theory that involved finding causation to be established where the plaintiff fails to prove that the inference in favour of its case is more probable than other inferences available from the evidence.

43. His Honour went on to say (at [35]): It remains necessary for a plaintiff, relying on circumstantial evidence, to prove that the circumstances raise the more probable inference in favour of what is alleged. The circumstances must do more than give rise to conflicting inferences of an equal degree of probability or plausibility. The choice between conflicting inferences must be more than a matter of conjecture. If the court is left to speculate about possibilities as to the cause of the injury, the plaintiff must fail.

44. Our conclusions are reinforced by the recent decision of the High Court of Australia in Amaca Pty Ltd v Ellis; The State of South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis (2010) 240 CLR 111 (Amaca Pty Ltd). In that appeal, the High Court considered the question whether the respondent who was the executor of a deceased person’s estate, had established at trial that it was more probable than not that exposure to respirable asbestos fibres was a cause of the deceased’s death from lung cancer. No scientific or medical examination could establish the cause of the deceased’s cancer. The evidence showed that exposure to asbestos may have been a cause of cancer but the deceased had also been a heavy smoker for more than 26 years before he was diagnosed with lung cancer. The evidence also showed that most sufferers of lung cancer have smoked, some had been exposed to asbestos, some had both smoked and had asbestos exposure, and some had neither been exposed to asbestos nor smoked. Further, not everyone who had smoked, not everyone who had been exposed to asbestos, and not everyone who had both smoked and been exposed to asbestos, developed lung cancer.

45. The High Court observed (at [5]) that the medical and scientific examination could not determine whether exposure to respirable asbestos fibres was a cause of the deceased’s cancer. The trial judge had not distinguished between the individual defendants but rather had approached the question of causation on the basis of a combined causative effect. The High Court said (at [40]): To approach the matter in this way diverted attention from whether individual defendants were to be found liable. It treated the relevant question as being: why did Mr Cotton develop lung cancer? But as pointed out earlier in these reasons, the relevant question, to be asked separately in respect of each defendant, was: is it more probable than not that the negligence of the defendant was a cause of Mr Cotton's cancer? The difference between the questions is important. The litigation sought to attribute legal responsibility for Mr Cotton’s cancer and death. Asking why Mr Cotton developed lung cancer could be understood as asking what aspects of his history would be considered significant, for their purposes, by a clinician, an epidemiologist, or an occupational health expert.

46. The High Court further said (at [42]): As Martin CJ rightly pointed out in his dissenting opinion in the Court of Appeal, the absence of contribution or apportionment proceedings was not to the point in considering the question of causation. The trial judge was required to decide the plaintiff's claim against each defendant by deciding whether the negligence of that defendant was a cause of Mr Cotton’s cancer. Deciding only whether the aggregate exposure to asbestos was a cause of Mr Cotton's cancer did not answer the question about the particular responsibility of each defendant.

47. The High Court concluded that no scientific or medical examination could determine with certainty what caused the deceased’s cancer. It stated (at [70]): The answer to the question can be expressed in several different ways. All depend upon the basic and unpalatable fact that no scientific or medical examination can now say, with certainty, what caused Mr Cotton’s cancer or lung cancer in any other particular case. As explained at the outset of these reasons, despite this uncertainty, the courts must, and do, “reduce to legal certainty [a question] to which no other conclusive answer can be given”. The courts do that by asking whether it is more probable than not that X was a cause of Y. Saying only that exposure to asbestos may have been a cause of Mr Cotton's cancer is not a sufficient basis for attributing legal responsibility. Observing that a small percentage of cases of cancer were probably caused by exposure to asbestos does not identify whether an individual is one of that group. And given the small size of the percentage, the observation does not, without more, support the drawing of an inference in a particular case. The paradox, if there be one, arises from the limits of knowledge about what causes cancer.

48. More recently in Tabet v Gett, Heydon J in reference to a medical negligence issue, referred (at [84]) to the absence of any finding choosing between two possibilities concerning the time when a patient had sustained brain damage. His Honour (at [97]) referred to the position as “purely abstract and academic”, because there was no answer to the question which would assist the parties: see also Kiefel J (at [124], [136] and [143]).

49. In the current proceedings, we are left with only conjecture as to the cause of the accident, in circumstances analogous to those considered by the High Court in Amaca Pty Ltd and Tabet v Gett. The cause might have been because the pin was under-strength, but in the absence of knowing what force the keeper pin was subject to, it may not have been. The cause might have been the under-strength keeper pin, but it might also have been the binding of the bush causing the rotation of the pivot pin which would have broken any keeper pin, no matter how strong. Even though there is evidence that the bush was found to be serviceable, no technical evidence exists to establish the cause of the rotation of the pivot pin which resulted in the distortion and failure of the keeper pin. Such uncertain factual matrix is a highly problematic circumstance upon which to apply the prima facie inference. This is because the test of Gaudron J in Bennett and Naxakis is predicated on an assumption that it may be possible to prove “that the [alleged negligent] conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event” (see Gaudron J in Naxakis (at [31])). This assumption does not detract from the requirement for there to be established the connection between the increase of risk and the damage suffered.

50. In the current circumstance, such is impossible to prove because no party knows when the keeper pin fractured, and what force the pin was subjected to which caused it to fracture. Neither the appellants nor Borren can prove that the keeper pin, if made to full-strength, would not have fractured. Therefore, it would amount to a practical reversal of the onus of proof to expect Borren to prove that which is unprovable. This is exactly why such an inference is not to be applied mechanistically as noted in the extract from Flounders (at [36]) per Ipp JA mentioned above (at [39]).

51. The comments of Sir Owen Dixon in his dissenting judgment in Jones v Dunkel and Another (1959) 101 CLR 298 (Jones v Dunkel) (at 30-305) appear to be apt to the present case: In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that “you need only circumstances raising a more probable inference in favour of what is alleged”. But “they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture”. These phrases are taken from an unreported judgment of this Court in Bradshaw v McEwans Pty Ltd (unreported, delivered 27 April 1951) which is referred to in Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 , by Williams, Webb and Taylor JJ. The passage continues: “All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood” (at pp 480, 481). But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.

52. I consider that the decision of the High Court in Amaca Pty Ltd now represents a clear and unequivocal support for the principle that it is for the plaintiff to prove causation. However, even if such authority and that of intermediate Courts of Appeal be ignored, and prima facie causation is to be applied in the way the appellants contend, the appellants do not satisfy its requirements. An important consideration arising from such authorities is whether or not “that risk eventuates”. The act or omission must result in an increased risk of injury to the plaintiff and that specific risk has to eventuate. It is not enough that the act or omission merely raises the likelihood of risk: see Kiefel J in Royal as extracted (at [40]) above. Therefore, the formulation of the precise nature of the risk is essential. If it is defined too loosely it will encompass circumstances which would offend against common sense causation as required by March v Stramare.

53. The appellants identify the risk as being that the keeper pin would fracture due to it being less than the specified strength. The appellants contend that such outcome is foreseeable, and, in one sense, it is. However, such risk, namely a pin breaking, divorced from how it broke casts the risk too wide. This is what was meant by Kiefel J (at [144]) in Royal when her Honour said “The present state of authority does not accept the possibility of risk of injury as sufficient to prove causation. It requires that the risk eventuate”. It must be shown not merely that the possibility of risk of injury was increased, which arguably it was by being an under-strength pin, but in the result the specific risk which could be said to be increased did lead to the injury in question. As has been clearly demonstrated in Amaca Pty Ltd, the mere possibility that an event may have occurred is insufficient to establish causation.

54. The evidence shows that the keeper pin was intended to prevent lateral movement of the pivot pin rather than rotational movement of the pivot pin. The trial judge found as much at first instance (at [3] of his judgment), and such finding is consistent with the evidence of the expert witnesses. Dr Yeomans said in cross-examination: “it [the keeper pin] simply secures it, but it’s not to secure it against rotation… It’s to secure it against that lateral movement you were talking of”. The keeper pin was not designed to prevent rotational movement of the pivot pin because the pivot pin was not meant to rotate. Such fact was acknowledged by Dr Yeomans as outlined above, and was accepted by Mr Wenn, another expert witness: “Under normal operation yes, you would expect it [the keeper pin] not to bear any load when used properly”. Such was also an assumption of Dr Shafaghi, another expert, when he said: “well when you say failed you are including within that concept the overload of the bearing system?---Yes, see the whole system had failed at that point. Once the pivot pin started moving up the whole system had failed”.

55. Further, those that could speak to the design of the hoist were not called as witnesses. Both parties sought to contend that such fact should lead to ‘Jones v Dunkel’ inferences. We do not draw any such inference against either party. Rather, we note that any designer may have been able to adduce evidence of whether the keeper pin was meant to withstand a rotational force and, if so, what level of force that was. Without such witness, we are left with the evidence of Dr Yeomans, Mr Wenn and Dr Shafaghi which is that the only force the keeper pin was meant to withstand was lateral force.

56. Therefore, following from such evidence, were it to be shown that the pin broke laterally because it was under-strength, one might consider that a causal connection would be readily established. That was not the case.

57. The pin failed because of the application of rotational force which it was never intended to bear. All parties agree that it broke because rotational force was applied to it. Whether or not a full-strength keeper pin could have withstood such a load is irrelevant. The fact is that the keeper pin was never designed or meant to resist such force. The failure that occurred was not the relevant failure for the purposes of “that risk eventuating”. Of course, the negligence of Borren in making an under-strength keeper pin as found by the trial judge meant that if rotational force were to be applied on the pin, it would break sooner than a full-strength pin. However, the evidence of the experts establishes that the pin was not meant to resist any rotational force. The evidence of Dr Shafaghi suggests that a force six times above normal load would be needed to break the keeper pin even at the strength of the under-strength keeper pin provided by Borren.

58. As the appellants themselves extracted from Barnes and Others v Hay (1988) 12 NSWLR 337 (at 355): The reason why the law imposes liability for that loss in such a case is, not because there is, in the abstract, a group of conditions sufficient to produce the loss, but because defendants are to be held responsible for that which it was their duty to seek to avoid. It was never the keeper pin’s function (and thus Borren’s duty) to avoid the risk of the pivot pin rotating due to an increase in the co-efficient of friction between the bush and levelling rod as the keeper pin’s function was to prevent the pivot pin moving laterally.

59. It follows that the appellants do not make out their prima facie inference case and no evidentiary onus shifted to Borren. Mr Williams SC, counsel for the appellants, submitted the following: The critical question that this appeal really turns on is this. In the absence of somebody proving conclusively the force that the pin was subjected to at the time it failed, has the plaintiff done enough to get a prima facie inference of causation absent such evidence?

60. We do not believe that a mere failure to make out prima facie causation necessarily causes the appeal to fail: rather the appellants are left with making out causation according to requirements of the seminal authority of March v Stramare. March v Stramare causation

61. The question for our consideration now is whether it can be said that the injuries of Mr Hay were “caused or materially contributed to” by the conduct of Borren in manufacturing a pin of a strength which was less than that required by AISI 4140. The difficulty arising for the appellants in their contentions is that it is not established that the fracture of the keeper pin was in fact a cause which led to the injuries sustained by the plaintiff.

62. The trial judge found that the keeper pin did not conform to the specifications agreed to between Borren and Snorkel NZ and that, because of its lower tensile strength, Snorkel NZ succeeded in establishing breach of contract and negligence on the part of Borren in relation to the manufacture of the keeper pin. However, the issue for determination is whether a breach of contract so found and the act of negligence can be said to be one of the causes of the failure of the hoist.

63. Mr Wenn concluded that the collapse of the hoist resulted from “the failure of the keeper pin and the subsequent failure to detect the condition of the machine on at least three occasions” after the keeper pin’s fracture but before the hoist’s failure and stated in his report: The keeper pin failed primarily as a result of a combination of adverse factors relating to the efficiency of the frictional properties of the journal [bush] and insufficient material strength to withstand the resulting torque applied to the pivot pin. These factors were most probably overload or incorrect setup during use.

64. Of the causes identified by Mr Wenn, it is significant that he specifically referred to the “insufficient material strength to withstand the resulting torque applied to the pivot pin”. The expert evidence referred to earlier establishes that no rotational force was intended to have been applied to the keeper pin and that its sole function was to prevent lateral movement. That is, the keeper pin was not a load bearing component of the machine.

65. Various opinions were expressed as to why rotational load had been applied to the pin. Dr Yeomans observed: As it turned out it was ultimately identified as a bearing [bush] issue and I had been privy to those reports. I didn’t know that at the time when I looked at the device, of course.

66. Whilst the appellants submit that there was no objective evidence of bush failure, such submission cannot be sustained in view of the evidence of Dr Yeomans who, having examined the pivot pin observed that “there was evidence of scouring, gouging, damage on that surface”. Dr Yeomans did not address the issue of the bush because he said it was not “part of my brief to do so”.

67. Dr Shafaghi, whose testimony was based upon photographic evidence of the relevant components, opined that because of the absence of a plastic washer, water was able to access the component parts thereby destroying the bush’s lubricating capability between the levelling rod and the pivot pin. Dr Shafaghi considered that rotational forces had been applied to the pivot pin because of the binding between the pivot pin and the levelling rod, and that the rotational force, resulting from friction, caused the keeper pin to break. As stated earlier, Dr Shafaghi considered that a force of six times above the normal load on the hoist would be required to break the under-strength keeper pin.

68. The appellants rely upon the evidence of Mr Single. Mr Single was a former employee of Snorkel who was asked to inspect the damaged hoist on the night of the accident by torchlight. Mr Single found no evidence of bush failure. He observed that there was “plenty of bearing Teflon coating inside the bush” and that there was no evidence of any scoring or other markings on the inside of the bush. He believed that “the bush was in still good enough Teflon surface area to perform its function” [sic].

69. The trial judge accordingly had before him conflicting evidence relating to the condition of the bush. However, Dr Yeomans was the only expert to have scientifically examined the pivot pin. Mr Single did not inspect the pivot pin, only the bush. In such circumstance, Dr Yeoman’s observations in the laboratory were more reliable than those conducted by torchlight by Mr Single. Further, Mr Yeoman’s evidence is supported by Dr Shafaghi’s observations based on the photos he saw of the components at the accident site.

70. Accordingly, Dr Yeomans provides evidence that there was scoring on the pivot pin. Since he was the only metallurgist who physically inspected the pivot pin it is incorrect to say, as the appellants contend, that there was no evidence that there was a failure or at least a degradation in the interaction between the bush, pivot pin and levelling rod.

71. Quite apart from the question of whether there was scoring or binding in the bush, it is accepted by the parties that rotational force must have been applied to the keeper pin. The keeper pin was rotated to a point where it fractured. That is, the keeper pin was subjected to a force of an unknown magnitude when in fact no rotational force was ever intended to have been applied to it. Consequently the broken keeper pin did not cause or materially contribute to the injury. As it was put by Dr Shafaghi, the keeper pin breaking was the symptom, not the cause of, the failure of the hoist. The cause was increased friction on the pivot pin, causing it to rotate and break the keeper pin. Once this occurred, as the trial judge found, it was only a matter of time before the pivot pin would work itself loose.

72. The appellants do not deny that the binding between the bush, pivot pin and levelling rod was a contributing factor in the accident. However, they submit that despite such contribution the failure of the keeper pin should also be considered a cause of the accident, and a cause is sufficient to ground causation in tort. They rely particularly on the authority of McHugh J in Henville and Another v Walker and Another (2001) 206 CLR 459 (at [106]).

73. Such submission cannot be sustained. The expert evidence, combined with the lack of evidence on the part of the engineers of the hoist, points to the conclusion that the keeper pin was never intended to be a load bearing component. Its only function was to prevent lateral movement of the pivot pin. It ceased to fulfil such role when it was broken by forces that were not part of the hoist’s design. The fact that the keeper pin was less than the specified strength cannot detract from the fundamental fact that the keeper pin was never meant to bear any load of the type to which it was subjected. Because the breakage of the keeper pin occurred due to unforseen, unexpected, abnormal and unquantified forces, those forces were the only cause of the accident, and not the under-strength keeper pin. Borren’s negligence did not materially contribute to the loss or damage suffered by Mr Hay.

74. Quite apart from the above analysis, there are other factors for consideration. An evidential issue arises from the fact that it is not known when the keeper pin fractured, and therefore the extent of force which caused it to fracture. It is entirely possible that a full-strength keeper pin would have broken anyway, in which case ‘but for’ the negligence of Borren, the accident would have happened anyway.

75. In summary, the breakage of the keeper pin was not the, or even a, legal cause of the accident. The cause was the rotation of the pivot pin, apparently caused by the bush/pivot pin/levelling rod failing to operate as intended. While Borren was negligent in supplying the under-strength keeper pin, such negligence was subsumed by the failure of the hoist to operate correctly. That is, there is no causal connection between Borren’s negligence and the failure of the hoist. The reason for the failure of the hoist to operate correctly is not certain, though the thesis of Dr Shafaghi regarding ingress of water and rust is a possibility. The trial judge was correct in his finding that the appellants failed to make out causation in tort. While the reasons his Honour provided were not extensive, for the reasons we have provided, we would uphold the trial judge’s conclusion. Causation in contract

76. Snorkel NZ also claims contribution on the basis of contract. Snorkel NZ points to the authority of Mowbray and Another v Merryweather [1895] 2 QB 640 as grounding their claim of causation in contract. In such decision Lord Esher MR said (at 643): … the question is whether the damages can “be regarded as the natural consequence of the defendant’s breach of contract, or, in other words, a consequence which might reasonably be supposed to have been within the contemplation of the parties.”

77. Kay LJ said (at 645): The plaintiffs were guilty of no negligence as between themselves and the defendant, and they are entitled, I think, to say as between themselves and the defendant that he gave them a warranty on which they had a right to rely. I think the damages claimed by the plaintiffs must be considered as being the natural result of the breach of warranty, and one which must be deemed to have been within the contemplation of both parties as likely to spring from that breach.

78. Such reasoning was applied by the High Court in Florida Hotels Pty Limited v Mayo and Another (1965) 113 CLR 588 and discussed more recently in Roads and Traffic Authority (NSW) v Fletcher and Another (2001) 33 MVR 215.

79. Snorkel NZ points out that the trial judge did not deal with such issue in his judgment. We note that the trial judge said (at [37] of his judgment), “It follows that Snorkel fails both as to Snorkel NZ’s contract and tort claims… Causation is essential in either case”. Therefore, given the trial judge’s finding regarding causation in tort, his Honour also rejected causation in contract. However, Snorkel NZ is correct that his Honour did not consider such claim in any detail. Therefore, there is utility in this Court making a finding as to causation in contract. FINDING ON CAUSATION IN CONTRACT

80. The relevant enquiry is whether the damages which resulted in the current proceedings were the “natural consequence” of Borren’s breach of contract in the sense that such consequence “might reasonably be supposed to have been within the contemplation of the part[ies]”. For all the reasons already outlined in relation to the failure of causation in tort, the causation claim in contract fails.

81. The breakage of the keeper pin was not the natural consequence of Borren’s breach of contract; rather it was the natural consequence of the hoist not operating correctly thus subjecting the keeper pin to forces it was not meant to bear. In this sense the damage that occurred was emphatically not “deemed to have been within the contemplation of both parties as likely to spring from that breach”. Borren would have been entitled to expect that it was supplying a keeper pin to a machine that operated correctly.

82. It is likely that it would be in the contemplation of Borren that supplying a keeper pin that was not made to specification could lead to injury. But such observation is insufficient; the injury must be the “natural consequence” of the breach. As already demonstrated, it was not such consequence. The breach became an irrelevancy in the circumstances because the hoist did not operate correctly in that there was binding between the bush and pivot pin which then imposed an unknown force on the keeper pin. That was the true cause of the accident. It may be possible that if there were no breach, and if the keeper pin was made to specifications, the rotational movement of the pivot pin might have been resisted by the keeper pin and the keeper pin might not have snapped. That is, the keeper pin may have been able to withstand the rotational force applied to it. However, the pivot pin was never meant to rotate, and thus the keeper pin was never meant to be subject to rotational force and was never intended to resist such force. Failure to provide reasons

83. The foregoing discussion as to causation in tort and in contract now answers the appellants’ appeal ground claiming that the trial judge did not provide adequate reasons for his decision. As has been demonstrated, even if the reasons provided by the trial judge were deficient, his Honour made the correct finding regarding causation in tort. Even if his Honour did not give extensive reasons for his finding as to causation in contract, the above reasons show that such oversight is now of no consequence. Factual Matters: force required to break the pin

84. The appellants submit that the trial judge was in error in finding that there was “no evidence of the force designed to be exerted upon the keeper pin”. The appellants point to the evidence of Mr Wenn who made calculations as to the force that would have to be applied to the keeper pin to cause it to break and which could be expected to break in certain situations.

85. With respect, the appellants misunderstand his Honour’s finding. His Honour’s use of the word “designed” suggests that his Honour was stating that there was no evidence from the designers of the hoist of the load intended to be withstood by the keeper pin. This observation was correct. As stated previously, no person who was involved with the design of the hoist was called. It would have been a simple matter for the appellants to tender evidence before the Court showing that the design of the hoist required the keeper pin to resist rotational force, even if the hoist was operating correctly. It would also have been a simple matter for the appellants to tender evidence before the Court showing that, given the vicissitudes of operation of such machines, the appellants had purposely specified a greater than necessary strength keeper pin as a safeguard to allow for the possibility that the keeper pin might have to resist the rotation of the pivot pin. However, no evidence was tendered before the Court of such matters.

86. Mr Wenn’s calculations may have shed some light on what kind of forces could be expected to be applied to the keeper pin in normal operation, but they were an after-the-fact calculation premised on a number of assumptions which make it difficult to determine their reliability. Further, such evidence is complicated by the following exchange between Mr Wenn and Borren’s counsel in cross-examination: And you understand Mr Harding’s calculations were for the purposes of certifying loads on different components of the machine for the purposes of satisfying government regulations about the standards and the like?---That could be a purpose. The other purpose would be to work through the design of the machine to establish the compliance with the – with the appropriate standards … - show me where Mr Harding has got a calculation for the keeper pin? ---There is no calculation for a keeper pin. Was that an omission by Mr Harding?---Not really, the load is indeterminate, it depends on how much friction is there, you can make all kinds of assumptions about friction. Would it be an outrageous proposition to suggest the reason why he hasn’t included any component or any calculation for the keeper pin is that it’s not supposed to bear any load?---Not supposed to bear any load, that’s - it’s not – that statement is not outrageous, no. It’s true isn’t it, that’s why you haven’t got - - -?---Under normal operation, yes, you would expect it not to bear any load when used properly.

87. Even if his Honour be incorrect in his statement extracted (at [79]) above, nothing flows from it. The central point of his Honour’s observation and the preceding discussion in this judgment is that there was no evidence before the Court that the keeper pin was a component of the hoist that was designed to bear any load in the sense of resisting rotational movement of the pivot pin. In fact, all the expert evidence referred to, points to the opposite conclusion. Therefore, the only value of the calculations of Mr Wenn was to show that a full-strength keeper pin could resist greater rotational force than one that was weaker due to it not meeting specification AISI 4140. So much might be assumed without such calculations. The existence of sufficient rotational force to break the keeper pin, weaker as it may have been than specification, was evidence that the machine was not operating correctly. It is sufficient to support a finding that it was not the under-strength keeper pin that was the legal cause of the accident, especially given the total uncertainty as to the extent of the force to which the keeper pin was subject when it broke. Factual Matters: Safety margin of the pin

88. The appellants also claim that the trial judge was in error when his Honour found (at [35] of his judgment) that “there is no evidence of the…safety margin, if any, allowed for the pin to be fatigued or of lesser strength than optimal strength”. The appellants point to the 2007 report of Mr Wenn in favour of their contention that there was such evidence. In such report Mr Wenn stated: In my opinion, Snorkel had designed into this system, an adequate factor of safety to cater for bearing deterioration, the possibility of overload and the possibility of edge loading on the bearing – all factors beyond their control. The fact that the keeper was in ready view and easy to inspect would simply add to the belief that the system was secure. Snorkel however did not take into account that a keeper pin manufactured from such inferior material could be supplied and that this would rob them of the security that had been achieved.

89. For all the reasons already outlined, the trial judge was saying no more than that there was no evidence of the design of the hoist from which it could be shown that there was a margin of safety designed for the keeper pin. His Honour was correct in such statement.

90. Further, the evidence of Mr Wenn is simply not a substitute for such evidence. Mr Wenn’s report was written based on assumptions of the design of the hoist and of its intended mode of operation. His statement that “Snorkel has designed into this system, an adequate factor of safety” is undermined by the following exchanges in cross-examination: Have you ever asked to speak to the engineers that were involved in the manufacture of this machine?---No. Do you think that this might have been helpful?---Not really. For example, “What did you fellows have in mind when you did this?” might be an interesting question to ask, wouldn’t it?---It might have been. It’s a very typical securing means. They’re used on a lot of elevating work platforms. Because you had Mr Harding’s drawings, didn’t you?---Calculations, yes. … ‘show me where Mr Harding has got a calculation for the keeper pin?---There is no calculation for a keeper pin.’

91. It follows that the report of Mr Wenn can be no more than an assumption that there would be a safety factor or tolerance built into the design of the keeper pin. It cannot have been based on any evidence before him because he had no contact with the designers or engineers of the hoist, and the calculations of Mr Harding did not include any assessment of the load to which the keeper pin would be subject. In such circumstance, even if his Honour had been in error in suggesting that there was no evidence of a factor of safety, we would not consider the evidence of Mr Wenn to be at all probative, that there was, in fact, a factor of safety built into the design regarding the keeper pin. Factual Matters: Time that the pin was broken

92. The appellants’ ground of appeal regarding the trial judge’s finding as to the time when the pin broke is only relevant to the issue of contribution, given that his Honour found that the failure to notice the broken pin by inspections was not a novus actus interveniens. We uphold this finding. Since we find that the appellants fail on causation in both contract and tort, there is no reason to consider contribution and thus there is no reason to consider this ground of appeal. Did his Honour make a contradictory finding?

93. The appellants contend that the trial judge made a contradictory finding in that his Honour inferred that “in normal operation the normally made keeper pins would not fracture” but later found “it is simply impossible to conclude that a machine functioning within its normal parameters would not snap a full-strength keeper pin but would snap one that was (approximately) half strength”. We consider that even if his Honour did contradict himself, nothing turns on such words since his Honour’s ultimate conclusion is not ambivalent. Borren’s Notice of Contention

94. Given our findings as to causation in both tort and contract, we uphold the orders made in the proceedings before the trial judge. It follows that, Borren remains not liable for any contribution toward the damages payable by the appellants and the appeal should be dismissed. In such circumstance, we consider there to be no utility in the Court addressing the extensive factual matters put in issue by the Notice of Contention. CONCLUSION

95. The appeal is dismissed with costs. I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 14 September 2010

Counsel for the Appellants: Mr D L Williams SC and Mr W L Sharwood

Solicitors for the Appellants: Clayton Utz

Counsel for the Respondent: Mr C T Barry QC and Mr G Blank

Solicitors for the Respondent: Mallesons Stephen Jaques

Date of hearing: 3-6 August 2009

Date of judgment: 14 September 2010

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