South 32 Ltd v Allfab Constructions Pty Ltd

Background

1. On 2 June 2015, Mr Leslie Corbett was injured in a workplace accident in the West Cliff coal preparation plant operated by the appellants. He was present when the hatch to the sump of a tank known as Tank 3-20C was opened, in the course of regular quarterly cleaning and maintenance. The tank should have been empty. In fact, it contained some 29,000 litres of slurry (water and magnetite). The picture below shows the hatch to the sump of the tank and the dump valve. The circular hatch is attached to the sump by two hinges and around 20 bolts around its perimeter; the dump valve is to the right.
2. Mr Corbett's injuries were principally psychiatric, although he also suffered some physical injury. Mr Corbett sued four defendants: the three appellants and the respondent, Allfab Constructions Pty Ltd. It was common ground both at trial and on appeal that the three appellants together conducted the business of the West Cliff Colliery and could be treated collectively for all purposes. I shall proceed accordingly and call them "West Cliff". Allfab was a contractor retained by West Cliff to provide maintenance services.
3. Shortly before the commencement of the trial, West Cliff consented to judgment in favour of Mr Corbett in the sum of $420,000 plus costs. The hearing thereafter proceeded over some six days on West Cliff's cross-claims for statutory contribution against Allfab pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
4. The primary judge dismissed West Cliff's cross-claims, in a reserved judgment: Leslie Corbett v South 32 Limited (No 2) [2018] NSWDC 232. His Honour proceeded on the basis that, in order to succeed, it was necessary for West Cliff to establish that Mr Corbett would have succeeded in his action against Allfab. The primary judge found that Mr Corbett would have failed to establish breach. His Honour was not satisfied that a reasonable person in Allfab's position would have acted differently and taken additional precautions to those taken by Allfab, or that Allfab's employee Mr Chappell ought to have known of any risk that required those precautions to be taken: at [80]. His Honour went on to find that had Allfab taken the precaution of opening the dump valve, that would have probably revealed the existence of the full tank, such that its failure to do so was a necessary condition of the harm suffered by Mr Corbett. The primary judge addressed apportionment notionally, on the hypothesis that he might be wrong in relation to liability, and concluded that had he found Allfab liable, he would have regarded the appropriate level of contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) as 15%: at [97].
5. Significantly, Mr Corbett was not an employee of either West Cliff or Allfab. He was employed by a company known as Turbo-Vac Australia Pty Ltd, which had been engaged by West Cliff to provide a "confined space watcher" at the washery. He joined employees of Allfab for the purpose of maintenance of the sump. Turbo-Vac Australia was not joined to the litigation, and thus neither the nature of the duty owed by employer to employee, nor the complexities introduced by s 151Z of the Workers Compensation Act 1987 (NSW), intrude into this litigation. It was and is common ground that Part 1A of the Civil Liability Act 2002 (NSW), including ss 5B and 5D, applied to West Cliff's proceedings for statutory contribution, and the primary judge proceeded accordingly.

Structure of this judgment

1. The main issue on the appeal is a complaint that the primary judge failed to determine West Cliff's case. West Cliff commenced its written submissions in support of its appeal with the complaint that: "With respect, the decision in the Court below did not reflect the way in which West Cliff put its case at trial."
2. I have found it convenient first to address West Cliff's main complaint on appeal, in light of which the summary of the trial and the reasons of the primary judge may be considered. I do that immediately below.
3. West Cliff also challenged, by ground 2 of its appeal, the (notional) apportionment of responsibility between it and Allfab in the event that the latter was found liable. West Cliff made two additional submissions which arguably fall outside its notice of appeal. First, West Cliff submitted that the primary judge failed to determine the relevant duty of care owed by Allfab to Mr Corbett. Secondly, West Cliff submitted on appeal, as it had done at trial, that Allfab was required to "positively isolate stored energy" in accordance with its own Safe Work Method Statement. Allfab, by a notice of contention sought to uphold the judgment in its favour on the basis of causation. All of these matters may be dealt with relatively concisely.

West Cliff's main submission on appeal

1. Ground 1 of the appeal challenged the finding that Allfab was not liable. It identified three errors, all of which were directed to the finding of breach: "(a) By concluding that, in the circumstances of the accident, the respondent would not reasonably have recognised a relevant risk of harm; (b) By concluding that Mr Chappell did not know of the risk, and that he was not in a position where he ought to have known of the risk; (c) By failing to conclude that the failure to take any precautions against the risk did not [sic] constitute a breach of the duty of care the respondent owed to Mr Corbett."
2. That formulation is, with respect, more general than is ideal. However, West Cliff's written and oral submissions made it clear that its main complaint was that the primary judge had failed to determine the "principal case" propounded by it in respect of breach.

West Cliff's submissions in support of its main challenge

1. After its initial written submissions mentioned above, West Cliff continued: "[I]t was made clear that the principal case put forward by West Cliff was that once Mr Chappell recognised the risk he should not have opened the hatch, or, at least, he should have made sure that Mr Corbett was out of the 'line of fire'. A submission along those lines was put several times and the trial judge engaged with the point {Black 58M; 192D-192J; 202B-202L; 212G-212K; 213S-214D; 216T; 217J; 225D; 226P; 232L}."
2. The references to pages in the black book were to the transcript of the trial. The first was an exchange between the primary judge and counsel for Allfab who accepted that his case was that, prior to the hatch being opened, the group of men were told to move back. Counsel for West Cliff agreed that that was his case, too. The second reference was during the course of West Cliff's final submissions on the afternoon of 26 March (the third last day of the trial). The reference was to evidence from Mr Chappell, to the effect that not only did he warn Mr Corbett to get out of the way, but also that he "recognised that he was still in the line of fire" and continued to open the hatch.
3. The clearest passage is the third, on the morning of the final day of the hearing: "HIS HONOUR: Does raise the issue there about whether it is sufficient to say get out of the way? WATSON: Yes. HIS HONOUR: And given the capacity and reasonable expectation of the plaintiff to take steps to protect himself. He was told to get out of the way is that sufficient or should he effectively refuse to proceed until he gets out of the way which seems to be the way you put it. WATSON: Yes. HIS HONOUR: Something like that. WATSON: That's precisely how I would put it."
4. The following six references are to statements made by the primary judge during the course of West Cliff's submissions.
5. The final, tenth reference is to an exchange with counsel for Allfab, who was asked: "HIS HONOUR: … I'm not wanting to preclude any submission on any particular matter, but I think I would especially be assisted by your submissions in relation to not so much the way this case started, on the dump valve, the inspection hole, the control room, but on what was happening in the region of the hatch. That's where Mr Chappell had some degree of control as to who's going to be in front of the hatch. He gave instructions about it, and how the bolts are removed, and when one takes the last bolt off. That sort of area."
6. After counsel for Allfab began a response, the primary judge added: "HIS HONOUR: You can take it that I don't think there is an issue about what he believed about the contents of the tank, but it's one thing to believe that the tank's empty. It's another thing to realise that sometimes beliefs could be wrong and what precautions one takes. So, you seem to - as I understand the submission - seem to be suggesting that when he says to get out of the line of fire, that the line of fire is perhaps not an apt description because it's some sludge from the rim of the hatch might slop down."
7. The references support the proposition that West Cliff's case extended to the claim that Mr Chappell should have made sure Mr Corbett had moved away before the hatch was opened. However, they fall well short of establishing that that was West Cliff's "primary case". Nonetheless, it was West Cliff's submission that despite having put its case to the primary judge, and despite the primary judge having clearly engaged with those submissions during the hearing, the primary judge had failed to identify the "principal" way in which the case had been put. West Cliff said that: "In terms of breach the trial judge spent most of the time addressing possible precautions which could have been undertaken by Allfab. This approach is reflected in an early part of the judgment {Red 111 U-112C}: Principally, West Cliff alleged that AIlfab ought to have undertaken certain checks or procedures, which Allfab did not undertake, to ensure that there was no material in the tank such as inspecting the tank through an inspection hole at the upper level of the tank, opening the dump valve of the tank, or contacting the control room about the level of material in the tank. As set out earlier, West Cliff did not 'principally' put its case that way."
8. West Cliff further submitted that: "The trial judge, with respect, addressed matters relating to breach in the wrong order. West Cliff's case was that before Mr Chappell removed that last bolt on the hatch, he was obliged to do one of two things: • Mr Chappell could have decided not to remove the bolt until he ascertained that it was safe to do so; or • At the very least, after issuing his direction for the crew to get out of the 'line of fire', Mr Chappell should have made certain that Mr Corbett complied and moved to a safe position. Instead, the trial judge addressed the matter by first looking at a number of specific precautions which Allfab could have taken to ascertain whether any magnetite slurry remained in the tank. These included 'inspecting the tank through an inspection hole at the upper level of the tank, opening the dump valve of the tank, or contacting the control room about the level of material in the tank' {Red 111T-112C}. It is correct that these precautions could and should have been taken by Allfab, but that was not the way in which West Cliff put its case. Rather, West Cliff put its case in the way described above - that Mr Chappell should not have removed that last bolt on the hatch unless he was certain it was safe to do so; alternatively, Mr Chappell should have made certain that Mr Corbett was in a position of safety. This means that the precautions which could have been taken by Allfab became a secondary consideration. They were simple measures which could have been taken {Black 56R-56W}, but the real protection which should have been given to Mr Corbett was by not removing the last bolt on the hatch while he stood in a position of risk. Instead, the trial judge approached breach by questioning whether the specific precautions were within the contractual requirements between West Cliff and Allfab. That might be relevant to apportionment, but it has nothing to do with the duty owed by Allfab to Mr Corbett, or the breach of that duty." [emphasis added]
9. During oral submissions in this Court, counsel for West Cliff, Mr Watson SC, who also appeared at trial, referred to where the primary judge had dealt with the specific precautions and then added: "That wasn't - not only was that not primarily our case, I'm not pushing it. I put this case on the basis that Mr Chappell went ahead and took those bolts off when he knew that the gentleman was at the risk of injury, of precisely the risk of injury by which he was hurt."
10. Further, once again after dealing with what the primary judge had said as to precautions, Mr Watson said: "That was with respect not the way we put the case. What we wanted Mr Chappell to do was slow down. He could have done one of two things, he could have said hold on, get out of the line of fire, get right around there so you can't possibly be in the line of fire, or he could have just stopped, but the first precaution would have been enough."
11. It will be seen that the approach adopted by West Cliff on appeal, insofar as it fell within its main challenge, was a narrow one. It was that the primary judge had failed to identify what it said was the "principal" way in which the case had been put. West Cliff maintained that its case in relation to breach was not about Allfab's failure to take the precautions which the primary judge had addressed in detail. Rather it was a complaint that immediately before opening the hatch, Mr Chappell had told the men with him including Mr Corbett to get "out of the line of fire" but had proceeded to open the hatch while Mr Corbett remained standing where he had been.

The evidence of Mr Chappell

1. West Cliff's case on appeal turns upon the testimonial evidence of Mr Chappell, who was the Allfab employee who had actually opened the hatch on the sump on 2 June 2015 (Mr Corbett had not remembered being told to get out of the line of fire). Thus it will be necessary to deal with Mr Chappell's evidence, and in particular what was conveyed by his evocative expression "line of fire" - in some detail.
2. Mr Chappell had been employed as a fitter for many years, and described in some detail the way in which he came to approach Tank 3-20C. "Q. When you commenced work on that tank that day, what was the first thing you did? A. I verified that that was the tank I had to work on. Q. How did you do that? A. It was numbered. I'm sure that it was numbered, but where it was numbered, I can't - I honestly can't remember that. Q. After you checked the number on the tank, can you talk us through what you did next? A. I looked at the inspection hatch. It was a little bit high so we had to get a step ladder. We - well, I unbolted from underneath first. I just loosened from around 6 o'clock and I worked my way up around about 3 and 9 o'clock. Q. When you say you 'unbolted', are you talking about bolts on the inspection hatch? A. Yes. I'm talking about the hatch itself. I loosened those bolts off, I worked my way around up to 3 and 9 o'clock. Q. Just so this is clear, while you were doing that, were you on a ladder or not on a ladder? A. At that point I was on a step ladder Q. You were [giving] evidence about loosening the bolts. A. Yes. Q. Go on. A. I was loosening the bolts. I got to 3 and 9 o'clock, all the other bolts that were loosened as well, and then I worked my way to the top. It's at the hatch became - well, we opened it up and probably had a gap of about 10 or 12 mil in there. There was - there was no sign or there was no residual coming out, so I proceeded to take the rest of the bolts out and I left probably about eight or nine bolts that were still engaged. Q. Just before you go on, you mentioned 'there was no residual coming out'. What are you talking about when you're talking about 'residual'? A. Well, it was my belief that there might have been some residual sitting on the hatch itself. Q. Why did you think that might be the case? A. Because of the shape of the tank itself and it sitting at the angle that it's at, that there would be a little bit of product sitting on that hatch. Q. Are you talking about the angle of the hatch? A. I'm talking about the angle of the hatch and also just where the actual - the angle of the tank as well. Q. You were talking about removing some further bolts? A. I reduced, bolted it, and then we got to the point where I had to move the ladder to my left to move away from it, from the actual hatch, and then I spoke to the crew that was there. I got down to the last couple of bolts and I said, 'Look, we're just going to open this hatch up now', and I've asked the crew to move out of the way and then I proceeded to take that last bolt out. Q. Why did you ask the crew to move out of the way? A. The only reason why I asked that was it's just in our field that, you know, possibly the line of fire there. If there was anything sitting on that hatch, you know, it's possible that it could have been - someone could have got hurt or something. Q. When you're talking about something 'sitting on that hatch', are you talking about a full volume of material sitting on that-- A. No. Q. Let me finish - a full volume of that material, of the material in the tank sitting on the hatch, or the residual material you've spoken about earlier? A. I'm talking about the residual. You know, this tank was empty. As far as I was concerned, the tank was empty because of the isolation and also what was in my work pack, was saying that it had already been isolated. So what I'm saying is that there was - I'm assuming that there's a little bit of residual sitting on that hatch and it was just a matter of undoing it and just keeping everyone away from that line of fire just in case something happened Q. When you're talking about 'a little bit of residual', can you give his Honour some idea of volume? A. Well, volume for me was just, you know, maybe a bucket or two buckets of, say, 10 litre buckets of residual. Q. At any time during the time you were loosening and taking out bolts on the hatch, were you doing that to check whether the tank was full or not? A. No, I wasn't. Q. In your experience as a tradesman, is that something you would ever do? A. No, not at all. If I - I wouldn't put myself in a line of fire. If I'd known that there was something in that tank, I - it would be silly to open it up. It just wouldn't happen." Thus clear evidence was adduced in chief describing how Mr Chappell loosened the bolts, starting from the bottom of the hatch and waiting at the top, how he opened the hatch slightly, how no "residual" came out, and how, before he removed the last bolt, he asked the other men to "get out of the line of fire". It was quite plain that Mr Chappell was thereby referring to the risk that some "residual" slurry might come out, "if there was anything sitting on the hatch".
3. In cross-examination, Mr Chappell was taken to his direction to the other men, including Mr Corbett, to get out of the "line of fire", as follows: "Q. Do you remember telling his Honour, the judge, just a moment ago, that when you were removing the bolts from the hatch, you told the workers near you to move out of the way? A. Yes. Q. Do you remember telling the judge that? A. Yes. Q. Was that true? A. It is true. I did ask them to move out of the way. Q. Then you said that the only reason you did that was that in your field, the person might - and this is your expression - 'possibly be in the line of fire and it was possible that someone could get hurt'. That's what you told the judge? A. If they were in the line of fire. Q. So you recognised that if a person was standing near the hatch, they needed to move out of the way, didn't you? A. Yes. Q. You recognised the need to say that because it was possible that someone could get hurt, didn't you? A. I did say that, yes. Q. Someone did get, didn't they? A. Someone did get hurt, yes. … Q. You said to his Honour that you told them to move out of the way because they could possibly be in the line of fire and it was possible someone could get hurt. That's what you told the judge? A. Look, it was - yes, that's what I said to the judge. Q. This person, Mr Corbett, he was hurt, wasn't he? A. Yes, he was, but that's not mine - that wasn't our intention at the time. Q. I appreciate that. Nobody suggests that it was your intention, but he got hurt because he was in the line of fire; correct? A. Like, you know, we're grown men and, you know, he was watching what I was doing and, you know, he was our safety person. Q. Are you suggesting it was Mr Corbett's fault? A. I'm not suggesting that it was Mr Corbett's fault or anything like that. Q. Come back to my question. When Mr Corbett was hurt, it was because he was in the line of fire; correct? A. That's how he got hurt. Q. He was injured by precisely the same risk that you had identified. A. Well, the thing was we - I stopped. I made that call. I spoke to him and asked him to move out of the way. Q. Are you saying he didn't move out of the way despite your request? A. Obviously he didn't move far enough. Q. Did he move at all? A. As far as I know he did, yes. Q. What do you mean 'As far as I know he did'? Did you see or did you not see? A. I seen him move to our right. Q. So he removed to a position which you saw, which remained in the line of fire; correct? A. Well, he got hurt so he must have been in the line of fire. Q. You went on with the task despite recognising that very risk may hurt him, didn't you? Will you answer that question? A. Yes. Q. Is the answer 'yes'? A. Yes."
4. Mr Watson contended that the acceptance in cross-examination of the need for Mr Corbett to get out of the line of fire before the last bolt was removed from the hatch, and his failure to pause until Mr Corbett had moved, reflected the case which the primary judge simply failed to address.

Two further aspects of West Cliff's appeal as to the liability of Allfab

1. West Cliff made two further submissions, arguably outside the scope of its notice of appeal. The first was based on the failure to identify the existence and content of a duty of care owed by Allfab to Mr Corbett. The second was based on Allfab's failure to comply with its Safe Work Method Statement.

The duty of care owed by Allfab to Mr Corbett

1. West Cliff submitted in writing that: "The trial judge erred by not making a clear finding on whether Allfab owed Mr Corbett a relevant duty of care and by failing to identify the content of that duty of care. Had the trial judge addressed this issue he would have arrived at a different result"
2. In oral argument, West Cliff submitted that: "It's true that there was a kind of partial concession about duty but as I read his Honour's part of the judgment there that would be more conventionally described as a finding that there was a duty of some kind but a question as to whether or not there was a relevant duty of care. … His Honour did not go on to deliberate upon anything more precise than merely a broad statement that a duty of care was owed, so we do not know what the content was." West Cliff's oral submission suggests that its main complaint is that the primary judge did not elaborate on the content or scope of the acknowledged duty of care. In response, Allfab acknowledged that it owed a duty of care to Mr Corbett but contended that duty "is not really the issue in this case".

Allfab failed to comply with its Safe Work Method Statement

1. Secondly, a matter at the forefront of West Cliff's submissions at trial and on appeal was a "Safe Work Method Statement" prepared by Allfab in relation to the particular job that day in the coal preparation plant. It appeared to apply to all aspects of the tasks for which Allfab had contracted. It was divided chronologically into a series of steps.
2. The first and second "Job Steps" were "Access Site" and "Pedestrian/vehicle/mobile plant interactions". The fourth Job Step was "Remove Hatch for entry". Attention on appeal was focussed on the third step, "Check isolation requirements". The hazard identified was "Stored energy". There seems to have been no clear evidence about what "Stored energy" referred to, when the matter was raised by this Court, but certainly it is capable of referring to the energy of pressurised gas or liquid in the confined space which could emerge with force when the hatch was opened. The document assessed the risk as "4", which corresponds to "significant". The document identified three steps under the heading "Hazard Control & Work Method": "Before starting work have the Isolating Coordinator confirm there is no stored energy in the system. Attach personal red locks to isolator/GIB before starting work. Positively isolate stored energy."
3. Mr Chappell, on cross-examination, was asked repeatedly to identify what steps he had taken, in accordance with the Safe Work Method Statement to "positively isolate stored energy". "Q. I'm not asking you what your belief was; I'm asking what you did to obey the JSA. What did you do to positively isolate stored energy on tank TK-320C? A. I didn't do anything. Q. You did nothing; is that right? A. Yes."
4. West Cliff submitted on appeal, as it had done at trial, that Allfab had an obligation to "positively isolate stored energy" in accordance with its Safe Work Method Statement and that that obligation had not been complied with.

The findings of the primary judge on breach

1. The onus rested on West Cliff to make out the elements of Allfab's tortious liability to Mr Corbett. The primary judge found, dispositively, at [80]-[81], that he had: not been satisfied that "a reasonable person in Allfab's position would have acted differently and taken additional precautions to those taken by Allfab or that Mr Chappell ought to have known of any risk that required those precautions to be taken. It follows that Allfab has not been negligent. These findings are sufficient to dispose of the proceedings."
2. Those findings bore a twofold character. First, they reflected an acceptance of the (unchallenged) evidence as to the positive steps taken by Allfab before opening the hatch. Secondly, they reflected a rejection of the particular further precautions which West Cliff alleged a reasonable person in the position of an Allfab employee would have undertaken. Each aspect is elaborated below.

The procedures intended to isolate the system before maintenance was performed

1. No complaint was made of the findings of the primary judge at [17]-[18] and [20] which summarised the procedures in place: "West Cliff had a detailed procedure designed to ensure that the hatch to a tank was opened only when the tank contained no 'stored energy'. Relevantly, this was when the tank was empty, for a tankful of magnetite solution contained significant gravitational potential energy. The procedure governing the removal of stored energy, and thus 'isolating' a piece of equipment, was contained in West Cliff's 'Isolation Standard'. [14] This standard identified the roles of various employees regarding isolation procedures and training. It identified that the Engineering Manager was responsible to '[m]aintain the integrity and adherence to the … Isolation Standard', and that the 'Isolation Supervisor' was responsible for 'the activation and use of a Lockbox and Manual Remote Isolation" and had authority to "Isolate and de-isolate equipment'. The isolation process involved, first, identifying energy sources (such as the existence of magnetite solution in the tank), second, to advise relevant parties, third, '[t]o isolate and secure all energy sources before physical work starts', fourth, '[t]o secure all energy source isolation points before work starts', and fifth, '[t]o verify that all energy sources have been effectively isolated before work starts'. Steps 3 and 5, relevantly, appear to involve emptying the relevant tank and confirming that it is empty. Other than the use of an activated lockbox, explained below, there was no evidence that any of these steps were undertaken by West Cliff in respect of Tank 3-20C. ... The evidence indicated that the inspection of Tank 3-20C by Allfab was, according to the Isolation Standard and the retainer of Allfab, supposed to be preceded by a number of preliminary steps, including as follows: (a) West Cliff would identify that Tank 3-20C required isolation so as to be inspected, and would advise relevant West Cliff personnel. (b) West Cliff would then isolate Tank 3-20C. That tank would be listed on the Group Isolation Board in the list of tanks to be inspected by Allfab. (In this case, Tank 3-20C was so listed, but it was apparently not emptied of its contents. It contained stored energy in the form of magnetite slurry and was thus not properly isolated at the time the hatch was opened.) (c) The West Cliff Isolation Supervisor would ensure that the tank was emptied, or isolated, and would then attach his blue lock and isolation permit to the Group Isolation Board. This signified that the tank was isolated, that it contained no stored energy, and that it was thus safe to inspect. (In this case, the blue lock and an isolation permit tag were placed on or attached to the Group Isolation Board, but apparently the Isolation Supervisor had not, nor had anyone else, confirmed that the tank was empty.) (d) Allfab would receive instructions to inspect the tank. (In this case, the West Cliff "Permit to Work" confirmed in a document signed by Josh Woodford, perhaps the Isolation Supervisor, that "all Energy Sources" were "identified & isolated". The Allfab supervisor signed to confirm that he understood and accepted this confirmation. Mr Woodford and Phil Howes, the "process engineer", also signed off on the isolation permit for Tank 3-20C.) (e) Allfab employees would place their red locks on the Group Isolation Board, signifying that they were working on the tank. The tank would then remain "isolated" until all the locks were removed. (In this case, the Allfab employees did place their red locks on the Group Isolation Board.) (f) Allfab would loosen and open the hatch to the tank. (g) Mr Corbett would check the confined space in the tank for safety. (h) Allfab would proceed to inspect the tank." [footnotes omitted].
2. The references to the "Group Isolation Board" and the individual men's locks are to an isolation system, intended to prevent access to pieces of equipment. In addition, before opening the sump, Allfab was required to obtain a document signed on behalf of West Cliff that the system had been isolated, and to obtain oral confirmation of the same. The details do not much matter. It was said by way of summary and without objection by Mr Cavanagh SC, who appeared in this Court but not at trial, that: "the people working there understood what it was intended to achieve. There were permits, there was a board and there was actual questioning. That's what I'm saying; there were three steps along the way where the respondent was required to and did check it had been emptied and on each step the appellant represented it had been."
3. How it came about that West Cliff's systems had failed, so as to leave a supposedly isolated sump still containing thousands of litres of slurry, was unexplained. The primary judge noted at [19] that West Cliff did not call evidence to minimise or explain its negligence, or clarify how the tank came to be full of a magnetite solution and yet be listed in the Lockbox as having been isolated.
4. The primary judge identified at [55] that when the Allfab employees went into the premises after applying their personal isolation lock to the Lockbox, they were required to: "(a) 'ensure that all of the equipment requiring isolation for their work is listed on the Isolation Permit Tag'; (b) 'ensure that the Lockbox is active by observing the Isolation Supervisors lock and Isolation Permit Tag is on the Lockbox lid clasp'; (c) view that the 'Isolation Permit Tag details are complete'; and (d) view that 'the Isolation Supervisor and Verifying Person(s) signature(s) are on the Isolation Permit to confirm the isolation has taken place and that the test for dead has been performed'."
5. It will be seen that that procedure included sighting signed documentation made by the "Isolation Supervisor" and one or more "Verifying Person(s)" that the isolation had taken place. The primary judge found, at [56], that: "The Allfab employees followed this procedure then placed their locks on the board. Until all locks were removed from the board, the isolation procedure mandated that the tank was not to be operated but was to remain isolated. West Cliff did not suggest any failure by Allfab in this regard."
6. No complaint was made about that finding.

The precautions which West Cliff had alleged Allfab should have undertaken

1. His Honour then turned to "[t]he matters which West Cliff alleged Allfab were required and failed to do": at [57]. The primary judge addressed, at some considerable length, four specific precautions which, according to the case run by West Cliff at trial, a reasonable person in Allfab's position would have undertaken. It will be recalled that West Cliff was critical of his Honour having done so. The structure of this part of the judgment is as follows. 1. At [58]-[64], his Honour addressed the possibility that the dump valve should have been opened, noting inter alia that (a) there was no evidence that this was part of any written procedure, (b) there was evidence that once the tank had been isolated, any opening of valves should already have been done, (c) doing so would, if the tank were full, have released a large volume of material into the area surrounding the tank. His Honour concluded that a reasonable person would not have opened the dump valve. 2. At [65]-[68], his Honour addressed whether someone should have looked through the inspection hole. His Honour accepted evidence that no one on the part of Allfab knew that there was an inspection hole, and noted that there was no evidence that looking through it would have discerned any useful information about the emptiness or otherwise of the tank. 3. At [69]-[71], his Honour addressed the possibility that someone might contact the control room operator, and concluded that it was not reasonable to do so, in the absence of any evidence and in light of the positive steps which had been taken. 4. At [72]-[73], his Honour addressed the submission that Allfab should have "ceased work", but noted that this was contrary to Allfab's obligations efficiently to perform the contract.
2. No complaint was made on appeal in respect of the rejection by the primary judge of West Cliff's case insofar as it was based on the failure to take any of those four precautions, except for the general point that that was not the way, or at least not the principal way, in which West Cliff had advanced its case.

Allfab's Safe Work Method Statement

1. As outlined above, Allfab's Safe Work Method Statement required its employees to undertake three steps before starting work: (1) confirm with the Isolating Coordinator that there is no stored energy in the system; (2) attach personal red locks to isolator/GIB before starting work and (3) positively isolate stored energy.
2. There is no difficulty in understanding the first two of those steps. Responsibility for isolating the system before maintenance work was carried out lay with West Cliff, it was a requirement that Allfab obtain such confirmation, and Allfab did so. Likewise, it was a requirement that personal red locks be applied to the General Indicator Board before starting work, and once again, Allfab did so. In any event, the primary judge noted at [75] that West Cliff made no complaint in relation to the first and second items.
3. The third item is problematic. If West Cliff had complied with its obligations, there would be no stored energy. If the confirmation given by the Isolating Coordinator was correct, then once again there would be no stored energy. How then was anyone at Allfab to "positively isolate stored energy"? When this was raised during the appeal, West Cliff responded that the document contemplated a "hierarchy of responsibility", whereby although primary responsibility for isolating the system lay with West Cliff, Allfab nonetheless had to do something more by way of a "double check".
4. The primary judge referred to the difficulties with the third item at [76]: "The Safe Work Method Statement did not identify what was encompassed by the phrase 'Positively isolate stored energy'. No evidence suggested that it must be exclusive of the other items in the Work Method Statement. Even if it were, it could refer to ensuring that the task is listed on the Isolation Board and that the isolation permit tag and blue lock are in place, matters which were apparently done by Mr Chappell. Or it could refer to circumstances where there was some other indication of stored energy (either in the contents of the tank or in some other form). It evidently does not expressly require any of the three items propounded by West Cliff, namely, opening the dump valve, peering down the inspection hole, or contacting the control room. The only one of those methods that strictly could perhaps '[p]ositively isolate stored energy' (the others being methods to confirm that isolation has occurred) would be to open the dump valve, and, for the reasons given, I do not regard that as an isolation requirement that was appropriate for Allfab to undertake. It may be that if the confirmation with the Isolation Coordinator identified some further step for Allfab to take, that step was to be covered by the third item. Or it may embrace the 'cracking the seal' procedure in relation to material on the hatch, the step undertaken immediately before or as part of removing the hatch. To the extent that it was a further reminder to ensure that there was no stored energy in the tank, that step was fulfilled by checking the details on the Group Isolation Board to ensure that Tank 320-C was identified and the isolation permit and blue Isolation Coordinator's lock was in place. That, together with cracking the seal, were the methods by which Allfab could confirm that stored energy had been '[p]ositively isolate[d]'."

West Cliff's "Issues on Cross-claim" document

1. The evidence of Mr Chappell was given in mid-March. When the trial resumed on Monday 26 March, West Cliff handed up a schedule of what it apprehended to be the real issues in the case. On the following day, senior counsel resupplied the document with some "very unimportant inconsequential changes". He confirmed that "[paragraph] three sets out the general and [paragraph] four sets out the particular". That course was sensible, not least because the cross-claims themselves picked up the particulars of negligence in Mr Corbett's statement of claim and the primary judge was entitled to be guided by the issues as formulated by West Cliff.
2. In that document, West Cliff identified the following issues "as identified by the West Cliff Colliery parties" as to existence, content and breach of duty: "A. THE EXISTENCE AND CONTENT OF A DUTY OF CARE 1. Did Allfab owe a duty of care to Mr Corbett? 2. If it did owe a duty, was Allfab required to do no more than rely upon the 'lock-box' isolation system? 3. Alternatively, was Allfab, before removing the hatch, required to: (a) apply its own Safe Work Method Statement to the tasks at tank TK3-20C? (b) check specifically on the condition of the tank with the isolation co-ordinator? (c) do something so to 'positively isolate stored energy' in the tank? 4. Specifically, should Allfab have: (a) opened the 'dump valve'? (b) looked into the 'inspection hole' to ascertain the condition of the tank? (c) contacted the control room operator as to the condition of the tank? (d) ceased work if it recognised a risk of harm to any of the crew, including Mr Corbett? B. BREACH OF DUTY 5. Assuming that a duty of care was owed by Allfab to Mr Corbett, and in accordance with the Civil Liability Act 2002, did Allfab breach that duty of care by: (a) failing to apply its own Safe Work Method Statement? (b) failing to check on the condition of the tank with the isolation co-ordinator? (c) failing to positively isolate stored energy in the tank? (d) failing to open the 'dump valve'? (e) failing to look into the 'inspection hole'? (f) failing to contact the control room operator? (g) failing to cease work upon the identification of a potential risk of harm to Mr Corbett? (h) continuing to open the hatch even although a potential risk of harm to Mr Corbett had been identified? (i) adopting a method of loosening the bolts and slowly opening the hatch as a means of isolating any stored energy in the tank? 6. If the crew prised open the hatch with a scaffolding pole, was this was a reasonable means of discharging Allfab's duty of care owed to Mr Corbett?"
3. It is convenient to make the following points about that document. 1. First, it will be seen that the four points identified "specifically" in paragraph 4 correspond with the four matters considered between [58] and [73] by the primary judge. 2. Secondly, the four points in paragraph 4 were expressed to be specific matters which correspond to the more general statements in paragraph 3. The first and third matters in paragraph 3 "apply its own Safe Work Method Statement" and "positively isolate stored energy" do not correspond to particular precautions which could have been taken in the actual conditions in the coal preparation plant on 2 June 2015. The second matter "check specifically on the condition of the tank with the isolation coordinator" does amount to a specific step which could be undertaken, and it was in fact undertaken. 3. Thirdly, the seven matters (three general, four specific) listed in paragraphs 3 and 4 under the heading "The Existence and Content of a Duty of Care") were repeated as paragraphs 5(a)-(g) under the heading "Breach of Duty". 4. Fourthly, there were included two further allegations of breach, in paragraph 5(h) and (i). Of these, the second, based on loosening the bolts and slowly opening the hatch, was based on the evidence to the effect that there was normally a small amount (up to around 10 litres) of slurry remaining in the hatch. The primary judge addressed this at [53]: "... [T]he bolt loosening procedure was a precaution against a small amount of magnetite on the hatch, not a tankful, and West Cliff did not submit otherwise. In that case, the insufficiency of the cracking procedure to prevent injury from a tankful of magnetite slurry is not to the point." 1. West Cliff made no complaint with that aspect of his Honour's judgment. The focus of West Cliff's submissions on appeal was the breach of duty identified in paragraph 5(h), to which it will be necessary to return. 2. Fifthly, paragraph 6 may be passed over, as no complaint was made in this Court as to the finding by the primary judge (at [25]) that no such pole had been used to open the tank. 3. Finally, there was no suggestion, nor could there be, that this document had somehow been superseded as the trial moved forward. It was supplied in draft towards the end of the trial, when evidence ended and submissions commenced, and then resupplied in a slightly revised form during West Cliff's final address on the second last day of the trial.
4. Notwithstanding the length of the trial, West Cliff did not rely on any written submissions. Allfab supplied 35 pages of written submissions. West Cliff's oral submissions, and the questions asked by the primary judge, were closely tied to the "Issues on Cross-claim" document. Examples of oral submissions made by reference to paragraphs in that document may be seen at Black 198.50-199.13; 199.29-33; 199.39-200.3; 224.44-50.

Consideration of ground 1 of the appeal

1. I do not accept that the primary judge failed to deal with the way in which West Cliff advanced its case. Indeed, looking at the course of the trial as best as may be done, I cannot accept aspects of how West Cliff described its case at trial before this Court.
2. First, there can be no sound criticism of the primary judge dealing with the precautions which West Cliff alleged Allfab should have undertaken.
3. The pleadings particularise precautions which West Cliff alleged Allfab should have undertaken. West Cliff's "Issues on Cross-claim" document, supplied on the third last and second last days of the trial, likewise particularises precautions which West Cliff alleged Allfab should have undertaken. These were the principal cases advanced in documents, the sole purpose of which was to identify issues and shape the trial. Importantly, they formed the basis of Mr Chappell's cross-examination. For example: 1. Mr Chappell was asked, and denied, that he would use a "crack the hatch" method as a way of checking for stored energy in a vessel such as this tank; 2. Mr Chappell was asked, but denied, knowing there was an inspection hole when it was put to him that "you could look into an inspection hole down into the tank"; 3. Mr Chappell was asked, but denied, that it would have assisted if "you could have gone to the dump valve and opened it".
4. It is wrong to say that the precautions taken by Allfab might be relevant to apportionment but had "nothing to do with the duty owed by Allfab to Mr Corbett or the breach of that duty". It is wrong to say that the failure to take those precautions "was not the way in which West Cliff put its case". This was at the forefront of West Cliff's case, and was never resiled from. West Cliff's written submissions to the contrary, reproduced at [20] above, are factually incorrect. It will be seen that the primary judge attended to each of the allegations advanced by reference to the document originally supplied by counsel appearing for West Cliff on the third last day of the trial, and revised with minor modifications on the second last day of the trial, during that counsel's address.
5. Secondly, I would not accept that the claim that Mr Chappell should have waited until Mr Corbett moved out of the way was the "principal case" run at trial.
6. Thirdly, it is not correct that the primary judge failed to address the case advanced orally that Allfab's employee Mr Chappell should have waited until Mr Corbett had actually moved out of "the line of fire". The primary judge did attend to this aspect of the case, at [33]-[35]: "Mr Chappell conceded that he did identify a risk that people possibly could get hurt if they were in the line of fire and that although Mr Corbett was told to move out of the way, he did not move far enough, and got hurt because he remained in the line of fire. The following exchange occurred: 'Q. You went on with the task despite recognising that very risk may hurt him, didn't you? Will you answer that question? A. Yes. Q. Is the answer 'yes'? A. Yes. Consistent with Mr Chappell's earlier evidence, West Cliff eschewed the submission that this answer was evidence that Mr Chappell recognised the possibility of the tank being full of magnetite slurry rather than there being some residual magnetite sludge on the hatch, although West Cliff did not accept that any such distinction was relevant."
7. Those paragraphs, and in particular the reference to West Cliff eschewing the submission, was a reference to the very last substantive exchange between the primary judge and counsel for West Cliff at the conclusion of the trial: "HIS HONOUR: But does it follow from that that you're not pressing upon me, in part perhaps because you don't see it as relevant, that Mr Chappell, when he unscrewed the last bolt, was recognising the possibility of the tank being full? WATSON: No, I'm not pressing that upon your Honour. I'm not suggesting that Mr Chappell was that foolhardy. Also, and your Honour did point this up during exchanges yesterday, I'm not sure what it means to say that the tank was empty or the tank was full. It seems to be the possibility that it was half full and still could have what Allfab in its JSA described as stored energy. They're the submissions I was going to make in reply. Thank you, your Honour."
8. I have reproduced the whole of the exchange in the interests of completeness, notwithstanding that it appears that the first two sentences of Mr Watson's response were an answer to his Honour's question, after which (commencing with "Also") counsel moved on to a different topic.
9. It is plain that the primary judge regarded counsel's response as a disavowal of a complaint that Mr Chappell realised that there was a risk of the tank being full. The disavowal was quite proper. It is plain that Mr Chappell was concerned only that there was some residual which might come out; the contrary was never put to him.
10. That was a significant concession on the part of West Cliff, and one which is contrary to the submissions advanced on its behalf on appeal. It is one thing for Mr Chappell to unbolt the hatch in the expectation that up to ten litres of residue would come out. That was an expected consequence of the geometry of the sump and the hatch, and evidently had happened many times before. It is another thing entirely for the sump to have contained thousands of litres of slurry.
11. I would accept that this aspect of West Cliff's case was capable of falling within issue 5(h) of the "Issues on Cross-Claim" document, and was advanced at trial (including in the 3rd and 10th references mentioned at [15] and [17] above). I would further accept that West Cliff advanced this case in its oral submissions at trial, although it goes too far to say that this was its "principal" or "primary" case. However, that paragraph must be read with a specific disavowal of a case that Mr Chappell recognised the possibility when unscrewing the last bolt that the tank was full. Paragraph 5(h) refers to Mr Chappell continuing to open the hatch "even although a potential risk of harm to Mr Corbett had been identified". The risk of harm in the present case was a deluge of slurry coming from a full tank, not the residue which might be left in the lip of the hatch after the tank had been emptied.
12. There is a further difficulty, which was emphasised by Allfab. On the way West Cliff seeks to advance its case on appeal, Mr Chappell should have delayed opening the hatch until Mr Corbett had moved further away in light of the possibility that the tank was full. That was not put to Mr Corbett. The failure to do so contrasts with the way in which the precautions advanced in the "Issues on Cross-claim" document were squarely put to Mr Chappell, as outlined above at [55].
13. That is to say, it does not appear to have been squarely put to Mr Chappell that he should have delayed opening the hatch until Mr Corbett had moved further out of the line of fire, and it certainly was not put to him that he should have delayed opening the hatch in light of the possibility that the tank was full. This was the point made by Allfab orally: "It is important that in this cross examination never did my learned friend put to Mr Chappell that he knew of the risk and cross examining about the risk and the risk of injury and he shouldn't have done it, that the risk was of the tank being full. We respectfully submit the risk that was identified by Mr Chappell and the risk in which he felt Mr Corbett would have been in the line of fire if he hadn't asked him to move out of the way was the risk of that two buckets full residual coming out from the hatch. That's specifically what he said. What my learned friend has done is taken those words, line of fire and risk, and highlighted them and heightened them and put to the witness about risk and injury and I'll prove that by going again through what he did. With great respect very good cross examination but the problem is it's not what the witness is referring to and he was never taken back by the cross examiner to that which he was referring to ..."
14. By way of summary, West Cliff seeks to advance on appeal a claim that the primary judge failed to determine a significant aspect of the case advanced at trial. It would be fair to say that at best this was but one aspect of the case advanced at trial, the major aspects corresponding to the failure to take the precautions which the primary judge addressed explicitly and at length. This aspect of the case was disavowed at the conclusion of the trial, as the primary judge with respect correctly recorded in his careful judgment. The steps on which West Cliff now rely in support of its appeal were not put to the relevant witness. And the primary judge with respect correctly regarded the idea that an Allfab employee continued to open the hatch in the belief that the tank might be full, as opposed to containing the residue of slurry that always remained, as having been disavowed by West Cliff.
15. I do not consider that error has been established in the way the primary judge proceeded.

Complaints about findings of duty

1. West Cliff's complaint that the primary judge "erred by not making a clear finding on whether Allfab owed Mr Corbett a relevant duty of care" may be outside its notice of appeal, but in any event, contrary to what was put by West Cliff, the primary judge did make a finding as to duty. His Honour said at [38] that "Allfab did not dispute that it owed a duty of care to Mr Corbett", although it denied that it had breached that duty. His Honour immediately thereafter turned to breach.
2. Although, if read literally, this portion of the judgment falls short of an explicit finding, it is clear in context that his Honour accepted what he regarded as a concession from Allfab that it owed a duty of care.
3. It will already have been seen that West Cliff's document "Issues on Cross-claims" did not draw a clear distinction between duty and breach. The precautions were repeated under both headings. But nothing turns on that, because, as the primary judge correctly stated, Allfab accepted it owed Mr Corbett a duty of care.
4. Duty was not admitted on the pleadings, and there was an inconclusive exchange at the end of the second last day where counsel for Allfab declined to admit duty, but was cut off before completing his answer. On the following day, the last day of the trial, the third page of the transcript records counsel interrupting West Cliff's submissions as to the duty owed by Allfab as follows: "TALINTYRE: Can I interrupt briefly, your Honour, because it may shorten this. What my learned friend has just said is precisely my case. It's not my case that my client did not owe a duty at all. WATSON: Yesterday it was. TALINTYRE: Well, I tried - HIS HONOUR: But in any event it's, it's - TALINTYRE: - I tried to elaborate your Honour and I was told to sit down. What I was trying to say was, my client's case is it doesn't owe a duty of care in respect of the relevant risk of injury. The relevant risk of injury being a tank being full and discharging in a uncontrolled fashion on somebody like Mr Corbett."
5. West Cliff ultimately acknowledged that "there was a kind of partial concession about duty". If this aspect of the reasons is subject to criticism, it is that the content or scope of the acknowledged duty of care is not elaborated. There was "merely a broad statement that a duty of care was owned, so we do not know what the content was". But nothing turns on that, as is implicitly recognised in the way ground 1 of West Cliff's notice of appeal has been drafted, confined as it is to breach. The primary judge's findings of no breach were dispositive of West Cliff's claim.

The failure to "positively isolate stored energy"

1. Insofar as West Cliff submitted that the primary judge had erred in relation to the failure by Allfab to have done anything in accordance with its own document to "positively isolate stored energy' this has been addressed above. The primary judge did deal with it.
2. Allfab submitted that West Cliff never formulated the precise steps that Allfab should have taken in order to "positively isolate stored energy" and that such a formulation was never put to Mr Chappell. "We did these things and then one of them said well we didn't do anything. But it was never actually said well what should they have done and we rely on that. I mean if you're going to run a case on the basis that it was something you should have done, put it to Mr Chappell and say this is what you should have done ..."
3. I respectfully agree. The Safe Work Method Statement document is problematic. A case of breach of duty based on a failure to do something must be something sufficiently clear to be articulated and, at least in a case such as the present, put to the appropriate witness.

Ground 2 - Apportionment

1. Ground 2 of the notice of appeal seeks to alter the judge's (notional) assessment of statutory contribution. Doing so is problematic. It assumes Allfab breached its duty of care owed to Mr Corbett, and would require factual findings to be made as to how that occurred. But that is not the only obstacle. A larger problem arises in relation to West Cliff's breach, because there is no good way of assessing the culpability of West Cliff. Precisely how and why its systems failed is unexplained. It strikes me as a signally potent breach of duty to sign formal documents and place locks on the isolation board so as to permit external contractors to go to clean and maintain the sump while thousands of litres of slurry remained in the sump which was to be opened. How can there be a comparative examination of "the whole conduct of each negligence party in relation to the circumstances of the accident" (Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494) when so little is known of what West Cliff did and why its systems failed?
2. It is sufficient to observe that West Cliff bears the onus of establishing error in the primary judge's notional assessment. As was said in Nominal Defendant v Dowedeit [2016] NSWCA 332 at [132], referring to Podrebersek, "It is well-established that the apportionment decision of the trial judge is 'not lightly reviewed'". West Cliff's submissions on ground 2 were very brief. I am unpersuaded that the notional assessment of the primary judge should be interfered with. Ground 2 is not made out.

Notice of contention

1. Only the briefest oral submissions were directed to Allfab's notice of contention, which sought to uphold the judgment in its favour on the basis of causation.
2. Allfab's written submissions occupied less than a page, but were directed to new factual matters, in particular, the varying viscosity of the slurry, as to which it was said that there was "some indirect evidence". True it is that there was evidence from Mr Chappell that "the valve could have plugged in magnetite". That does not sound entirely implausible, but it is expressed speculatively, and I would be reluctant to act on that evidence alone. West Cliff's written submissions did not address the factual evidence at all, and with only the briefest of oral submission by Allfab, there were no oral submissions in reply.
3. Given the paucity of submissions on the point, and the fact that the notice of contention does not arise and cannot affect the outcome of the appeal, it is inappropriate to deal with it.

Orders

1. For those reasons, I propose that the appeal be dismissed, with costs.
2. EMMETT AJA: The question in this appeal is whether the appellants (together West Cliff) are entitled to statutory contribution from the respondent, Allfab Constructions Pty Limited (Allfab), in respect of damages paid by West Cliff to Mr Leslie Corbett, who was injured in a workplace accident in a coal preparation plant operated by West Cliff. Allfab was retained by West Cliff to provide maintenance services at the plant. Mr Corbett was employed by Turbo-Vac (Australia) Pty Ltd, which had been engaged by West Cliff to provide services in connection with maintenance of the plant. He was not an employee of either West Cliff or Allfab.
3. Mr Corbett sued West Cliff and Allfab in the District Court. On the first morning of the trial, West Cliff settled with Mr Corbett, and Mr Corbett subsequently sought, and was granted, leave to discontinue his proceedings against Allfab. However, West Cliff consented to judgment in his favour in the sum of $420,000 plus costs. That left for determination West Cliff's cross claim for statutory contribution from Allfab under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) in respect of the judgment in favour of Mr Corbett. The question before the primary judge was whether Mr Corbett would have succeeded in his action against Allfab. A judge of the District Court (the primary judge) found that Mr Corbett would have failed to establish breach on the part of Allfab.
4. West Cliff appealed to this Court from the orders of the primary judge. The essence of ground 1 of West Cliff's notice of appeal is that his Honour failed to determine the principal case that it propounded in support of its contention that Allfab breached its duty to Mr Corbett. I have had the advantage of reading in draft form the reasons of Leeming JA and agree with Leeming JA that the primary judge did not fail to deal with the way in which West Cliff advanced its case and that ground 1 must fail. I also agree with Leeming JA that, while the formulation by the primary judge of the duty owed by Allfab to Mr Corbett was less than ideal, the finding that there was no breach by Allfab renders that question unnecessary. It follows, for the reasons proposed by Leeming JA, that the appeal should be dismissed with costs.
5. SIMPSON AJA: I agree with Leeming JA.

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: 11 June 2019