Tolhurst v Cleary Bros

CATCHWORDS: Negligence - mine owner contracted out loading from stockpile - stockpile collapse injuring contractor's worker - use of unsafe method of loading - mine owner's duty of care owed to worker - effect of worker's knowledge that method was unsafe - subsequent injury - causation of worker's present condition - incorrect to ask if mine injury was defining event - whether should be new trial generally or only as to damages.

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419; Amalgamated Television Services Pty Ltd v Marsden (No 2) [2003] NSWCA 186; Bankstown Foundary Pty Ltd v Braistina (1986) 160 CLR 301; Brown's Valve Service Pty Ltd v Cristina (1997) 1 VR 536; Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999} NSWCA 115; Chimaze Holding Pty Ltd v Dyson (1995) WAR 487; Commissioner for Railways v Halley (1978) 20 ALR 409; Government Insurance Office of New South Wales v Aboushabi [1999] NSWCA 396; (1999) Aust Torts Reps 81-531; J Blackwood & Son v Skilled Engineering [2008] NSWCA 142; Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552; Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; (2002) Aust Torts Rep 81-673; Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 179 ALR 321; McLean v Tedman (1984) 155 CLR 306; CASES CITED: Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174; Pateman v Higgins (1957) 97 CLR 521; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Purkiss v Crittenden (1965) 114 CLR 764; Quinn v Rocka Pipes Pty Ltd (1986) 6 NSWLR 586; Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132; Shorey v PT Ltd [2003] HCA 27; (2003) 197 ALR 40; State Government Insurance Commission v Oakley (1990) Aust Torts Reps 81-003; Stevens v Brodribb Sawmilling Co Pty Ltd (1985) 160 CLR 16; Sydney Water Corporation v Abramovic [2007] NSWCA 248; (2007) Aust Torts Rep 81-913; TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1; Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan [2001] NSWCA 381; (2001) 53 NSWLR 343; Vrahimis v Opat (1981) 27 SASR 54; Watts v Rake (1960) 108 CLR 158; Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reps 81-818.

Dean Tolhurst - Appellant PARTIES: Cleary Bros (Bombo) Pty Ltd - First Respondent Endeavour Coal Pty Ltd - Second respondent

S Norton SC & E E Welsh - Appellant COUNSEL: M Cranitch SC & S L Flett - First Respondent G M Watson SC & L M Wilson - Second Respondent

Taymor & Scott - Appellant SOLICITORS: Sparke Helmore - First Respondent Blake Dawson Waldron - Second Respondent

LOWER COURT DATE OF DECISION: 27 March 2007 (further order made 18 April 2007 under the slip rule)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40291/07 DC 4647/04

BEAZLEY JA GILES JA TOBIAS JA

Tuesday, 12 August 2008 TOLHURST v CLEARY BROS (BOMBO) PTY LTD & ANOR Judgment 1 BEAZLEY JA: I have had the advantage of reading in draft the judgment of Giles JA and agree with his Honour's reasons, save in respect of the question as to whether there should be a new trial on all issues. 2 As Giles JA explains at [141] ff, there was a serious challenge to Mr Tolhurst's credit at trial, both in relation to liability and injury, and it is for that reason that his Honour considers that the matter should be remitted on all issues. 3 At trial, Mr Tolhurst's credit was put in issue essentially in respect of three matters: the date the accident occurred; his description of the circumstances of the accident (in large part, this area of disputation related to the extent of damage to the loader); and the extent of injury, if any, that he suffered (see trial judgment at [8]). 4 Mr Tolhurst's case was that he had been injured on Tuesday, 6 November 2001. It was Mr Tolhurst's evidence that the loader had been substantially damaged in the accident. Cleary Bros contended that could not have been so, because its records revealed that the loader being driven by Mr Tolhurst at the colliery was damaged on 2 November. There was no record of damage on 6 November. 5 The trial judge did not make an express credit finding regarding Mr Tolhurst's assertion that the accident occurred on 6 November 2001. Rather, his Honour observed that Mr Tolhurst and his wife had both refreshed their recollections as to the date of the accident by reference to Mr Tolhurst's "Equipment Daily Use Reports" that he had to complete for Cleary Bros. Those reports revealed that in the three days after 6 November, Mr Tolhurst did not work at the colliery, but elsewhere, for Cleary Bros. Mr and Mrs Tolhurst had deduced that the loader was being repaired in those three days and that, therefore, the accident had happened on 6 November. Mrs Tolhurst was also adamant the accident had been on a Tuesday, 6 November 2001 being a Tuesday, whereas 2 November was a Friday. 6 Cleary Bros relied on more extensive records than Mr Tolhurst's "Equipment Daily Use Reports" to establish that the only damage to the loader in the relevant period occurred on 2 November. His Honour found, however, at [19], there were such discrepancies in Cleary Bros' records, that whilst the weight of the documentary evidence supported the likelihood that the loader was damaged on 2 November, "further and more extensive damage on 6 November cannot be excluded". His Honour also remarked upon the failure of Cleary Bros to call witnesses, who could have given evidence of the extent of the damage and the use of the loader by another employee, that may have assisted in explaining or working out the discrepancies in the documentation. 7 His Honour, at [22], without making a specific finding as to Mr Tolhurst's credit, but given "so much inconsistent and unexplained evidence", stated that he was not satisfied on the balance of probabilities that the accident occurred on 6 November, rather than 2 November 2001. 8 Mr Tolhurst's counsel had submitted to the trial judge that even if that was so and the accident had occurred on 2 November, Mr Tolhurst could still succeed. If the date of the accident was 2 November, there was potentially a Statute of Limitations question, but no defence under the Statute was raised, either in the pleadings, or at trial. 9 Without determining whether the accident occurred on 2 or 6 November, his Honour next considered whether Mr Tolhurst's description of the extent of damage to the loader could be accepted. This was relevant to the question whether an incident of any severity had occurred. 10 In this regard, his Honour substantially accepted Mr Tolhurst's evidence. In particular, he accepted Mr Tolhurst's evidence that the damage to the bucket of the loader was "extensive" and "… that the impact was sufficiently substantial as to cause [Mr Tolhurst] to be thrown forward in his seat as he described, with the result that his chest was pressed against the steering wheel, winding him, and that his head was thrown forward and jerked back at the same time." ([29]) 11 His Honour rejected the interpretation, urged on the Court by Cleary Bros, of its documentation as to the extent of the damage, which it contended was relatively minimal. There was, however, one aspect of Mr Tolhurst's evidence that his Honour did not accept, namely, in relation to the extent of damage to the windscreen. His Honour, at [29], referred to the evidence of Mr Lemenkuehler, whose evidence otherwise corroborated that of Mr Tolhurst's, and concluded that Mr Tolhurst's evidence as to the damage to the windscreen was "a dramatisation". His Honour, at [26], recorded Mr Lemenkuehler's evidence to the effect that there was a crack in the windscreen "about a foot long". His Honour also recorded Mr Lemenkuehler as saying that the windscreen could not be described as being "shattered". 12 His Honour's findings on this issue needs to be considered with a little care, having regard to the evidence that was in fact given. 13 Mr Tolhurst's evidence was "the windscreen was smashed. It still held up but it was all smashed" (emphasis added). There was no elaboration, either in his evidence in chief, or in cross-examination, of what Mr Tolhurst meant by that evidence, nor was any more precise particularisation of the damage elicited. Nor was he cross-examined to the effect that his description of that damage was exaggerated. 14 Mr Lemenkuehler, who observed the damage to the loader at a distance of about 20 feet, said he observed "a crack in the windscreen". In cross-examination, Mr Lemenkuehler said the crack in the windscreen was "around about a foot long" and agreed that it was still possible to see through it. He was then asked, "You wouldn't call it shattered?" (emphasis added), to which he replied, "No, not that I could see, no". 15 Although it was open to his Honour to find that Mr Tolhurst's evidence on this issue was not consistent with that of Mr Lemenkuehler's, I do not consider the differences in the evidence to necessarily have a significant adverse credit impact, nor do I consider that his Honour made such a finding. It is apparent, however, that his Honour considered Mr Tolhurst's statement that the windscreen was "all smashed" did not accurately state the damage, but was a "dramatisation" of the damage. However, there could be a difference in meaning between "all smashed" and "shattered" and it is to be noted that the cross-examination of Mr Lemenkuehler did not accurately reflect Mr Tolhurst's evidence. It is also possible that a crack in a windscreen "about a foot long" could reasonably correspond to a description that the windscreen was "all smashed". However, none of this was explored in the evidence and, in any event, was largely irrelevant, given his Honour's finding that there had been a significant impact. 16 His Honour next dealt with Mr Tolhurst's credit insofar as it related to his injuries. Before examining his Honour's credit findings on that issue, this is an appropriate place to observe that in respect of liability, there was no substantially successful attack on Mr Tolhurst's credit. His Honour was satisfied that a significant incident occurred, essentially as described by Mr Tolhurst, on either 2 or 6 November 2001. 17 Mr Tolhurst's credit was, however, successfully challenged in respect of his claim for damages. His Honour made a number of findings in this regard. First, he considered that Mr Tolhurst's explanation for making no formal complaint of his injury, namely, that he was concerned about losing his job, was difficult to reconcile with his medical and work history, both before November 2001 and after July 2002: [32]. His Honour, at [35], rejected Mr Tolhurst's argument that the incident in November 2001 was the precipitating cause of his neck pain. This finding was based upon medical records that showed Mr Tolhurst had complained of neck pain connected with his employment on at least two occasions between June 2000 and February 2001. This might have been thought to be inconsistent with some of the histories that Mr Tolhurst gave to medical practitioners. For example, Dr Bock, who examined Mr Tolhurst at the request of Cleary Bros, in respect of his subsequent injury in July 2002. Dr Bock noted that Mr Tolhurst had told him that he had "no previous neck injury", although he recorded that Mr Tolhurst had informed him that he had sustained "several jolting injuries whilst driving heavy machinery". Likewise, in a report provided by Dr Wallace, no history was recorded of any pre-existing injury to either Mr Tolhurst's neck or chest. 18 At [49], the trial judge recorded that the "pre-November history of neck pain" failed to appear in the histories Mr Tolhurst gave "to both treating and examining doctors after mid-2002". His Honour also recorded that Mr Tolhurst "went to particular lengths" in his evidence "to deny that he had ever been involved in a motor vehicle accident" in which he had sustained a whiplash-type injury prior to the November 2001 accident, as recorded by a treating chiropractor, Mr Cushan. His Honour went on to observe, however, that there was no evidence of the treatment of neck pain connected with a motor vehicle accident and commented that the importance of that incident remained unresolved. That may not have been an accurate factual finding. Mr Tolhurst gave evidence that the motor vehicle accident had occurred whilst he was reversing before filling his car at a service station. That is an undoubted explanation as to why it was unlikely Mr Tolhurst required treatment. It was a low-speed accident. 19 Many of the credit findings by his Honour were made in the context of his consideration, at [48], of the question whether the accident in November 2001 "was a substantial and independent cause of his long term problems". As Giles JA has pointed out, that was not the correct question for determination. Rather, the question was whether that incident was a cause of his ongoing problems. I make that point to emphasise that the credit findings made by his Honour were made in a context where his Honour was pursuing an erroneous legal enquiry, and the relevance to be attached to the credit findings has to be assessed in this light. 20 It is against this background that the question as to whether the matter ought to be remitted for hearing on all issues, that is, liability and damages, needs to be determined. Questions of credit relating to one issue may often reflect on credit issues generally, in the sense that a person who is prepared to fabricate or exaggerate evidence may be prepared to do so generally. 21 However, in this case, I am not satisfied that the matters in respect of which there were credit issues on liability so impacted upon Mr Tolhurst's general credibility that there ought to be a trial on all issues. On the evidence accepted by the trial judge and on findings not disturbed by this Court, in circumstances where a vigorous challenge was made to his evidence, Mr Tolhurst has established that an accident occurred in November 2001, which was of some seriousness. Accordingly, in my opinion, the proceedings ought to be remitted to the District Court for a retrial on the question of damages, including causation only. 22 Having reached this conclusion, it is necessary to consider what order should be made as to the costs of the trial before Phegan DCJ. 23 On the approach I have taken, the result of the appeal is that Mr Tolhurst has been successful in maintaining his verdict on liability against the respondents and there has been no finding of contributory negligence. At trial Mr Tolhurst was awarded damages. His appeal on quantum has succeeded because he established that the trial judge's reasoning in respect of causation was flawed. 24 On his case, Mr Tolhurst claims to be entitled to a higher award of damages because the accident was a cause of his continuing disabilities. The trial judge had rejected that case. Nonetheless, the fact that Mr Tolhurst suffered some damage in the accident entitled him to an award of damages. The retrial on damages will not alter that fact. In those circumstances, as he succeeded at trial and nothing that this Court has determined will alter that result, I consider that Mr Tolhurst should have his costs of the first trial, notwithstanding that there is to be a retrial limited to the question of damages. Accordingly, the costs orders made by the trial judge in favour of Mr Tolhurst are to remain in place. 25 I propose the following orders:

2. Set aside Orders 1 and 2 made by the trial judge on 27 March 2007 and order in lieu: (a) Verdict and judgment against the first defendant/first respondent (Cleary Bros (Bombo) Pty Limited) in an amount to be assessed; (b) Verdict and judgment against the second defendant/second respondent (Endeavour Coal Pty Limited) in an amount to be assessed;

3. Remit the proceedings to the District Court for a new trial limited to the question of damages, including causation;

4. The first and second respondents are to pay the appellant's costs of the appeal and his costs of their respective cross-appeals. 26 GILES JA: Mr Dean Tolhurst was employed as a plant operator by Cleary Bros (Bombo) Pty Ltd ("Cleary"). Cleary supplied and operated earthmoving equipment and other heavy machinery at a colliery owned and operated by Endeavour Coal Pty Ltd ("Endeavour"). 27 In early November 2001 Mr Tolhurst was using a front end loader to take coal from a stockpile at the colliery in preparation for loading into trucks. The face of the stockpile collapsed, forcing the loader backwards. Mr Tolhurst was thrown forward against the steering wheel and his head was thrown forward and jerked back, and he suffered injury to his chest and neck. 28 In proceedings brought in the District Court against Cleary and Endeavour each was found liable to Mr Tolhurst, and Phegan DCJ ordered that there be verdicts and judgments for Mr Tolhurst against Cleary for $35,966 and against Endeavour for $15,000. His Honour found that there should be equal contribution between Cleary and Endeavour. 29 None of the parties was content. Mr Tolhurst appealed on quantum, in substance against the trial judge's findings as to causation of his present condition in respect of which he claimed compensation. Cleary did not appeal on liability, but appealed against the trial judge's finding that Mr Tolhurst had not been contributorily negligent. Endeavour appealed against the findings that it was liable to Mr Tolhurst and that Mr Tolhurst had not been contributory negligent. Cleary and Endeavour abandoned their appeals against the equality of contribution. 30 For the reasons which follow, in my opinion the trial judge correctly found that Endeavour was liable to Mr Tolhurst and that Mr Tolhurst had not been contributorily negligent, but was in error in his findings as to causation. A new trial is regrettably necessary, and should be a new trial generally.

The collapse of the face of the stockpile 31 Mr Tolhurst had been employed by Cleary for about three years, driving a variety of heavy vehicles and earthmoving equipment. He had been working at the colliery for about three months. For a short time prior to the November 2001 incident he had been driving a loader at the stockpile. The loaders were large vehicles, weighing about twenty tonnes with the capacity to lift about ten tonnes of coal in the bucket. 32 There was considerable controversy at the trial over whether the incident causing injury to Mr Tolhurst occurred on 2 November 2001 or 6 November 2001. The trial judge did not find it necessary to decide between these dates, and it was not suggested on appeal that the precise date mattered. 33 Coal produced at the colliery was put onto stockpiles, and then loaded from the stockpiles into trucks to be taken elsewhere. Some stockpiles were made by coal placed from conveyors, in which case there was little compaction of the coal. Other stockpiles, including stockpile No 2 where Mr Tolhurst was using the front end loader, were made by trucks dumping coal on the top of the stockpile and slowly building it up. A stockpile so made was subject to compaction from vehicular traffic. As explained in the report of Dr Leon Thomas, "[t]he combined effects of compaction, segregation, water seepage through the pile, and coal degradation with time, may cause coal to become a coherent mass rather than a granulated pile". 34 Stockpile No 2 was considerably higher than the top of the cabin of the front end loader (which was about four metres high). The coal was not free-flowing, but had compacted as a result of the formation and aging of the stockpile. Taking coal from the stockpile created what amounted to a near-vertical cliff face. The bucket of the loader was then worked up the face so created, and as it was worked up the face the coal at the top of the stockpile would loosen, shear off and fall to the ground. 35 It was necessary for the operator to anticipate the collapse of the face, and to reverse the loader out of the way when the coal at the top of the face showed signs of falling. An imminent collapse could be anticipated when the unsupported coal began to crack and dust could be seen coming from the cracks. The operator had then quickly to reverse the loader in order to get it out of the way before the coal fell. Once the coal had fallen and formed a batter, it could easily be scooped up in the loader's bucket. 36 On the day of the incident Mr Tolhurst had been working, with two other plant operators, loading coal from the stockpile into trucks. His shift ended at 4 pm, but he was asked to stay on to "clean up the loose stuff" at an end of the stockpile and take more coal from its eastern face ready for loading onto trucks. 37 The face at which he was working was about 30 metres high. When loosening part of the face Mr Tolhurst saw dust coming from cracks at either end. He put the loader into reverse and lowered the bucket to the ground, lowering the bucket lest it being caught under the falling coal when raised caused the loader to be tipped forward. The falling coal overtook the loader: although Mr Tolhurst reversed from beneath it, when the coal hit the ground a wave of coal buried the bucket and drove the loader backwards. The bucket was ripped away, flying coal damaged the windscreen of the loader's cabin, and although he was wearing a seat belt Mr Tolhurst was thrown against the steering wheel and his head was jerked forward and back.

Endeavour's liability 38 Loaders had been used by Cleary in this manner at the stockpile, and at other stockpiles at the colliery, for some time. The procedure had not been developed in any formal manner, or recorded in any kind of manual for management of the stockpiles. Mr Tolhurst was not given instructions when he began the stockpile work, but learnt by watching what other plant operators did. 39 The procedure was known to be dangerous. Cleary's senior plant operator, Mr Glenn Grogan, so acknowledged, and agreed that the only "safety technique" was to back off if the coal face was collapsing and that it was not possible to predict how much of the face would fall. The report of Dr Thomas, who was highly qualified in mining engineering, was emphatic that coal should not have been loaded from a high, compacted, almost vertical face with a front end loader because of the danger of "wedge failure". His report included reference to a Safety Alert issued in March 1999 by the New South Wales Department of Mineral Resources, following a collapse on a loader used to take material from a 5 to 6 metre high dust stockpile in a quarry, warning against use of loaders under vertical faces. 40 According to Dr Thomas, for safe recovery an excavator should have been used if the height of the stockpile so permitted, but for the high stockpile No 2 a bulldozer should have been used to push coal from the top of the stockpile and so provide loose coal for the loader to pick up and maintain a safe slope for the working face. He said also that, because the colliery was using more than one contractor to move coal and small contractors might not have had the necessary training and expertise - "2. … the mine management should have ensured that there was a uniform set of safety rules and guidelines for building and recovering stockpiles. The rules should have included not using loaders on high faces. 3. Those rules and the corresponding safe work practices should have been incorporated into the contracts of work for each contractor on site, and all employees of those contractors should have received a site induction that covered the rules and safe practices. The colliery should have trained its supervisors to understand and enforce those rules. When tasks such as recovering No 2 stockpile were allocated, the colliery supervisor should have checked that the contractor and his employees knew how to carry out the job safely. 4. The colliery supervisors should have had the work records for contractors' employees available to make sure that all operators were sufficiently experienced to work on site, especially any operator who would be working alone. Contractors should have been instructed to notify a mine supervisor if an operator was loading from a stockpile by himself so that a check could be made on whether the situation was safe." 41 Endeavour submitted at trial that it neither owed a duty of care to Mr Tolhurst nor breached a duty of care, because it had engaged Cleary for the loading operations amongst other earthmoving and like activities and it was entitled to leave safe procedure for the loading to Cleary. It particularly relied on Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; (2002) Aust Torts Rep 81-673, in which it was held that the need to secure a ladder could be left to an experienced tradesman engaged in installing roof cladding. 42 In dealing with duty of care the trial judge said - "72 … That submission overlooks one important distinction between Kolodziejczyk and the present case. In Kolodziejczyk the defendant was not the occupier of the premises on which the plaintiff was injured. In this case the second defendant, as occupier of the premises, contributed to the danger which caused the plaintiff's injury. 73 According to Mr Grogan he was subject to the directions of the second defendant and in particular a Mr Antonelli, the second defendant's on site coordinator. He would be told by Mr Antonelli what coal was to be loaded each day. On that uncontradicted evidence, contrary to the second defendant's submissions, the second defendant remained in control of the site and in particular was in a position to stockpile the coal in such a way that it did not pose a danger to plant operators loading the trucks. In those circumstances the second defendant owed a duty of care to the plaintiff with regard to the condition of the stockpile. 43 As to breach of duty by Endeavour, the trial judge relevantly said at [74] that it should have been aware of the Safety Alert to which Dr Thomas had referred and its recommendation that all mines have safe operating procedures in place for the management of stockpiles and should train all employees in them, and - "Mr Antonelli was not called to give evidence and I am entitled to infer that his evidence would not have assisted the second defendant: Jones v Dunkel (1969) 101 CLR 298. Dr Thomas' recommendation of the use of a bulldozer as the most effective means of reducing the risk of injury from the stockpile was a measure which could most easily have been undertaken by the second defendant who was responsible for the formation of the stockpile in the first place. The second defendant was in breach of its duty to the plaintiff." 44 Endeavour submitted on appeal that it had not owed Mr Tolhurst a duty of care, that it had not breached any duty of care which it owed, and that in any event "the incident was Mr Tolhurst's own fault". The last submission was put as a matter of causation, and it was said that a submission "along these lines" had been made to the trial judge but had not been addressed in his Honour's reasons.

(a) Duty of care 45 Endeavour submitted that the stockpile was under Cleary's control; it said that Cleary had a supervisor from whom, and whom alone, Mr Tolhurst took instructions, and its own crib room near the stockpile and a separate area where its plant and equipment was kept. While it recognised that Mr Grogan had said that Mr Antonelli instructed where to take coal and the amount of coal to be taken, and that he believed that Mr Antonelli or someone in his position could direct that Cleary do something in another way if it was adopting an unsafe practice or tell it to stop doing what it was doing, and could even remove Cleary from the site in the case of misconduct, it was said that there was no evidence that that had ever been done. Endeavour repeated its reliance on Kolodziejczyk v Grandview Pty Ltd, referring to other cases also said to illustrate the principle that once Endeavour contracted the work to "a skilled organisation, Cleary Bros", it owed no duty of care to Cleary's employees. It submitted that the trial judge was in error in regarding it as occupier of the site and in regarding either being the occupier or remaining in control of the site as sufficient for a duty of care. 46 Perhaps inconsistently, Endeavour also submitted that it had in place the system of a bulldozer pushing coal from the top of the stockpile. The submission was said to go to duty of care as well as breach of duty. Endeavour suggested that while the system was not being followed on the occasion of the November 2001 incident, that was probably because Mr Tolhurst had been asked to stay on after the end of his shift. If the existence of the system as Endeavour's system were made good, that would rather negate its submission that the stockpile was under Cleary's control. 47 It is convenient to deal at once with the submission that a bulldozer system was in place. Endeavour referred to the evidence give by Mr Grogan, when he was taken to the Safety Alert to which Dr Thomas had referred - "Q. In fact the practice that you blokes employed at the West Cliff site was in fact using loaders under vertical faces of the stockpile, were you not? That's exactly what you were doing, is that right? A. Yes. But this, I can't see how this document's right anyway. Five to six metres in an 88 loader would reach more than that anyway, so it couldn't be under a vertical face. Q. Maybe so, but it's about using the machine against the vertical face of the stockpile that you fellows were doing, wasn't it? A. It was --- Q. Is that right? A. It was practised by BHP. Once the stockpile got to a certain height, it was always pushed ." (emphasis added) 48 It will be seen that Mr Grogan spoke of BHP, not Endeavour. Endeavour was a BHP subsidiary. There was often reference to BHP in the evidence meaning the owner and operator of the colliery, in fact Endeavour. 49 Mr Grogan's mention of the stockpile being pushed was not taken further. Assuming that the pushing was by a bulldozer, at what height was not explored. Greater clarity did not come with Mr Grogan's evidence, with other relevance to which I will refer - "Q. You don't move on that site unless BHP tells you what to do, is that right? A. Exactly right. Q. All the directions that come to you come from BHP, is that what you're saying? A. Exactly right. Q. And the way you do the job comes from BHP, is that what you're saying? A. Exactly right. Q. And how you do the job comes from BHP? A. Exactly. Q. Are you also saying to his Honour this practice of taking coal from directly beneath the vertical site was a direction that you guys were given by BHP? Was that practice developed by BHP and you were instructed to employ that practice to whin the coal? A. You weren't, we weren't, they, they had specific heights of a coal face that we were working under and anything over a certain height was pushed ." (emphasis added) 50 Mr Tolhurst gave evidence that Cleary did not have a bulldozer on site, although "Simpsons did". He was not sure when Simpsons' bulldozer had last worked "but generally if they wanted to get another dozer they'd like to get Cleary's dozer in, so Cleary's … ". The answer was unfinished, and was obscure and was not clarified. He said that although the front end loaders could be fitted with a blade rather than a bucket so as to operate effectively as a bulldozer, none of Cleary's loaders was so configured as at 6 November 2001. He said - "Q. In fact, was there any piece of equipment pushing coal around on the surface, on the top of the coal pile over its edge on that day? A. No." 51 Endeavour referred also to part of the history in the report of Dr Patrick, "Just before this, there had been a small dozer up on top pushing coal over". Mr Tolhurst denied telling this to Dr Patrick, suggesting that he may have said that "by law there should've been a dozer on top". It was not put to Mr Tolhurst that ordinarily a bulldozer pushed coal from the top of the stockpile. 52 That there was such a system was wholly at odds with the evidence Mr Tolhurst gave of the procedure learnt by him by watching what other plant operators did, and with Mr Grogan's agreement that the normal practice was "to take coal from the face of the stockpile and keep a lookout along the top of the stockpile for puffs of coal dust which would indicate that the face was going to come down". No one from Endeavour gave evidence. 53 The trial judge said at [69], referring to Dr Thomas' report - "The caution against the use of front end loaders on vertical faces is relevant to the first defendant's liability. However, the use of a bulldozer to push coal down from the top of the dump was not a measure which the first defendant could be expected to have taken on the evidence. According to the plaintiff the first defendant did not have a bulldozer on site on the Westfield Colliery, although there was a bulldozer on site belonging to one of the other contractors. It was the plaintiff's evidence that a 980C could be fitted with a blade instead of a bucket and used as a bulldozer, but that evidence was not taken any further. In those circumstances the only defendant who could be regarded as failing in its duty in not using a bulldozer in the manner described by Dr Thomas was the second defendant. For that reason I will return to that aspect of Dr Thomas' report in the context of the second defendant's liability." 54 From this it appears that the trial judge found that a bulldozer was not ordinarily used on stockpile No 2 to push coal from the top of the stockpile. I do not think that this Court should find that it was. 55 The contract between Endeavour and Cleary was not in evidence, but from Mr Grogan's evidence earlier set out Endeavour told Cleary "how you do the job". There was some evidence going to the relationship between Endeavour and other contractors working at the colliery. Mr Ralph Lemenkuehler worked at the colliery as a plant operator employed by another contractor. He agreed that he was "under the general control of the allocater [sic] or site supervisor of BHP", and that BHP directed "what to do and where to go" and "it was their operation and they ran it". There were BHP site supervisors, Mr Antonelli being one, and - "Q. And what control did he have over you? A. Basically supervising us. If there was a problem on site we'd have to contact him or our company. Q. And had you ever contacted him from time to time? A. Yes I have. Q. Did he answer your question by directing you what to do? A. Yes he has, yep. Q. And to your knowledge did he also tell your boss where and what had to be done? A. Yes. OBJECTION (MR WATSON) Q. Did he ever do that in your presence? A. Yes he did, yes." 56 There was evidence from Mr Tolhurst suggesting that Mr Antonelli took an interest in the safety of the loading procedure. Mr Tolhurst said of a conversation with Mr Antonelli - "Q. And do you remember where that conversation was? A. He was in the weighbridge and I was in front of the stockpile ready to load out trucks. Q. And what was that conversation, who said what to whom? A. He was just telling us the reason why we were around that side loading the trucks because of the ash content that's in that side of the stockpile, he asked me if I felt comfortable working there, I said, it's not a face, its not undermined and it's got a bit of a batter on it, so the material was rolling down the side of it, and it was continually doing that as we were working away, so, I said "I should be fine there". Q. And what did he say? A. 'No worries'." 57 Although the trial judge did not refer to this evidence, I see no reason why it should not be accepted, particularly when Mr Antonelli was not called. 58 It may be proper to infer that the contract between Endeavour and Cleary gave Endeavour the power to direct how Cleary should take coal from stockpiles, at least to the extent of forbidding a dangerous procedure, and in fact it seems that Endeavour did exercise control. So far as Endeavour's submission rested upon contracting with "a skilled organisation, Cleary Bros" there was no direct evidence that Cleary had experience and expertise in taking materials from stockpiles with the particular considerations of which Dr Thomas gave evidence. From the way its loader drivers were allowed to follow the dangerous procedure which brought Mr Tolhurst undone, it did not. 59 In my opinion, Endeavour did owe a duty of care to Mr Tolhurst. 60 In Stevens v Brodribb Sawmilling Co Pty Ltd (1985) 160 CLR 16 it was held that the sawmiller owed a duty of care to a trucker who was injured by the negligence of a snigger, both the trucker and the snigger being independent contractors, because although the fellers, sniggers and truckers were responsible for their own safety in carrying out their own functions they had to rely on the care and skill of the sawmiller in the arrangements it made for the disposition of their work and on the care and skill of the persons engaged by the sawmiller in the execution of the work. In a passage frequently since cited, Mason J said at 31 - "The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines." 61 Brennan J, who also agreed generally with the reasons of Mason J, said at 47-8 - "An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk ( Sutherland Shire Council v Heyman ) and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility." 62 At the heart of this is the need to take care that there is a safe system of work in the exercise of the entrepreneur's overall control of the operations. The need to take care may be in the selection of competent contractors, in retaining a power to control their activities, in co-ordinating their activities or in other ways, including in relation to the conditions in which the contractors must do their work. 63 It was said by Heydon JA in Kolodziejczyk v Grandview Pty Ltd at [53] that the duty recognised by Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd "only arises in the category of cases discussed by Mason J, namely where there is a need for directions to be given as to when and where work is to be done and for the coordination of various activities". That was an adequate statement on the facts of that case, but, with respect, the need to take care that there is a safe system of work may call for something more, and so there may be a duty of care beyond the category of cases involving coordination of activities. 64 Thus in Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 Ipp JA, with whom Mason P and McColl JA agreed, said - "79 The judgments of Wilson and Dawson JJ and Deane J in Stevens are authority for the proposition that an entrepreneur may owe a duty of care to an independent contractor when, according to the general law of negligence, the circumstances are such that a duty arises. The existence of the duty is not conditional on the existence of any particular factual element. It is the substantive content of the relationship between the parties that is decisive. As it was put by Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan (2002) 194 ALR 337 at 375, albeit in relation to a different context, the "totality of the relationship between the parties ... is the proper basis upon which a duty of care may be recognised.'

84 In my opinion, nothing said by Mason J or Brennan J in Stevens , or Heydon JA in Kolodziejczyk prevents the general law of negligence imposing on an entrepreneur a duty of care owed to an independent contractor. Such a duty may arise in circumstances where there is no need for the entrepreneur to give directions as to when and where the work is to be done and to co-ordinate the various activities, but where, for other reasons, reasonable care on the part of the entrepreneur affects the way in which the work is to be undertaken and the safety of the work site, and where other considerations (not applicable in Stevens and Kolodziejczyk ) such as vulnerability, inequality of bargaining power, control, and the other manifold factors that the law recognises as being relevant to the existence of a duty of care, are present." 65 In Rockdale Beef Pty Ltd v Carey it was held a duty of care was owed to the independent contractor, a stockman injured when the gate system in the entrepreneur's feedlot exposed him to risk in rounding up a recalcitrant steer, because (at [92]) - " … to the extent that the configuration of the work site caused there to be a safety risk in the work Mr Carey was directed to carry out, Rockdale came under a duty to use reasonable care to avoid or minimise that risk. That is to say, Rockdale was required to exercise reasonable care to avoid or minimise the risk of injury caused by the configuration of the work site. This involved prescribing a safe system of work." 66 That there may be a duty of care although there is not interdependence of contractors' activities calling for coordination was recognised in Sydney Water Corporation v Abramovic [2007] NSWCA 248; (2007) Aust Torts Rep 81-913, see at [33] per Santow JA (who dissented in the result) and at [71]-[72] and [98] per Basten JA (with whom Mason P agreed). In that case, as in the present case, the putative duty of care was owed not to the independent contractor but to an employee of the independent contractor. That may affect the power to direct and control the independent contractor's discharge of the duty it owes to the employee, but an entrepreneur with overall control of the operations of which the contractor's activities, and thus the employee's work, are part may have an important role to play in the safety of the system of work which the contractor/employer can not fulfil. 67 In Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 Basten JA, with whom Beazley and Ipp JJA agreed, said at [42] - "The duty of a head contractor is sometimes discussed by way of exceptions to the general rule that a principal is not liable for the negligent conduct of its independent contractor: see, eg, Almeida v Universal Dye Works Ltd (2000) 103 IR 433 at [148]-[150] (Santow AJA). An alternative approach is to address the duty of care owed by the head contractor as a separate issue, regardless of the roles of any independent contractors or sub-contractors, which may also be involved in the conduct in question. The latter approach was adopted in Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132, Ipp JA (Mason P and McColl JA agreeing). The present case was addressed on the latter basis, which is appropriate to its circumstances." 68 His Honour observed that the reasoning of Ipp JA in Rockdale Beef Pty Ltd v Carey was based on the approach adopted by the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd, and cited from [84] in Rockdale Beef Pty Ltd v Carey. 69 Contrary to Endeavour's submission, engaging an independent contractor is not the passport to freedom from a duty of care owed to the contractor. Nor does it automatically negate a duty of care owed to the contractor's employee, as is shown by the numerous cases where the user of the services of the employee of a body hirer has been held liable such as TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1; although the contractor's responsibility for performance of its work will be material to what may be required of the entrepreneur in discharging any duty of care it owes. 70 In his discussion of the cases in Rockdale Beef Pty Ltd v Carey Ipp JA cited at [81] from Chimaze Holding Pty Ltd v Dyson (1995) WAR 487, where at 490 Rowland J said of an independent contractor that "his method or system of work was known by, and effectively dictated by, the appellant, which gave rise to a relationship of proximity and the duty of care … ". Proximity is no longer in favour as the lodestone, but like considerations are material when determining whether a duty of care is owed. Effective dictation can come from the conditions in which the independent contractor must do its work. 71 In the present case Endeavour made the stockpiles from which Cleary had to take coal. For a stockpile of the height of stockpile No 2 no one suggested the use of an excavator, and the height and the compaction of the coal meant that in taking the coal using a front end loader there was risk of injury from collapse of the face. This was not a remote possibility, but a plain enough danger. Cleary had to work subject to the conditions of height and compaction, and the consequent risk. 72 As I have said, the contract between Endeavour and Cleary was not in evidence. A description in the evidence was that Cleary had contracted "to provide loader duties for the purpose of loading coal into trucks for the purpose of being transported from the mine site". There was reference also to its plant operators driving dump trucks, and in agreeing that "the vast majority of the work that was done by Cleary … was moving coal from the stockpile onto trucks for transportation elsewhere" Mr Grogan added, "and dumping of coal". In the rather unsatisfactory state of the evidence, it is not clear whether the contract required Cleary to bring in its own bulldozer if that were necessary in order to follow the safe procedure of which Dr Thomas wrote, although the evidence of Mr Grogan suggests that Endeavour had an available bulldozer. 73 It may be inferred from the evidence of Mr Tolhurst and Messrs Grogan and Lemenkuehler that Endeavour retained sufficient control over Cleary's performance of its activities as contractor that it could direct Cleary not to use an unsafe procedure, whereupon either Cleary or Endeavour had to provide a bulldozer. In my opinion, having created the conditions in which there was risk to the loader drivers in taking coal using front end loaders, and retaining that extent of control, Endeavour owed to the loader drivers a duty of care in the provision of a safe system of work, and could not simply say that it had contracted the loading activities to Cleary. 74 Rather in passing, Cleary drew attention to s 37 of the Coal Mines Regulation Act 1982 (since repealed) providing that the manager of a mine "shall have full charge and control of … all operations at the mine". It suggested that Endeavour was thereby charged with a non-delegable duty. This does not seem to have been raised at trial, and was not further explored on appeal. I express no view upon it.

(b) Breach of duty 75 Endeavour submitted that the trial judge's reliance on the Safety Alert was misplaced because it was not shown that it was, or was likely to have been, received by Endeavour. It also submitted that Mr Grogan had suggested that it did not apply to the circumstances at the colliery, presumably meaning that bulldozers were in fact used; for the reasons I have given, that should not be found, but in any event it does not meet the Safety Alert's point about safe procedures and training. Endeavour said that it was not reasonable that it should have acted to remove the risk, which it described as a risk "deliberately created by Mr Tolhurst", because it had not been shown that the unsafe procedure had come to Endeavour's attention or that Mr Antonelli or anyone else at Endeavour was sufficiently skilled to provide meaningful supervision, and provision of supervision would defeat the purpose of engaging Cleary as the skilled contractor. 76 Endeavour should have been, and must have been, aware of the procedure used by Cleary, and the risk of injury to the loader drivers was plain. Although not expressly, the trial judge must have found that Mr Antonelli, Endeavour's site coordinator, was aware of the procedure being used by Cleary. The procedure had been used for some time, Mr Grogan said "for a lot of years". That Mr Antonelli was aware is an inference which I would draw, with greater comfort when Mr Antonelli was not called. 77 If Endeavour continued to stockpile coal in the manner it did, a reasonable response to the risk of injury to Cleary's loader drivers was to take steps to see that the coal was bulldozed from the top of the stockpile, whether by Cleary or by Endeavour, and to exercise control over Cleary so that the coal was not taken from the stockpile using the dangerous procedure. A first step would have been putting in place rules of safe practice as spoken of by Dr Thomas. They could have been incorporated in the contract with Cleary, but even if not so incorporated they could have been put in place by Endeavour as the owner and operator of the colliery. So far as the evidence showed, Endeavour simply left it to Cleary (and as I have mentioned, there was no direct evidence that Cleary was relevantly experienced and possessed of expertise). In my opinion, there was breach of the duty of care.

(c) Causation 78 The causation submission began with reference to evidence that Mr Tolhurst was a licensed and experienced loader driver and had received training in safe practices; however, it was not shown that the training extended to the situation at the colliery, and it was shown that his experience did not. 79 The submission was specifically founded on Mr Tolhurst's evidence that he knew that collapses of the kind which occurred did occur from time to time, that the procedure involved excavation of the face of the stockpile in order that they would occur, and - "Q. That's precisely the task upon which you were engaged on the day, whichever day it was, that you say you had this accident, of excavating the face and waiting for the face to collapse? A. Yes. Q. You made the judgement about whether that was safe or not didn't you? A. Yes. Q. And it was your call? A. Yes. Q. Your call based upon your training and experience? A. And due to not into a position to say anything either. Q. Is your answer to my question yes, that it was your call based upon your training and experience? A. Yes. Q. And the fact the danger which you were inducing to occur did in fact occur? A. Yes. Q. And on your version of the facts, if accepted, it was precisely the danger that you were inducing which caused your injuries? A. Yes." 80 Endeavour submitted that Mr Tolhurst had a responsibility to look after his own safety, and was responsible for his "decision making" in this case. However, Mr Tolhurst was using an unsafe procedure which he was unlikely to have been using if there had been bulldozing of coal from the top of the stockpile or if Endeavour had intervened in the way Cleary was taking coal from the stockpile. As well, the answer, "And due to not into a position to say anything either" is apposite. Mr Tolhurst was Cleary's employee. He was following Cleary's procedure, learnt from observation. He was realistically not in a position to do otherwise. It is not correct, in my opinion, to say (as Endeavour's submissions put it) that Mr Tolhurst "deliberately set about creating the danger" so that what happened was his own fault. I do not agree that his conduct, rather than that of Endeavour, was the cause of the November 2001 incident.

Contributory negligence 81 The trial judge's reasons on this subject were - "75 The method adopted by the plaintiff to remove coal from the face of the stockpile was consistent with the practice regularly employed by the first defendant and, on the evidence of Mr Grogan, was the method which the first defendant expected the plaintiff to adopt. The practice of watching for the signs of a collapse of the coal face was evidence of knowledge on the part of the first defendant and its plant operators of the danger implicit in this method. The plaintiff was clearly aware of the need to be alert and to reverse the machine out of the path of the coal upon the first signs of collapse. He was therefore aware of the danger. However, he continued adoption of the practice endorsed by his employer even in the face of a danger known to him did not amount to contributory negligence. The constraints on an employee such as the plaintiff not to refuse to be part of a practice, even when obviously dangerous to him, deprives him of any real freedom of choice if that practice is endorsed by the employer. It cannot be said in those circumstances that the employee failed to exercise reasonable care for his own safety. Although the second defendant was not the plaintiff's employer, the plaintiff is entitled to rely on the same reasoning with regard to any action which he is able to take against the second defendant to defeat the application of the defence of contributory negligence."

(a) Cleary's submissions 82 Cleary submitted that, being satisfied that Mr Tolhurst was aware of the risk of injury, it was necessary that the trial judge assess whether his conduct in accepting that risk departed from the standard of care of the reasonable man. It submitted that his Honour had not done so, and that it "is not correct to say that an employee is bound to follow the directions of his employer or controller when such directions have an obvious risk of injury to that employer [sic: employee]". It submitted also that the trial judge had "failed to assess the various particulars of contributory negligence pleaded against the appellant". 83 The particulars were extensive, and appeared to come from a database rather than an intellectual exercise. Cleary's written submissions at trial relevantly adopted Endeavour's written submissions, which were that the facts on which it was said that Mr Tolhurst's injury was his own fault were "relevant to contributory negligence" and "the kind of circumstances where a Plaintiff's claim should fail". Cleary does not seem to have relied at trial on all the particulars of contributory negligence, for good reason, and the trial judge did not have to canvass them. It was appropriate for the trial judge to come to his decision on the evidence and the submissions, not on the largely meaningless particulars of contributory negligence. 84 The trial judge did assess whether Mr Tolhurst "failed to exercise reasonable care for his own safety", and in doing so did not say that Mr Tolhurst was bound to follow Cleary's directions. There was neither failure nor error as submitted by Cleary. 85 It was open to the trial judge to pay regard Mr Tolhurst's position as an employee following the procedure expected of him by his employer, and to conclude that he was exercising reasonable care in the circumstances in which he was acting. As was said by Mason, Wilson, Brennan and Dawson JJ in McLean v Tedman (1984) 155 CLR 306 at 315, in considering whether there was contributory negligence by an employee in a case in which an employer has failed to provide a safe system of work "the circumstances and conditions in which he had to do his work must be taken into account". In that case the garbage collector was following a dangerous practice involving running across the road, and their Honours considered that there was "mere inadventure, inattention or misjudgement" in the conditions of poor light, preoccupation with the matter at hand, carrying the garbage humper and "(e) in order to retain his employment as a garbage collector he was expected to run across the road and keep up with the truck as it moved forward". 86 An illustration of regard to the employee's position may be found in Vrahimis v Opat (1981) 27 SASR 54. The plaintiff, a house painter, fell from a ladder. His employer was negligent because the ladder was inadequate for the painting job. It was held by Cox J that the plaintiff was unwise to use the ladder, but was not contributorily negligent because (at 57) he did not "go outside the bounds of [the employer's] implied direction" and - "It really comes down to this: should the plaintiff have refused to go up the ladder at all while it was in that position? Should he have demanded that a mobile scaffold or some other suitable equipment be provided? As I have said, there is no evidence that he was aware that the defendant was willing to hire scaffolding at the request of a workman, and I think it a counsel of perfection to claim in the circumstances of this case - indeed, in practically any case - that a workman is negligent because he fails to disobey his leading hand's decision. Many workmen would think that arguing with the man in charge would be a good way of getting dismissed." 87 In Commissioner for Railways v Halley (1978) 20 ALR 409 it was held that a trainee railway shunter employed by the Commissioner was not contributorily negligent although he ought to have known that what he was doing was highly dangerous. Stephen J, with whose reasons Gibbs and Aickin JJ agreed, said that the common sense of the hypothetical reasonable man could be affected by special circumstances, and considered that the fact that the plaintiff was a trainee in an unfamiliar environment expected to take on unfamiliar tasks with little in the way of advice or supervision "directly affects the conduct in caring for his own safety which is to be expected of a reasonable employee" (at 413). His Honour said that to find contributory negligence "there must be added to the dangerous nature of what the plaintiff did an ability on the part of a reasonable trainee shunter, circumstanced as was the plaintiff, to appreciate that danger" (at 413), but did not say that the addition would make out contributory negligence. Jacobs J, with whose reasons Gibbs J also agreed, did not regard that as sufficient for contributory negligence, saying at 415 - "But it needs to be stated before going further to the facts of the case that a finding that the respondent knew or ought to have known that what he was doing was highly dangerous does not necessarily establish that he was guilty of a lack of reasonable care for his own safety in the circumstances of his employment. It would also need to be established by the appellant that the respondent knew or ought to have known that what he did, even though it was highly dangerous, was not required of any part of his employment to do work which could be described as highly dangerous. If he is so required, then the obligation on the employer is to take reasonable care to ensure that the employee is aware of the dangerous nature of his work and is aware of the best way of avoiding injury to himself as a result of the dangerous nature of that work. Further, if an employee is required by the nature of his employment to expose himself to some dangers but not to others, the employee is not shown to be guilty of contributory negligence simply by exposing himself to a situation which he knew or ought to have known was dangerous, or even highly dangerous. It must also be shown that he knew or ought to have known that it was not expected of him that he would expose himself to that danger." 88 Commissioner for Railways v Halley was considered in Brown's Valve Service Pty Ltd v Cristina (1997) 1 VR 536. Hayne JA, with whom Callaway JA relevantly agreed, did not accept the submission that Jacobs J had laid down a general principle of law that it must be shown that the employee knew or ought to have known that what he was doing was not required of him in the performance of his duties, and emphasised that it depended on the circumstances. In that case the employee could have sought help rather than lift a heavy load by himself. Smith AJA's reasons included that, if the "help procedure" had not been available, it would be relevant to consider whether the employee knew or ought to have known that he was not obliged to do what he did. 89 It was not suggested that Mr Tolhurst failed appropriately to reverse the loader or otherwise take care for his safety on the particular occasion. The November 2001 incident flowed from the procedure he was expected to adopt, which he had learnt from observation in the course of his employment. He did not choose to adopt the more dangerous of available ways of taking coal from the stockpile; he had no choice. It was for Cleary to establish contributory negligence, and in my opinion the trial judge was correct in his conclusion.

(b) Endeavour's submissions 90 Endeavour relied on the evidence earlier set out in relation to Mr Tolhurst's appreciation of the danger, for the proposition that Mr Tolhurst "was injured by a risk he deliberately created". Endeavour submitted that it was erroneous as regards Endeavour to reason that Mr Tolhurst was not contributorily negligent because he had no real choice but to follow the practice endorsed by his employer. There was error, it was said, because (a) the contributory negligence was to be found in Mr Tolhurst's conduct, not that of Cleary; (b) the test for contributory negligence was objective, found in Mr Tolhurst's exposure of himself to risk which might reasonably have been foreseen and avoided and consequential suffering of loss (citing s 5R of the Civil Liability Act 2005 and Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [16] per McHugh J); and (c) in bringing in Mr Tolhurst's employment situation the trial illicitly applied a subjective test. It was said that even if that could be done as between Mr Tolhurst and Cleary, it could not apply to Endeavour's liability "otherwise is to impose some new variety of vicarious liability on Endeavour Coal". In Endeavour's submission, there was contributory negligence whereby Mr Tolhurst's damages should be reduced by 100 per cent (as permitted by s 5S of the Civil Liability Act). 91 Section 5R of the Civil Liability Act provides that the principles applicable in determining whether a person has been negligent also apply in determining contributory negligence. The standard of care is that of the hypothetical reasonable person, an objective test which at common law could be tailored to the age of a child but generally did not take account of the physical and mental deficits of the plaintiff (Joslyn v Berryman at [32]-[35] per McHugh J). But as s 5R(2) says, the standard of care is that of a reasonable person "in the position of that person", that is, a reasonable person in the plaintiff's position: Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reps 81-818 at [87]; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [14]. 92 Particular considerations arise in the case of contributory negligence by an employee, stemming from the employer's obligation in providing a safe system of work to allow for inadvertence, inattention, misjudgment and even carelessness or misconduct: McLean v Tedman; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 179 ALR 321. However, as was said in Pollard v Baulderstone Hornibrook Engineering Pty Ltd at [16] (McColl JA, with whom Mason P and Beazley JA agreed) - "The circumstances which attract particular consideration when a person is injured in an employment situation may also be relevant, however, when the question of contributory negligence arises in a non-employment context. A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. Contributory negligence focuses on the conduct of the plaintiff tested against that of a reasonable person in the plaintiff's position. The duty owed by the defendant is one of the factors that must be weighed in determining whether the plaintiff has so conducted him or herself as to fail to take reasonable care for his or her safety:" 93 In applying the objective test the circumstances in which the reasonable employee is acting include, in a case such as the present, the practices and pressures of his employment. That is so as between employee and employer, see McLean v Tedman and the other cases to which I refer above, and must be so as between employee and non-employer also. Compliance with the employer's practices is material to reasonableness of conduct, and can not be dissociated from concern for continued employment if the employee refused to do what the employer expected. Following employment practice and an employer's expectation are facts which the law could not justly put aside in assessing reasonableness of conduct, where the primary negligence is that of a non-employer in the same way as where it is that of an employer. 94 So in the body hire case of J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 the worker was injured using an unsafe method of unblocking a conveyor line, she knew it was an unsafe method and had complained of it, but Campbell JA, with whom Beazley JA and I agreed, said at [116] - "It is not as though the Worker was injured by an act of carelessness for her own safety that was incidental to the performance of her duties - she was injured through performance of her duties in the precise way in which she had been instructed to perform them. Any assessment of what reasonable care for a plaintiff's own safety requires that plaintiff to do must take into account the practical opportunities for choice that the plaintiff has concerning his or her own safety. In the present case, the only practical choice that the plaintiff had, short of resigning, was to complain to people in authority about the inadequacy of the system, and seek to have it fixed. She complained, more than once. Taking reasonable care for her own safety did not require her to take the further step of resigning when her complaints proved useless. The trial judge was right in holding that there was no contributory negligence." 95 Endeavour's submissions should not be accepted. Whether Mr Tolhurst unreasonably failed to take care for his own safety was to be determined in all the circumstances, including that he was acting (as the trial judge found) without any real freedom of choice in following the practice endorsed by Cleary as expected by it. The trial judge made a finding of fact which was open to him, and has not been shown to have been in error.

Causation of injury 96 The trial judge's findings included that in the November 2001 incident Mr Tolhurst had "sustained a range of physical injuries - the most serious of which were to the neck and chest", and that the incident "had a significant psychological effect" (at [61]). The findings can be seen more fully in the passages from his Honour's reasons (including [61]) to which I will shortly refer. The damages of $24,120 and $15,000 were different because the claim against Cleary was subject to the modified common law damages regime under the Workers Compensation Act 1987 and the claim against Endeavour was governed by the Civil Liability Act. The trial judge assessed Mr Tolhurst's injuries at 20 per cent of a most extreme case, producing these damages for non-economic loss but below the threshold for recovery of economic loss. 97 The notice of appeal contained a number of grounds as to quantum, but all turned on the challenge to the trial judge's findings upon causation of his present condition. They need not be considered separately. The substance of Mr Tolhurst's submissions was that the trial judge had misdirected himself in declining to find causation between the November 2001 incident and his condition at the time of trial. On his case, there was causation and his condition warranted assessment at a much higher percentage of a most extreme case, with consequential entitlement to recover economic loss. It was accepted that, if the complaint concerning causation of Mr Tolhurst's present condition was not upheld, the assessment of damages had been open to the trial judge. 98 It is appropriate first to outline the other events material to Mr Tolhurst's condition, of which the most important in the trial judge's view was an incident in July 2002 affecting his neck, and to refer to the trial judge's consideration of medical and other evidence going to the November 2001 incident as the cause of his condition. The trial judge's findings as to causation can then be described and his reasoning considered.

(a) The other events 99 The trial judge referred to an injury to Mr Tolhurst's lower back and subsequent development of knee pain when he fell in January 1992; he was then a butcher, and was carrying a side of beef. It is not clear whether the trial judge attributed any significance to this injury in relation to the claim in the proceedings founded essentially on injury to the chest and neck. 100 A note in the workers compensation form for this injury, under the heading "Prior Compensation Claims", read "stab in chest". We were not referred to any explanation of this in the evidence. Mr Tolhurst was then a butcher, and one may speculate that it was a mishap in using a knife. 101 A chiropractor's notes recorded that on 13 June 2000 Mr Tolhurst reported tension in his neck from driving a dump truck. The notes included a history of a shoulder injury in a motor cycle accident in 1996 and a neck injury in a motor vehicle accident. On the trial judge's interpretation of the notes, the neck was asymptomatic following the motor vehicle accident until it was aggravated from driving the dump truck. 102 The chiropractor's notes for 21 February 2001 recorded further complaints of a stiff and sore neck from driving a "980", that being the model of the front end loader in use at the time of the November 2001 incident, and the evidence included a certificate signed by Mr Tolhurst's general practitioner dated 22 February 2001 stating that he was suffering from neck pain and was unfit for work for two days. Mr Tolhurst gave evidence that he was driving a dump truck, not a 980; the trial judge thought he might have been confusing this occasion with the June 2000 neck tension. 103 The trial judge said of the events in the chiropractor's notes that "[i]t follows that the incident in November 2001 was unlikely to have been the participating cause of his neck pain" (at [35]). He said of the "stab in the chest" note that "[a]s with his neck pain this raises questions about whether the incident in November 2001 was an aggravating or precipitating cause" (at [59]). 104 In July 2002 there was an incident described by the trial judge - "37 On about 4 July 2002 the plaintiff was working for the first defendant on the Dendrobium mine site. He was driving an articulated dump truck when the truck ran into a ditch causing the plaintiff to jar his neck. His head was jerked back suddenly and then snapped forwards and back again. He attributed the injury to faulty shock absorbers which failed to cushion the driver's cabin when the truck hit the ditch. On the following day, 5 July, the plaintiff saw Dr Scruby, a partner in the practice where his normal general practitioner, Dr Yarrow, also practiced. Dr Scruby completed a Work Cover Medical Certificate in which he diagnosed neck strain and certified the plaintiff as unfit for work from 5 to 8 July. According to Dr Scruby's notes (part of Exhibit 1D20) he was the plaintiff again on 8 July 2002 in connection with his neck pain and it was on that date that Dr Scruby issued the medical certificate retrospectively. On 5 July the plaintiff also completed a Report of Injury Form (Exhibit D) for the first defendant's workers' compensation insurer, in which he reported the neck strain and identified Dr Scruby as his treating doctor." 105 The Dendrobium mine site was nothing to do with Endeavour. Mr Tolhurst's proceedings against Cleary were based only on injury in the November 2001 incident, and did not allege negligence causing injury in the July 2002 incident. 106 Mr Tolhurst continued to suffer neck pain, and over the following months saw a number of medical professionals and had some physiotherapy. He was certified unfit for work for periods of time, and in March 2003 was put on light duties driving a roller which caused less stress on his neck and back. He resumed normal duties at the end of March 2003, but in October 2003 was again certified unfit for work due to neck pain. He ceased work in May 2004, taking his annual leave and sick leave. He had not returned to work when his employment with Cleary was terminated in October 2004.

(b) Medical and other evidence 107 The trial judge's consideration was extensive. For present purposes it can be summarised - · Mr Tolhurst did not seek medical treatment immediately after the November 2001 incident, or take time off work. He gave evidence that he was under considerable financial pressure and could not afford to work reduced hours, and that the effects of his injury increased over time, but the trial judge considered that the failure to seek medical attention, at the least, was not satisfactorily explained. · The evidence of Mr Tolhurst's wife supported that in the November 2001 incident he was winded, and that as time went by there were signs of stiffness and pain in the neck with a reduction in Mr Tolhurst's physical activity and a change in his behaviour. The trial judge considered that she "sought to minimise the impact of the incident in July 2002" and played down its significance (at [55]). · The chiropractor's notes recorded complaint of pain and stiffness in the upper back and neck attributed to "Had face of coal heap fall while loading pushed machine back to ? in Sept 01". The trial judge appears to have accepted that this was the November 2001 incident, inaccurately recorded as to date. His Honour observed that there was no record of further treatment by the chiropractor until April 2004. · In the worker's compensation form following the July 2002 incident the only entry under "Other similar injuries" was of "left knee injury" suffered in 1996. · Dr Bock, who examined Mr Tolhurst on 8 November 2002, recorded the July 2002 incident and under "past history" that Mr Tolhurst had no previous neck injury but had sustained several jolting injuries while driving heavy machinery. · A rehabilitation consultant's report dated 29 November 2002 diagnosed neck injury attributed exclusively to the July 2002 incident, and recorded under Previous Workplace Injuries "N/A". · A report of Dr Benanzio, who saw Mr Tolhurst on 4 September 2002, recorded a history of progressive neck discomfort following the November 2001 incident and culminating in the July 2002 incident. · A later report of Dr Benanzio described Mr Tolhurst's incapacity for work arising out of discomfort in the neck and upper sternal region as "related to a combination of problems arising from his orthopaedic and non-orthopaedic conditions". · A report of Dr Glicksman dated 20 June 2003 recorded a history of gradual development and deterioration of Mr Tolhurst's condition over the twelve months from June 2001 to June 2002. It included reference to a traumatic event involving the collapse of a coal face while Mr Tolhurst was driving a front end loader and which he believed "may have been the original cause of his presenting problem". · A report dated 7 November 2003 of Dr Powell, to whom Mr Tolhurst had been referred in relation to injury in the July 2002 incident, recorded that although the injury was reported on 4 July 2002 "the defining incident" occurred on 6 November 2001. The November 2001 incident was described, and a history was recorded of developing increasing pain in the neck and anterior chest over the next few months although he was able to continue performing full duties. It was stated that Mr Tolhurst attributed the pain in those areas to the "initial incident" in November 2001. · A report of Dr Bodel dated 26 August 2004 recorded a history which identified the November 2001 incident as the precipitating cause of Mr Tolhurst's injuries, but with a "flare up" of symptoms in mid 2002. · A report of Dr Patrick, who examined Mr Tolhurst in January 2005, recorded a history beginning with the November 2001 incident and included the July 2002 incident; Dr Patrick attributed Mr Tolhurst's condition entirely to the earlier incident. · A report of Dr Wallace dated 1 August 2005 referred (although inaccurately) to the November 2001 incident and diagnosed injuries attributable solely to it. 108 The evidence included two psychiatric reports, one diagnosing adjustment disorder with depressed mood and the other agreeing but noting considerable improvement since Mr Tolhurst had found employment. The trial judge did not refer to the reports.

(c) The trial judge's reasons 109 After going through the medical reports the trial judge said - "48 The plaintiff seeks substantial damages for injury attributable to the incident in November 2001 which include general damages for non-economic loss as well as damages for economic loss both past and future. On the evidence outlined in the preceding paragraphs the plaintiff has failed to make such a case. I accept that an incident of the kind described by the plaintiff occurred on either 2 or 6 November 2001. I also accept that it was at the time a traumatic experience and that the plaintiff was affected both physically and psychologically. What the evidence fails to establish is that the incident was a substantial and independent cause of his long term problems, physical or psychological, the disruption of his full-time employment while he remained in the employ of the first defendant, or any long term loss of earning capacity. All of the independent evidence, as distinct from the evidence of the plaintiff himself and that of his wife, supports a conclusion that the plaintiff's present condition, which prevents him from undertaking heavy work of the kind that he formerly performed for the first defendant, is a consequence of the progressive effect of conditions of employment culminating in the incident in July 2002." 110 In the following paragraphs the trial judge referred (in my summary) to - · the pre-November 2001 neck pain, observing that Mr Tolhurst distinguished that "pain" from his November 2001 "injury"; · difficulty with the November 2001 incident having "more serious consequences than the earlier incidents" when Mr Tolhurst had continued working and had not sought medical treatment or consulted his solicitors; and · the evidence of Mr Tolhurst's wife, including the references at [55] to minimising the impact of the July 2002 incident and playing down its significance. 111 The trial judge continued - "56 The weight of evidence points to the conclusion that, with regard to the plaintiff's long term incapacity, the defining event occurred not in November 2001 but in July 2002. Such a conclusion is consistent with a finding that the incident in November 2001 did contribute to the progressive deterioration in the plaintiff's physical condition. However, it was not sufficient to interfere with his capacity to work which was only interrupted and finally curtailed by the Dendrobium mine incident about eight months later. A close analysis of the evolution of medical opinion and related treatment supports that conclusion." 112 The trial judge then said of his "analysis of the evolution of the medical reports", to an extent exposing more of their content - "57 The medical history immediately following July 2002 and for the rest of that year was almost exclusively directed at the effect of the incident on 4 July ([37] to [39]). Even in the latter part of 2003, when the history obtained by examining practitioners included the incident in November 2001, the opinions did not elevate that incident to any decisive position. Dr Benanzio, qualified by the plaintiff, diagnosed degenerative changes in the cervical spine and osteoarthritic changes in the manubrio-sternal joint attributable to the 'nature and conditions of the plaintiff's work'. Even when Dr Benanzio was directed specifically to the incident in November 2001 he described it as no more than a contributing factor to the plaintiff's disability and incapacity for work [42]. Dr Glicksman attributed the plaintiff's condition in June 2003 to a congenital disorder. Although he did not share Dr Benanzio's opinion on the underlying cause, he expressed a similar view of the progressive effect of the plaintiff's work conditions and, like Dr Benanzio, refused to accept the plaintiff's belief in the overriding significance of the incident in November 2001. The history given by the plaintiff to Dr Glicksman was more consistent with the rest of the evidence than versions given by the plaintiff to other doctors and in the witness box: 'While he believed this [November 2001] may [my emphasis] have been the original cause of his presenting problem, he did not experience symptoms in the immediate aftermath of that even[t], nor did he seek treatment … ' As late as November 2003, Dr Powell diagnosed degenerative changes to which the 'nature and conditions' of the employment were substantial contributing factors. 58 It was only in later reports such as those of Drs Bodel, Patrick and Wallace that an unquestioning acceptance of the plaintiff's assessment of the decisive role of the incident in November 2001 was found. It is not surprising that it is the reports of these doctors on which particular reliance was placed in the plaintiff's submissions. The difficulty for the plaintiff is that the opinions are only as good as the history provided by the plaintiff, which itself was a product of a progressive refinement of his own perception of the relative importance of the two incidents in November 2001 and July 2002 respectively. It was the later incident that dominated his express concerns in the latter half of 2002 and was the likely reason for the significant increase in medical treatment and in periods off work and other periods on light duties. The conclusion that the earlier incident's rise to prominence was a consequence of a process of reconstruction in the plaintiff's mind is supported by the juxtaposition of the workers' compensation claims. The later incident was the subject of a report of injury to the workers' compensation insurers one day after it occurred (Exhibit D). It was not until April 2004 that a corresponding report was completed by the plaintiff with regard to the incident which by that time had occurred almost two and a half years before (Exhibit C)." 113 Referring more particularly to complaint of injury to the chest, the trial judge said at [59] - "However, the extent of any injury in that area which could be properly associated with the incident is compromised by the absence of any later reference to an earlier chest injury recorded in the workers' compensation claim against Woolworths Ltd (Exhibit M). In that claim under the heading "Prior Compensation Claims", the plaintiff refers to "stab to chest". As with his neck pain, this raises questions about whether the incident in November 2001 was an aggravation or precipitating cause." 114 The trial judge came to his conclusions - "60 … Despite considerable uncertainty, there is sufficient evidence to establish, on the balance of probabilities, that the plaintiff has or has had problems in all of the areas referred to in the claim and that the November 2001 incident at least contributed to those problems. The more difficult and pervasive question is whether the plaintiff has proved that the overall level of injury attributable to that incident as distinct from any other, would support a claim for damages. Such damages, if any, will be limited because the evidence falls short of what is required at least with regard to some heads of damage. 61 [Referring to the percentage of a most extreme case] … In assessing the proportion appropriate in this case I accept that the plaintiff sustained a range of physical injuries in the November 2001 incident the most serious of which were to the neck and chest, and all of which were of uncertain extent and duration. I also accept that the incident had a significant psychological effect, also of uncertain extent and duration. It is more likely than not that the most serious problems both physical and psychological, in the later term, were not a product of the November 2001 incident alone but rather the result of gradual deterioration brought about over time by a series of work related incidents and work conditions before and after November 2001, culminating in July 2002. The November 2001 incident had some long term effects but their extent has not been established on the medical evidence and they were largely overtaken by the defining event in July 2002. For those reasons the damages for non-economic loss attributable to the November 2001 incident alone are assessed at 20% of a most extreme case ..." 115 The trial judge's assessment of 20 per cent of a most extreme case was applied in arriving at the damages under the Workers Compensation Act and the Civil Liability Act. The percentage fell short of the thresholds for recovery of economic loss. 116 His Honour said, however, in relation to damages under the Workers Compensation Act (at [62]) - "But had the threshold for the award of economic loss been exceeded, there is no evidence to support any loss under that head from the time of the November 2001 incident up to July 2002. During that period the plaintiff lost no work time with any proven connection to the incident and in fact undertook regular overtime. The only interruption to his work was a period of annual holidays in December and January 2002. The subsequent interference with his employment following the incident in July 2002 is attributable to that incident and not to the earlier one. The plaintiff has failed to make a causal connection between any permanent disability giving rise to future economic loss and the November 2001 incident. The only other potential head of damage available to the plaintiff would be out-of-pocket expenses, but the evidence fails to establish the necessary causal connection between any item of expense and the November 2001 incident."

(d) Consideration 117 There are difficulties with the trial judge's reasoning. 118 The events occurring prior to the November 2001 incident affecting Mr Tolhurst's neck and chest had to be considered for their contribution to his condition. Cleary and Endeavour took Mr Tolhurst as they found him, and if the November 2001 incident aggravated existing neck and chest deficits the damages compensated for the whole. But if the existing neck and chest deficits would have impaired Mr Tolhurst's functioning and brought reduction in earning capacity quite apart from the November 2001 incident, and if Cleary and Endeavour discharged an evidentiary burden of disentangling their effect from the effect of the November 2001 incident the damages would not compensate for the whole (Watts v Rake (1960) 108 CLR 158; Purkiss v Crittenden (1965) 114 CLR 764; Shorey v PT Ltd [2003] HCA 27), (2003) 197 ALR 40). 119 It is not easy to see in the evidence a case put by Cleary and Endeavour disentangling the effect of the earlier events from the effect of the November 2001 incident, but the trial judge appears to have made an allowance against Mr Tolhurst for the effect of the earlier events without even undertaking an inquiry into disentanglement. He attributed Mr Tolhurst's present condition to "the progressive effects of conditions of employment … " (at [48]), with particular reference to the pre-November 2001 neck pain. He said that the November 2001 incident "did contribute to the progressive deterioration in the plaintiff's physical condition" (at [56]; see also at [60]). He then asked whether Mr Tolhurst had proved "that the overall level of injury as distinct from any other, would support a claim for damages" (at [60]), and answered that his most serious physical and psychological problems were the result of gradual deterioration brought about over time "by a series of work related incidents and work conditions before and after November 2001" (at [61]). The progressive deterioration included the effect of the neck and chest deficits existing prior to November 2001, but questions of aggravation and disentanglement were not resolved. 120 This difficulty is marked and compounded in the case of the "stab in the chest". The trial judge said at [59] that the note of that event "raises questions about whether the incident in November 2001 was an aggravation or a precipitating cause". Even if it was an aggravation, Mr Tolhurst could be compensated. The trial judge did not answer the questions. It is not easy to see why the brief entry should have been thought to raise contribution to pain in the sternal area ten years or so later on, after the November 2001 incident, and no medical evidence supported a connection. 121 The trial judge saw particular significance in the July 2002 incident. It could have been that by July 2002 Mr Tolhurst had recovered entirely from the effects of the November 2001 incident, the July 2002 incident being the sole explanation for his present condition. Or it could have been that Mr Tolhurt continued to suffer from the effects of the November 2001 incident, in which case it was necessary to decide whether or not the July 2002 incident aggravated the injuries suffered in the November 2001 incident. The principles were stated in State Government Insurance Commission v Oakley (1990) Aust Torts Reps 81-003 at 67,577, relevantly - "2. where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and 3. where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first." 122 The principles have been accepted in this Court in cases such as Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999] NSWCA 115 and Government Insurance Office of New South Wales v Aboushabi [1999] NSWCA 396; (1999) Aust Torts Reps 81-531. 123 The trial judge did not find that Mr Tolhurst had recovered entirely from the effects of the November 2001 incident. He described the physical and psychological effects as of uncertain extent and duration. He said that Mr Tolhurst's condition was not a product of the November 2001 incident "alone" (at [61]), suggesting that the November 2001 incident contributed to it. The November 2001 incident was part of the series of work related incidents and work conditions bringing gradual deterioration, and had "some long term effects but their extent has not been established on the medical evidence" (at [61]). 124 A decision concerning aggravation was not then clearly addressed. The trial judge asked himself a different question. He asked whether the November 2001 incident was "a substantial and independent cause of [Mr Tolhurst's] long term problems, physical or psychological" and of any long-term loss of earning capacity (at [48]), and (with respect, somewhat obscurely) whether "the overall level of injury attributable to that incident as distinct from any other, would support a claim for damages" (at [60]). He found that "the defining event" was not the November 2001 incident but the July 2002 incident (at [56], [61]). 125 This was not the correct inquiry. Mr Tolhurst did not have to prove that the November 2001 incident was an independent cause of his present condition; it could be a cause by aggravation of a pre-existing condition or together with aggravation by a subsequent event. Speaking of a defining event - which was in any event described at [61] as an event which "largely" overtook the effects of the November 2001 incident, leaving those effects operating to some extent - was not particularly clear, but if it was meant that the November 2001 incident was not an independent cause of Mr Tolhurst's condition it did not properly resolve causation in the proceedings. 126 A plaintiff's injuries may not affect earning capacity, or the effect on earning capacity may not produce economic loss. The trial judge had that in mind at [62], and there found that the effect on earning capacity was "attributable to" the July 2002 incident and not the November 2001 incident. But at that point also his Honour does not appear to have considered whether there was a causal connection through aggravation in July 2002 of injury suffered in November 2001. 127 Mr Tolhurst submitted that in a number of respects the evidence did not warrant giving the July 2002 incident the factual significance over the November 2001 incident given to it by the trial judge. I do not think it necessary to go further into the evidence, and since (as will appear) there is to be a new trial it is better that I do not. In my opinion, the trial judge fell into error when he declined to find causation between the November 2001 incident and Mr Tolhurst's condition at the time of trial. I do not mean that the trial judge should have found causation, but his reasoning was astray and his conclusion can not stand; see later in these reasons as to a new trial. 128 Cleary acknowledged that the trial judge could have expressed himself better, but submitted that his Honour should be understood to have found "that the nature and conditions of the plaintiff's employment, in conjunction with an event in July 2002, constituted a 'novus actus'", being what the trial judge referred to as the defining event. The submission might impermissibly roll together nature and conditions of employment and the July 2002 incident, and leaves the November 2001 incident as a contributor to Mr Tolhurst's condition. In oral submissions Cleary said that the trial judge should be understood to have regarded "these subsequent matters, including the nature and conditions of his work as further injuries, not as aggravations". The nature and conditions were not only subsequent to the November 2001 incident. The submissions do not meet the difficulties with the trial judge's reasons. 129 Endeavour's submissions were also generally supported by Cleary. It submitted in relation to the principles set out above from State Government Insurance Commission v Oakley that "there is some doubt about the extent of the application of these common law rules under s 5D of the Civil Liability Act 2002". It did not develop the submission, and in the absence of explanation I do not think it is for the Court to explore the matter. Its primary submission was that Mr Tolhurst had not put his case at trial as one "with the benefit of any rule which might allow consideration of events occurring after November 2001", that he had not made out a case allowing such consideration, and that he should not be allowed to put such a case on appeal. 130 The elaboration of the submission was to the following effect. Mr Tolhurst claimed against Cleary and Endeavour on the basis of the November 2001 incident. He did not claim on "an extended basis", by which I understand Endeavour to have meant that his present condition was the result of the November 2001 incident plus subsequent aggravation by the July 2002 incident. On the contrary, in his evidence he sought to "downplay" the seriousness of any injury in July 2002, and his medical evidence "did not go far enough" in establishing aggravation. It would be unjust if an extended basis could now be maintained, because a claim in part on the basis of the July 2002 incident would have caused Endeavour (which had nothing to do with the Dendrobium mine) to conduct the proceedings differently. 131 I do not accept that Mr Tolhurst's claim was limited so as to exclude reliance on the July 2002 incident. We were referred without objection to particulars provided before the trial which explicitly stated that Mr Tolhurst claimed that his November 2001 injuries were aggravated by his work thereafter driving trucks and heavy machinery. His evidence did not highlight the July 2002 incident, but Cleary and Endeavour raised it to prominence and relied on it. They made a point of its contribution to Mr Tolhurst's condition, necessarily including the possibility of aggravation of the effects of the November 2001 incident, although they sought to attribute his condition entirely or substantially to the July 2002 incident. There was much medical evidence going to relative contributions, and the reports of Drs Powell, Bodel, Patrick and Wallace considered that matter in generally attributing Mr Tolhurst's condition to the November 2001 incident. The trial judge had to decide the proceedings as the evidence had developed, including deciding whether the July 2002 incident aggravated the effects of the November 2001 incident. 132 In its written submissions, Endeavour said that a claim on an extended basis would have provoked it "to characterise the subsequent conduct of Cleary Bros as a supervening cause, severing any causal connection with the November 2001 incident". I do not accept that there is a material change on appeal. Severance of any causal connection with the November 2001 incident was in substance what Cleary and Endeavour were about at the trial, and there is no injustice in determining that the trial judge erred in the manner in which he found that Mr Tolhurst had not proved that the November 2001 incident was the substantial and independent cause of his condition. 133 Cleary had pleaded as a defence that it had made workers compensation payments to Mr Tolhurst. It said that "subsequently to judgment we did in fact withdraw our workers comp defence because the way in which it was run at trial by us was that it was a single incident operation. That's the way we saw his Honour's judgment falling out". We were told that significant workers compensation payments were made in relation to the July 2002 incident. It was not clear whether Cleary's submission was in opposition to Mr Tolhurst's appeal as well as a foreshadowing of reinstatement of the defence in a new trial. However, Cleary's conduct after the trial judge had declined to find relevant causation does not inhibit Mr Tolhurst in challenging that finding.

A further ground of appeal 134 A separate ground of appeal was that the trial judge - " …erred by not allowing the parties to speak to their written submissions given the delay between the close of the hearing and the final submissions and the further delay until judgment." 135 Since this asserted a denial of procedural fairness by the trial judge, it should be specifically dealt with. 136 At the conclusion of the evidence the trial judge and counsel worked out a timetable for written submissions. Counsel for Mr Tolhurst enquired about speaking to the submissions, suggesting liberty to apply, and the trial judge said - "I don't know that we have to try and set a date for that if either counsel wish, or I discover having read them submissions, I need some further assistance then I think we negotiate a time for that to be attended to, which will obviously be some time later in September … The matter is stood over then subject to that timetable and subject to the possible need of calling on counsel to speak to those submissions at some later date." 137 The written submissions were delivered. We were told from the Bar table that junior counsel for Mr Tolhurst telephoned the trial judge's chambers "to say did his Honour wish to hear orally from them and the answer was no". 138 The parties did not ask for the opportunity to speak to the written submissions. There is nothing in this ground, which should not have been included in the notice of appeal.

What to do? 139 Mr Tolhurst accepted that this Court could not make the necessary findings on quantum, including as to causation, and neither Cleary nor Endeavour submitted to the contrary. Mr Tolhurst submitted that a new trial should not be on liability but only "from causation onward". Cleary and Tolhurst submitted that it should be a new trial generally. 140 There is power to order a new trial on any question without interfering with the decision on any other question: UCPR r 51.53(2). While the starting-point is a new trial on all issues (Pateman v Higgins (1957) 97 CLR 521 at 527 per Kitto J; Quinn v Rocla Pipes Pty Ltd (1986) 6 NSWLR 586 at 682 per McHugh J, Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1516]; Amalgamated Television Services Pty Ltd v Marsden (No 2) [2003] NSWCA 186; (2003) NSWLR 338 at [31]), a new trial is commonly limited to the assessment of damages. The principle to be applied is whether the Court "would do more injustice by setting the matter at large again" (Pateman v Higgins at 527-9; Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan [2001] NSWCA 381; (2001) 53 NSWLR 343 at [45]-[48]). 141 The trial judge accepted that the November 2001 incident occurred in the circumstances and manner as described by Mr Tolhurst, despite challenges to his credit extending to when and how it occurred. The credit challenges were more successful when the trial judge came to damages, and it was common ground that Mr Tolhurst's credit would be involved in the assessment of damages. 142 In my opinion there would be an unacceptable risk, if the new trial were confined to the assessment of damages, that the judge conducting the new trial would be constrained in fact-finding unless able to consider Mr Tolhurst's credit as a whole. The significance of the injuries suffered by Mr Tolhurst can not in my view be quarantined from how and in what circumstances they came about. Once that point has been reached, I do not think that there can be exclusion from the new trial of Cleary's and Endeavour's negligence and Mr Tolhurst's contributory negligence, since those matters must depend on how and in what circumstances the November 2001 incident occurred; although it may be that, in the light of these reasons any contest will be confined. Thus I conclude that in justice between the parties there should be a new trial generally, and it must extend also to the contribution between Cleary and Endeavour.

Costs 143 Although there will be a new trial in which the liability of Endeavour and Mr Tolhurst's contributory negligence are reconsidered, Cleary and Endeavour were unsuccessful in their cross-appeals against Mr Tolhurst. They abandoned their cross appeals on contribution as between each other. Mr Tolhurst was largely successful in his appeal. In my opinion, Cleary and Endeavour should pay Mr Tolhurst's costs of the appeal and his costs of their respective cross-appeals. The costs of the cross-appeals as between Cleary and Endeavour should lie where they fall.

Orders 144 I propose the orders - 1. Appeal allowed and cross-appeals dismissed.

2. Set aside the orders made by Phegan DCJ on 27 March 2007.

3. Remit the proceedings to the District Court for a new trial.

4. Costs of the proceedings thus far in the District Court to be in the disposition of the judge conducting the new trial.

5. Cleary and Endeavour to pay Mr Tolhurst's costs of the appeal and his costs of their respective cross-appeals. 145 TOBIAS JA: I agree with Beazley JA.

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