Citation : ROSS -v- PROFILE PACKAGING PTY LIMITED & ANOR [2008] WADC 8

Tort - Defective machinery - Duty of care - Principles of Windeyer J in Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 - Evidentiary burden - Rule in Browne v Dunn (1893) 6 R 67 - Use of Australian Standard AS 1219-1994 - Causation - Difficulty faced by a ground which challenges apportionment of liability

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1

AV Jennings Constructions Pty Ltd v Maumill (1956) 30 ALJR 100

Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580

British Fame (Owners) v MacGregor (Owners) [1943] AC 197

Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232

Fitzpatrick v Job t/as Jobs Engineering [2007] WASCA 63

Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336

Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529

Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Seymour v ABC (1977) 19 NSWLR 219

Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24

Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449

Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422

Wall v Cooper [2008] WASCA 53

1 In these proceedings, Mr Michael Robert Ross (the first respondent) claimed damages as a result of a severe injury to his right hand which he suffered while employed by Profile Packaging Pty Ltd (the second respondent) (the employer). Mr Ross claimed damages from each of the employer and Scope Machinery Pty Ltd (the appellant) (the manufacturer), the manufacturer of the machine upon which Mr Ross was working at the time of his injury. The trial judge concluded that Mr Ross had established the liability of each of the employer and the manufacturer, and entered judgment in terms that the employer and manufacturer pay the plaintiff $695,373. As between the employer and the manufacturer, she ordered that the manufacturer contribute 60% towards the damages awarded to Mr Ross, and the employer 40%.

2 The manufacturer appeals from the decision of the trial judge. The employer cross-appeals, but conditional upon, and only to the extent of the success of some of the grounds advanced by the manufacturer. The manufacturer's grounds of appeal are almost entirely directed at challenging findings of fact made by the trial judge. For reasons which I will give, in my opinion, all grounds of appeal should be rejected, and the appeal and cross-appeal dismissed.

3 It will be necessary to consider in some detail the findings made by the trial judge that are relevant to each of the 10 grounds of appeal. It will be more convenient to do so at the time each ground is considered. Accordingly, at this point it is only necessary to provide an overview of the decision of the trial judge, identifying her principal findings. The following paragraphs are taken from the reasons for decision of the trial judge.

4 Mr Ross suffered the injury the subject of these proceedings on 12 June 2003 when he was 23 years of age. He was employed as a machine operator and setter. His hand was severely injured when it was caught between two moving platens of a thermo forming machine which had been produced by the manufacturer.

5 The machine was designed and used to produce various shapes of plastic products such as containers, lids and biscuit trays. The machine would produce these products by applying heat to a section of plastic film taken from a roll at one end of the machine by way of a hot plate (the lower platen). The heated plastic would then be pushed by means of air pressure into a die (or mould) attached to the upper platen where the plastic would cool and then be cut into shape by knives surrounding the die. During the process, the lower and upper platens close upon each other repeatedly and rapidly in order to push the heated plastic into the die and cut it.

6 The operative part of the machine was surrounded by Perspex windows. In the event of a jam in the machine, it was necessary for the operator to open the Perspex windows to access the moving parts of the machine. The machine had a safety mechanism such that the machine was immediately stopped as soon as one of the Perspex windows was opened.

7 Mr Ross had been trained to work on machines of this kind over a number of years. By the time of the accident, he had graduated to a more supervisory role, although from time to time he was required to relieve other operators while they were at morning tea or on a lunch break.

8 On the day of the accident, Mr Ross had just commenced relieving the usual operator of the machine, who was taking morning tea. The machine jammed. Mr Ross opened one of the Perspex windows just as the lower platen was about to reach its lowest position. This immediately stopped the operation of the machine. He stretched forward so as to place his right arm between the platens in order to prise loose the plastic which had jammed in the die on the upper platen. The lower platen then moved up, catching his hand between the two platens. His hand was burnt and all four fingers other than the thumb were cut severely by the knife surrounding the die.

9 The machine was equipped with a manual override switch which was situated on the console on the outside of the machine below the Perspex window which Mr Ross had opened in order to reach inside the machine. The override switch was a spring-loaded twist switch consisting of a round knob. If the knob was turned clockwise, the lower platen moved up. If the knob was turned anti-clockwise, the lower platen moved down. When activated by the manual override switch, the lower platen moved much slower than during its normal cycle.

10 Mr Ross had been told by his employer that once the Perspex windows had been opened, it was safe to put his hands into the gap between the platens because the machine had stopped operating. He had not been instructed by his employer to place any kind of protection between the platens to prevent them closing while his hand was between them. In particular, he had not been instructed to use a block of wood for that purpose.

11 Mr Ross advanced his claim on the basis that one of two alternatives had caused the platens to close while his hand was between them. The first was an electrical fault in the machine, which had meant that the switch which ceased the operation of the machine while the Perspex windows were open had failed. The second was that, when reaching into the operative part of the machine, part of his body had inadvertently made contact, and engaged, the manual override switch, causing the lower platen to rise and catch his hand.

12 The trial judge rejected the proposition that an electrical fault had caused the automatic switch associated with the Perspex windows to fail. However, she accepted that the reason the lower platen had risen, and caught Mr Ross' hand, was because some part of his body had inadvertently engaged the manual override switch at the time he was leaning forward to attempt to unjam the machine.

13 The trial judge found the manufacturer in breach of its duty to Mr Ross for a number of reasons. She found that the inadvertent operation of the manual override switch was foreseeable, and that such operation created a serious risk to operators of the machine. She further found that the risk of such inadvertent operation could be significantly reduced by the application of a simple metal guard surrounding the switch, at an insignificant cost. She also found that proper interlocking metal guards should have been designed into and applied to the machine to prevent the platens moving together while a safety block was in place. In the alternative, she found that the manufacturer breached its duty of care by not providing a wooden block, to be used to keep the platens apart while operators were clearing jams in the machine. She found on the evidence that the manufacturer did not supply such a block at the time of delivery of the machine.

14 The trial judge also found that the manufacturer breached its duty by failing to provide adequate instructions with respect to the safe operation of the machine which it had produced. In particular, although the operating manual stated that an operator should not allow any part of the body to enter between the faces of the press without placing a wooden safety block between the press faces, it did not state what type of wood the block should be, or its dimensions. She also found that, to the extent that the manual suggested that the main electrical supply should be disconnected to the machine before any body part was placed between the platens, this was impractical, given the frequency with which jams had to be cleared. Nor did the manual contain any step by step procedure for the clearing of a jam, or directions relating to the use of the manual override switch. In all these respects, the trial judge found the manufacturer to be in breach of a duty of care.

15 Further, the trial judge found that the manufacturer should have affixed a warning sign in a prominent position on the machine, which would have warned any operator of the crushing hazard and instructed him or her to use a wooden safety block. She concluded that the manufacturer's failure to affix such a sign was another breach of the duty which it owed to Mr Ross.

16 The trial judge also found that the employer breached the duty which it owed to Mr Ross in a number of respects. First, it breached its duty by failing to provide a wooden block to be inserted between the platens when an operator's hand was between them. Second, the trial judge held that the employer had breached its duty to ensure that Mr Ross had received adequate instruction and training on how to safely operate the machine, and in particular, found that he had been expressly instructed that it was safe to put his hands between the platens as long as the Perspex windows were open, when in fact that was not the case. Third, the trial judge further held that the employer was also under a duty to affix an appropriate warning sign to the machine, given the manufacturer's failure to do so.

17 On the subject of causation, the trial judge noted that neither defendant submitted that any of the potential breaches of their duty of care that might be found by the court, did not causally contribute to the injury suffered by Mr Ross. Accordingly, and having regard to the findings of fact she had made and to which I have referred, the trial judge concluded that each of the breaches of duty she had found was a cause of the injury suffered by Mr Ross.

18 The trial judge rejected the contention of each of the manufacturer and the employer to the effect that the damages to be awarded to Mr Ross should be reduced by reason of his contributory negligence. She did so in the light of the findings she had made with respect to the failure of the manufacturer to provide a wooden block or other safe system, to adequately guard the manual override switch and affix an appropriate warning, and the failure of the employer to adequately train Mr Ross, and its failure to supply a blocking mechanism or appropriate warning. In that context, the trial judge relied upon the observation of Windeyer J in Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24, to the effect that she was required to consider whether:

...inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions ... caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man. (37)

19 She concluded that to the extent that Mr Ross was inattentive, in the circumstances that inattention did not constitute a failure to take reasonable care for his own safety.

20 On the subject of apportionment, the trial judge concluded that the deviation by the manufacturer from the standard of reasonable care was greater than that of the employer. The manufacturer could be taken to have expertise in relation to the safe operation of the machine, and the various risks associated with its operation. She found that the manufacturer was aware that operators of the machines tended to bump into switches on the console, and even to dislodge them. She further found that the author of the operating manual provided by the manufacturer lacked any appropriate qualification to provide such an important document. The trial judge also considered that the breaches of duty by the manufacturer made a greater causal contribution to the injury suffered by Mr Ross than the breaches by the employer. She concluded that if the manual override switch had been guarded, the accident would not have occurred.

21 For these reasons, she apportioned liability as between the manufacturer and the employer 60:40 respectively.

22 As developed in the written and oral submissions, this ground has essentially two components. The first is an assertion that the trial judge erred in law by reversing the onus of proof, and imposing upon the manufacturer the burden of proving other possible causes of the accident. The second component of this ground is a challenge to the finding of the trial judge to the effect that the cause of the accident was the inadvertent engagement of the manual override switch, when it is suggested that it should have been found that the manual override switch was deliberately operated by Mr Ross with his left hand, at the time his right hand was between the platens.

23 Dealing firstly with the contentions advanced in relation to the burden of proof, there are points in the reasons of the trial judge in which the trial judge refers to the defendants bearing an evidentiary burden (for example at [114] and [159]). However, when those references are placed in their context, it is clear that the trial judge has not reversed the burden of proof.

24 At [114] the reference to the defendants bearing an evidentiary burden appears in a context in which the trial judge has previously referred to the range of evidence, which she accepted, to the effect that it was more likely than not that the movement of the lower platen had been occasioned by the inadvertent engagement of the manual override switch. In that context, she observed that it was not put to Mr Ross that he had deliberately engaged the manual override switch with his left hand while clearing the jam with his right hand. Although the reasons might have been more felicitously expressed, when read in their context it is clear that the trial judge is enunciating a process of reasoning in which the failure of the defendants to advance any alternative cause for the movement of the lower platen reinforced the conclusion sustained by the evidence to which she had already referred, to the effect that its movement was most likely occasioned by the inadvertent engagement of the manual override switch. Such a process of reasoning is entirely conventional, and does not involve any reversal of onus.

25 Where the trial judge refers at [159] of her reasons to the defendants bearing an evidentiary onus, she does so explicitly in the sense enunciated by McHugh J in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at [34] and by Buss JA in Fitzpatrick v Job t/as Jobs Engineering [2007] WASCA 63 at [227], in the context of the issue of causation. Reference to a defendant bearing an evidentiary burden in a circumstance in which it has been established that the defendant's breach of duty has created or increased the risk of an event which may result in the plaintiff suffering reasonably foreseeable loss or damage, and the event occurs, is entirely consistent with those authorities (and others).

26 Turning then to the component of this ground which asserts that the trial judge should have found that Mr Ross deliberately operated the manual override switch with his left hand while attempting to clear the jam with his right, the first obstacle which this argument confronts is that this proposition was never put to Mr Ross in cross-examination. During cross-examination by counsel for the employer, Mr Ross stated that he never used the manual override switch when clearing jams in the machine (ts 43). He also stated (twice) that he had no need to use the manual override switch to alter the position of the platen on the day of his accident, because there was enough room for him to insert his right hand (ts 44 and 48). Counsel for the manufacturer asked Mr Ross whether he had ever used the manual override switch on the machine in question. Mr Ross denied that he had ever used it (ts 69).

27 At no point in the cross-examination of Mr Ross was it put to him that on the day of the accident he had deliberately engaged the manual override switch with his left hand, while reaching between the platens with his right hand. During argument on the appeal, counsel for the manufacturer conceded that this scenario was never put to Mr Ross (appeal ts 67). However, in the closing submissions at trial, this hypothesis was suggested to the trial judge.

28 In those circumstances, it was not open to the trial judge to accept a proposition of fact that had not been put to Mr Ross (see Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449 [36]; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1, 26; Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580, per Kirby P at 590; Fitzpatrick v Job (above) per Buss JA at [241]; and Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362, 370 - 371).

29 This rule, sometimes described by reference to its historical origins in the decision in Browne v Dunn (1893) 6 R 67, is now recognised as a component of the basic obligations of procedural fairness which underpin all court proceedings (see Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336, 345; Wall v Cooper [2008] WASCA 53 at [5]). While the rule in Browne v Dunn has occasionally given rise to arguments of a technical character, in a case such as this, where a party wishes to contend that the injury was caused by reason of the conduct of the injured party, fundamental principles of procedural fairness required that proposition to be put squarely and explicitly to the injured party in cross-examination.

30 As it was not open to the trial judge to accept the proposition that Mr Ross deliberately engaged the manual override switch with his left hand, it is obviously not open for the manufacturer to put that proposition on appeal (see Seymour v ABC (1977) 19 NSWLR 219, 225 and 237).

31 In any event, there was ample evidence to support the finding made by the trial judge. The trial judge accepted the entirety of the evidence of Dr Chew. Dr Chew was an expert witness called on behalf of the employer. There is no reason why it was not open to her to do so (see ground 3 below). In his written report (exhibit 35) and his oral evidence (at ts 226, 235, 250, 258 and 259) he expressed the view that it was more likely than not that the lower platen was caused to move by the inadvertent engagement of the manual override switch by Mr Ross when he was leaning over the machine. It has not been suggested that Dr Chew was not qualified to express that opinion.

32 Mr Apgar, a civil engineer/scientist, gave expert evidence on behalf of the plaintiff. The trial judge generally accepted the evidence of Mr Apgar (although not in its entirety). She expressly accepted his evidence (exhibits 6 and 8, ts 108) that it was possible that the lower platen may have moved because of the inadvertent engagement of the manual override switch by Mr Ross' body.

33 Evidence was given by Mr Hawkes (for the employer) and Mr Papamarkos (for the manufacturer) of an attempt to recreate a circumstance in which the manual override switch was inadvertently engaged by the application of a part of the body of a person reaching into the operative part of the machine. Each gave evidence to the effect that the recreation did show that engagement of the switch was possible, although not for the period of time which, on the evidence of Dr Chew, the switch would have had to have been engaged if the evidence of Mr Ross as to the distance between the two platens at the time he inserted his hand was correct.

34 The manufacturer placed great reliance on this evidence, and the failure of the reconstruction to inadvertently engage the switch for a protracted period, in support of its argument. However, in her reasons, the trial judge has referred to, and appropriately weighed that evidence, in the context of her evaluation of the expert evidence to which I have referred. It was open to her to accept that expert evidence and to conclude that the cause of the accident was the inadvertent engagement of the manual override switch. The evidence of the limited reconstruction of the accident was far from conclusive of this issue. No basis for appellate intervention with that finding has been made out.

36 Ground 2 presupposes, and is dependent upon the success of ground 1. Therefore it must also be dismissed.

37 Ground 3 asserts that the trial judge erred by accepting the evidence of Dr Chew.

38 Three specific reasons are advanced for the proposition that the trial judge should have rejected the evidence of Dr Chew. The first is that he did not conduct any test to ascertain whether sustained inadvertent activation of the switch was possible, the second is that there was no evidence of previous inadvertent activation, and the third was the evidence of the unsuccessful attempt to recreate sustained activation of the switch.

39 The reasons given in evidence by Dr Chew for the formation of his opinion are cogent and plausible. They include the fact that very little force was required to activate the switch. It was not necessary for him to replicate the circumstances of the accident in order to express an opinion which the trial judge was able to accept, especially given that it was supported also by Mr Apgar.

40 The proposition that there was no evidence that the manual override switch had been previously activated inadvertently is correct but needs to be qualified. Mr Mebberson gave evidence that the manufacturer experienced a problem with push button switches fixed onto the console to the left of the manual override switch being dislodged by factory workers bumping into them. The trial judge found that the manufacturer was aware that operators of the type of machine involved in this case, tended to bump into switches on the console and even dislodge them. And as I have observed, the failure of the reconstruction attempt to demonstrate sustained inadvertent activation of the switch does not preclude the finding that this was the cause of the accident, when put into the mix with all the other evidence evaluated and balanced by the trial judge.

42 Ground 4 asserts that the trial judge placed undue reliance upon the terms of Australian Standard AS 1219-1994, and incorrectly concluded that the Australian Standard was applicable to the circumstances of the case. It shold be noted that although the trial judge makes reference to AS 1219-1999, Mr Apgar's report stipulates that it is AS 1219-1994. AS 1219-1994 is entitled 'Power Presses - Safety Requirements'. Section 2.2 of AS 1219-1994 states that the safety features to provide protection against risks to health and safety should include at least the use of interlocked safety blocks. In particular, s 2.12.3 deals with hazardous areas (where a part of a person's body has to be frequently introduced into that area of the press where injury might result if a machine function should start) and states that devices such as high integrity interlocking guards, two handed controls or presence sensing systems should be used.

43 The trial judge expressly acknowledged that Australian Standards are only a guide to, and cannot dictate, the standard of reasonable care required in the circumstances of an individual case [127]. Accordingly, there is nothing in the suggestion that the trial judge made inappropriate use of the Australian Standard. The trial judge found that the Australian Standard supported the evidence given by Dr Chew and Mr Apgar, which she accepted, to the effect that appropriate standards of design required the installation of a metal interlocking safety block. It was entirely open to her to use the relevant Australian Standard for that purpose.

44 The manufacturer also submits that the trial judge wrongly concluded that 2.12.3 of AS 1219-1994 was applicable to the circumstances of this case, because it only applied in circumstances in which part of the operator's body is inserted into the machine frequently. The manufacturer submits that the trial judge should have found that the clearing of blockages was infrequent, with the result that s 12.2.3 did not apply. However, the evidence of Mr Mebberson, who is the managing director of the manufacturer, was to the effect that operators would be clearing blockages a number of times an hour (ts 413). In the light of that evidence, it was open to the trial judge to conclude that s 12.2.3 was applicable.

46 Further and in any event, the furthest this ground would take the manufacturer in its challenge to the decision of the trial judge would be to set aside her conclusion that the manufacturer was negligent in failing to provide an interlocking metal safety block. Unless the findings of the trial judge with respect to the other breaches of duty by the manufacturer were also set aside, including the breach relating to failure to supply a wooden block, the verdict in favour of Mr Ross would stand.

47 Grounds 5 and 6 both depend upon the proposition that the trial judge was wrong to find that there was no wooden safety block of adequate dimensions available to Mr Ross for his use at the time of his accident.

48 In evaluating the evidence on this topic, it is important to note that evidence was given of two different types of wooden block. Both are depicted in the photograph numbered 7 produced during the hearing of argument on the appeal. One is a longer, thinner and flatter piece of wood, which was used for scraping plastic from the platen in the course of clearing a jam, and which would have been of no assistance in preventing the platens closing on an operator's hand. The other was a shorter, thicker block which may have been adequate to prevent the platens closing on an operator's hand, if inserted between them. The evidence of Mr Ross was that the only piece of wood available to him prior to the accident was the thin piece of wood suitable for use in scraping plastic from the jam (ts 51 and 61). The evidence of Mr Siriwoot (who was the operator Mr Ross was relieving at the time of his accident) was to the same effect (ts 333, 343). Mr Kelly, who was the managing director of the employer, did not contradict that evidence (ts 312).

49 The argument advanced in support of these grounds essentially comes down to reliance upon a photograph taken by Mr Papamarkos at some time after Mr Ross had suffered his injury. The evidence does not establish precisely how long after Mr Ross suffered his injury the relevant photograph was taken [63]. The evidence of Mr Papamarkos was to the effect that he took photographs on two separate occasions, and he could not now say which photographs were taken when (ts 447).

50 The earliest point in time at which the relevant photograph could have been taken was some time later on the day on which Mr Ross suffered his accident. However, even if it were established that the relevant photograph was taken then (depicting a thick block of wood at the foot of the relevant machine), that photograph would not establish that the block of wood was there at the time Mr Ross suffered his accident. The photograph would not, of itself, exclude the distinct possibility that after Mr Ross suffered his accident, attention was given to ways in which the risk to operators of the machine could be reduced, and a block of wood provided before the photograph was taken.

52 Ground 7 asserts that the trial judge erred by concluding that the manufacturer's failure to affix an appropriate warning sign to the machine caused the injury suffered by Mr Ross, because there was no evidence to the effect that he would have acted upon such a sign.

53 The first difficulty which this ground faces is the observation of the trial judge that the defendants 'did not submit that any of the potential breaches of their duty of care that the court might find did not causally contribute to the plaintiff's injury' [161]. The significance of that obstacle is, however, somewhat diminished by the observation that breach of duty by failure to affix an appropriate warning sign was not part of the case pleaded against the manufacturer. On the other hand, the manufacturer does not, in the appeal, take the point that the finding of breach of duty was beyond the case which it had to meet.

54 But in any event, the approach taken by the trial judge to the topic of causation was entirely conventional. As I have noted, the trial judge expressly referred to the principles enunciated in Chappel v Hart and the evidentiary onus which can arise in some circumstances. Further, in the case of the causal consequences of a failure to warn, there is authority for the proposition that direct evidence from the person claiming the entitlement to the warning, as to what they would have done if warned, is unlikely to be helpful (see Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [226]; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [221]).

56 This ground challenges the finding of the trial judge to the effect that the manufacturer breached its duty by failing to provide adequate instructions in the operator's manual supplied with the machine. In particular, the ground asserts error in the finding that there had been a breach of duty with respect to the lack of provision of instruction in relation to the procedure to be followed when clearing a jam. It is contended that the variety of circumstances in which material could become jammed are such that particular instruction with respect to the unblocking of jams would have been inappropriate.

57 The first problem with this submission is that there was no evidence to sustain the proposition that there is a wide variety of circumstances in which the material could become jammed, such that instruction as to the procedure to be adopted is inappropriate. The second difficulty faced by the submission is that, plainly enough, the deficiency identified by the trial judge in the operating manual related to the appropriate manner of dealing with the precise risk which had eventuated in this case, namely, the risk which arose when an operator inserted part of his or her body between the platens in order to clear a jam. She found that it was impracticable to instruct operators to isolate the power supply every time that occurred, and no challenge is made to that finding [137]. She also found that greater direction should have been given as to the manner in which the safety block was to be engaged when clearing a jam [136]. Those findings were amply sustained by the evidence.

58 Further and in any event, this ground challenges only one of the three aspects in which the trial judge found that the operating manual was deficient, and therefore breached the duty of care owed to Mr Ross. Success on this limited ground would not result in any disturbance to the finding of breach.

59 This ground challenges the trial judge's rejection of the contention that the damages awarded to Mr Ross should be reduced by reason of his contributory negligence. The only substantial contention advanced in support of the ground is reference to the period of time (about 14 seconds or so) over which the lower platen would have had to move before catching Mr Ross' hand. It is said that Mr Ross should have detected the lower platen moving over that period, and removed his hand.

60 This submission fails to take proper account of the significance of factors such as the repetitive nature of the task undertaken, preoccupation with another matter (in this case clearing the plastic from the upper platen) and the inherent likelihood of temporary inadvertence and lapse of attention to which Windeyer J referred in the passage from Sungravure relied on by the trial judge and which I have set out above. Further, the oft cited decision in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529, 531 establishes that in the case of an employee 'mere inadvertence, inattention or misjudgment' will not constitute contributory negligence. If and to the extent that Mr Ross failed to notice the relatively slow movement of the lower platen towards his hand, that omission could not be characterised as anything more than mere inadvertence or inattention - especially viewed in the context of the

relatively menial and repetitive task in which he was engaged, and the focus of his attention upon the upper platen.

62 This ground challenges the trial judge's apportionment of liability as between the manufacturer and the employer. The argument advanced in support of the ground was economic almost to the point of non-existence. Perhaps that reflected an accurate assessment of the difficulty faced by a ground which challenges apportionment, given the latitude necessarily given to a trial judge in this area (see British Fame (Owners) v MacGregor (Owners) [1943] AC 197, 198 - 199; followed in AV Jennings Constructions Pty Ltd v Maumill (1956) 30 ALJR 100, 101).

63 No error of fact or principle has been established in support of this ground. The apportionment of liability made by the trial judge was plainly open to her, and amply justified by the reasons which she gave, and to which I have referred.

64 The employer's cross-appeal simply adopted by reference the grounds and submissions advanced by the manufacturer in support of grounds 1 and 9. No additional argument was advanced in support of either ground. The cross-appeal must therefore be dismissed for the same reasons as the appeal.

65 For these reasons, the appeal and the cross-appeal should be dismissed.