Victorian WorkCover Authority v Carrier Air Conditioning Pty Ltd [2006] VSCA 63

Statement of the case

2 In October 1999 Gary Simmons ("the worker") was employed by Workforce on Tap ("Workforce"), a labour hire company. On 8 October he was hired out to Carrier Air Conditioning Pty Ltd ("Carrier") as a forklift driver/labourer. That day, at Carrier's Bayswater premises, he fell whilst descending from a makeshift platform on which he had been standing, and suffered injuries. He claimed accident compensation from Workforce. His claim was accepted and he was paid, in all, $47,185.20.

3 Then Victorian WorkCover Authority ("VWA"), the ultimate source of the accident compensation payments, brought an action against Carrier under s.138 of the Accident Compensation Act 1985 ("the Act") in respect of the payments which it had made. VWA's entitlement to an indemnity depended upon it establishing, to paraphrase the critical portion of s.138(1), that the worker's injury had been "caused under circumstances creating a legal liability in [Carrier] to pay damages."

4 At trial, the judge was not satisfied that VWA had established that threshold matter. VWA appeals, challenging that conclusion. It also asks this Court,[1] if it is successful upon the threshold issue, to determine the so-called "factor X", that being one of the factors made relevant to the determination of the amount of an indemnity.[2]

Propositions pertinent to resolution of the appeal

5 A number of propositions which bear upon the resolution of this appeal may be shortly stated.

6 First, it was not in dispute at trial that Carrier owed a duty of care to the worker. It was common ground, correctly so, that the duty of care was akin to that owed by an employer to a worker. Although the factual circumstances were somewhat different, TNT Australia Pty Ltd v Christie & Ors.[3] provides a useful analogy.[4]

7 Second, the duty of an employer, as recently restated by the High Court in Czatyrko v Edith Cowan University,[5] remains as follows:

"An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work."

8 Third, an employer's duty of care, although it may properly be expressed in general language, has more than one component. It includes the provision of a safe system of work; a safe place of work; and proper plant, equipment and appliances.[6] It includes, also, instructing a worker in the performance of his or her work where instructions might reasonably be thought to be required to secure that worker from danger or injury.[7]

9 Fourth, even in an extreme case - which was not this situation - an employer's duty to provide a safe system of work is not discharged by leaving it up to its employee to devise the system.[8]

10 Fifth, the last part of the passage which I cited from Czatyrko, referring to the possible "carelessness" of a worker, was addressed in McLean v Tedman[9] where Mason, Wilson, Brennan and Dawson JJ said that -

"The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk."[10]

11 Sixth, whether an employer is in breach of its duty of care depends upon the reasonable response which is required having regard to the magnitude of the risk of injury to an employee in the performance of a task in the workplace, and the probability of its eventuating.

12 Seventh, a right of appeal in respect of a civil matter which has culminated in an order or judgment of a judge of the County Court is conferred by s.74(1) of the County Court Act 1958. The powers of this Court in such a case are specified by s74(3). It is unnecessary, for present purposes, to consider the place of s.14 of the Supreme Court Act 1986 in the regime thus established. Nor is it necessary to refer to Chapter 1 of the Rules,[11] or the corresponding Order of the County Court Rules of Procedure in Civil Proceedings.[12] It is enough to say that an appeal brought under s.74(1) of the County Court Act is in the nature of a re-hearing. The content of that task[13] has been the subject of fresh pronouncements by the High Court in recent times - in Fox v Percy,[14] Pledge v Roads & Traffic Authority,[15] and CSR Ltd v Della Maddalena.[16] The task is, of course, different where a discretionary decision is the subject of the appeal.[17] But although the question whether a person was guilty of negligence does involve elements of degree, and value judgment, nonetheless a judge's answer to the question is not a discretionary determination; just as it is not to be equated with the verdict of a jury.[18] On the other hand, where the resolution of a question involves elements of fact, degree and value judgment, it may be said that it will be more difficult to persuade an appellate court of error than in the case of findings of fact where questions of degree and value judgment do not arise.[19]

13 In the present case, the threshold issue upon which VWA failed - that is, establishing that the worker's injury had been caused under circumstances creating a legal liability in [Carrier] to pay damages - depended upon whether Carrier was in breach of the duty which it admittedly owed him. According to the learned judge, there was also a question of causation. Accepting for the moment that both questions arose, neither involved a discretionary determination. The general approach upon a re-hearing is in point.

The Evidence

14 Most of the evidence was not the subject of dispute. Its important threads - I focus mainly upon evidence pertaining to what I have called the threshold issue, but also upon evidence pertinent to the determination of factor X - were as follows: First, the worker was instructed, on the morning of his first day at Carrier, to break up wooden pallets[20] and to throw the broken up pieces into a large skip. The height of the sides of the skip was greater than the height of the man, being variably estimated at six to eight feet.

15 Second, the worker was provided with a hammer, but no other equipment, with which to perform his duties.

16 Third, the skip was located in the yard of Carrier's premises. There was no ladder in the yard, but there were ladders in the boiler shop, which was variably estimated as being 10, 20 and 50 metres from the yard.

17 Fourth, the worker suffered injury when he tripped and fell - despite taking, as he said, particular care - whilst descending from a makeshift platform, adjacent to one side of the skip, which he had ascended so that he could see into the skip. He had got onto the platform so that he could see whether the load had fallen unevenly. For if it had done so, it must have been re-arranged so that the skip could be efficiently filled. The platform, as described by the plaintiff, was a stack of hessian bags. Whether that was an accurate description was a matter of some dispute; one to which I will return later in these reasons.

18 Fifth, the worker's superior at Carrier, Alan Peacock, accepted in cross examination that it was a reasonable thing for the plaintiff to check where he had thrown the material, that if material had been stacked badly he - Peacock - would not have felt too happy about the situation, and that it would not "be out of any real expectation" that "someone doing his job efficiently and properly would want to look in the skip to see precisely how the wood was landing". The witness also said that "he has to look in the skip, yeah".

19 Sixth, the worker was given no instruction as to the method by which he was to look into the skip. He was not told not to climb onto the makeshift platform which he ascended, whatever was its precise nature. It was anticipated by Mr Peacock, I add, that a bag or bags - though filled rather than empty - would be located beside the skip.

20 Seventh, not only was the worker not provided with a ladder in order to carry out his duties, he was not told that the same was available. He did not know whether or not ladders were available. He did not ask. He worked out the means by which he would inspect the inside of the skip for himself. He wanted to complete the job as quickly and safely as he could.

21 Eighth, use of a ladder apart, according to Mr Peacock, "if you're driving the fork (lift) you can see into the skip". There was no evidence suggesting that the worker had been so instructed.

22 Ninth, Carrier had written Environmental Health & Safety Rules ("the rules"). They provided, inter alia, that "climbing on stacks of materials and storage racks is not allowed". The worker said that he could not recall whether or not he was shown this or any other safety documentation. He asserted that if he had read the rules, he would not have gone against them.

23 Mr Peacock gave evidence as to his belief concerning Carrier's practice of conveying the rules to new employees. It was his belief that a Health and Safety Officer would show a new employee the company's safety booklet and rules, and have the employee read and sign them. That was not his function.

24 Carrier's Environmental Health and Safety Co-ordinator as at October 1999 was Robert Carey. He gave evidence that he was the person responsible for safety inductions. If he was unavailable, someone else would assume the responsibility. In that connection he mentioned Mr Peacock. Contrast the evidence of that witness. Each and every new employee was given the safety material, and had to sign an acknowledgement that the same had been read and understood.

25 Mr Carey gave further evidence that he could not specifically recall the worker. He also said that as at October 1999 he normally started work at 8.30am. He gave no evidence at what time he started work on 8 October - that is, assuming he attended Carrier's Bayswater premises that day; for he did not always do so.

26 No documentation signed by the worker and acknowledging that he had read the rules was adduced by Carrier at trial. Nor was any other direct evidence given that the worker had been given a safety induction. The worker gave evidence, it should be noted, that he reported for work at 7am on what was shown to be both his first day of work at Carrier and the day of the accident - that is, a time well before the ordinary hour of Mr Carey's arrival.

27 The state of the relevant evidence, as I have summarised it, really compels a conclusion that the worker was not provided with, and so did not read, the rules. It further suggests that he was not given any safety induction at all.

28 Tenth, the circumstances in which the worker came to be sent to Carrier were probably that someone from Carrier's office simply rang up Workforce and requested supply of a man. Such a call was probably precipitated by Mr Peacock requiring extra help; or else the factory manager suggesting that additional help was needed. There was no evidence that Workforce made a site assessment - that is, as would enable evaluation of site safety and Carrier's safety practices - before the worker was sent to Carrier; or that it had made a site assessment at any earlier time. According to Mr Carey, it had happened that labour hire companies made such assessments. Mr Peacock gave evidence to like effect.

29 Eleventh, in a compensation claim form which he completed, in answer to a question "Do you believe anyone was responsible for your injury/condition?", the worker answered "no".

30 Twelfth, on 11 October 1999, that being the day on which the worker reported the incident, Mr Carey described what had occurred in an investigation report which he compiled:

"Filling waste containers with wooden rubbish, climbed up on heshen (sic) bags next rubbish container to check if laying flat in bin. Slipped while getting down, fell onto wrist (left) causing pain and swelling."

Under the heading "Procedures", Mr Carey ticked a box which said -

Under the heading "Hazard Recognition", he ticked a box which said -

Viva voce, Mr Carey said by the last tick which I have described he was trying to say that -

"Maybe someone might climb on them but they think it's such a low risk because no one would be stupid enough to do it?"[21]

The Reasons at first instance

31 Noting that the claim was pursued both at common law and under Part II of the Wrongs Act 1958, the learned judge concluded, in effect, that proof of negligence in the one would make out breach of duty in the other. No complaint was raised on the appeal about that approach. Argument, as I have earlier noted, focussed on whether Carrier had been in breach of its common law duty.

32 Next, his Honour concluded, as the evidence dictated, that it was "inherently part of the job", and "particularly sensible", for the worker to look into the skip.

33 His Honour then set out the worker's account of the accident, beginning with a reference to the worker stepping onto "some empty hessian bags".

34 Concerning the bags, the learned judge referred to Mr Carey's evidence that he had never seen empty bags placed next to the skip in the position described by the worker; and to evidence given by Mr Peacock that the only bags close to the skip were "full bags of cardboard".

35 His Honour next noted the competing submissions of the parties. He described the principal submission for VWA as follows:

"[Counsel] submitted, given the obligations upon [Carrier], that [Carrier] had failed to supply for the worker...a safe system of work. He submitted further that the fundamental question for the court to determine was whether negligence of [Carrier] was a cause of the injury in this case."

"It is necessary, of course, in order to answer [the question whether negligence of Carrier was a cause of the injury to the worker], to consider the issue of causation."

37 His Honour identified a number of circumstances which had been said, or which he considered, bore upon resolution of that question. Thus -

• Failure by Carrier to properly instruct the worker.

• Failure by Carrier to warn as to the risks involved.

• Failure by Carrier to direct the worker how he was to look into the skip.

• Failure to advise and direct the worker that he should use a ladder.

• Failure to ensure that the worker did not use the hessian as a platform.

• The determination of the worker himself to use the hessian as a platform.

• The worker's assessment that the task which he decided to carry out was safe and without hazards.

• The circumstance that the worker caught his foot in the hessian whilst carrying out the task.

38 Against that background, the learned judge appears to have focussed upon the question whether any of the factors which he had listed "were causative of the accident"; and to have answered that question in the negative. At one point in his analysis, however, his Honour did say that he "did not find...that the [worker's] actions or the risk involved was foreseeable"; and he said also that he was "not satisfied that there was a foreseeable risk that the worker...would utilize the bags in such manner, nor was there any evidence that he was in any foreseeable danger."

39 The conclusions which I have summarised provided the foundation for his Honour dismissing VWA's claim.

Submissions in this Court

40 The initial question, as I said earlier, is whether the worker's injury was caused under circumstances creating a legal liability in Carrier to pay damages to the worker.

41 Counsel for the appellant submitted that -

• This was a very clear case of breach of duty on the part of Carrier. It had been rightly accepted as being part of the worker's job that he should inspect the interior of the skip. He had to gain elevation to look into it. Although his Honour had not made pertinent findings, it was the fact that no ladder had been provided for use by the worker, that the worker was not told about, and knew nothing about, the availability of ladders, that no pertinent instruction had been given, and that no safety induction had taken place. Bags had been left proximate to the skip. The worker had decided to use the bags as a platform. He had thought it would be safe to do so. He had been wrong. That was a distraction. It did not show that risk of injury was not reasonably foreseeable in the event that the worker used the bags as a platform. As to the extent of such risk, it was pertinent whether the bags had been full or empty and the judge had made no clear finding in that connection. For its part, Carrier had not assessed whether there was any risk of injury in the circumstances described by the worker. For on its account, empty bags were not left proximate to the skip.

• In any event, and crucially, it had been for Carrier to devise, implement and maintain a safe system of work, and to act in conformity with the other aspects of its duty of care which I have earlier mentioned. It had failed altogether to do any of those things. It was no answer to such failure to say that, had it known what the worker would do, it would not have considered there to be a risk of his being injured; a contention which did not sit comfortably with its rule 13.

• The judge had not dealt at all with VWA's contention that Carrier should reasonably have provided a ladder for use by the worker, or told him that a ladder was available. Plainly, if a ladder was not provided, or at least if the worker was not told that one was available, there had been a risk of injury which was neither far-fetched nor fanciful. There would inevitably have been improvisation of some sort.

• Reliance on the worker's statement in his compensation claim form that no one had been responsible for his injury had been misplaced. The supposed concession was inconsequential.

• Whilst it was not necessary to identify specific legal error in the reasoning of the learned trial judge, in fact his Honour had focussed upon the issue of causation; and this case was not about causation. It was a case about breach of duty. In the event that there had been breach, the relationship between breach and injury had not been, and was not, in debate.

• Carrier was not an insurer of workplace safety. The central question was the reasonableness of its behaviour.

• The main question at trial had been whether a ladder should have been provided. The task had been a simple one. The risk of injury had been thought to be slight. The improbability of injury had been apparent to both the worker and Carrier. That explained why the worker had taken no step to obtain a ladder.

• VWA had carried an onus at trial. It had not discharged that onus.

• The approach of the learned trial judge had not been flawed fundamentally.

• The relevant findings were not against the weight of evidence.

Resolution of the threshold issue

43 In my opinion, upon facts found, and facts that should have been found, VWA made out its case that the worker suffered injury under circumstances creating a legal liability in Carrier to pay him damages. The conclusion of the learned trial judge to the contrary cannot be sustained. The following matters, some disclosed by facts found, and some flowing from consideration of all the evidence, are in point.

44 The worker was given a job to do, part of which involved a task that could not be performed from ground level. Concerning that part of the job which could not be performed from ground level, the worker was given no instructions or warning. Neither was he provided with a ladder for use in the task, or told that a ladder was available. Simple though the task was, in the absence of any described system of work, provision of equipment, or warnings, there was a real risk that the worker would improvise, and in so doing expose himself to risk of injury. In the event, the worker selected a manner of doing the job which he thought would be safe. It was a way of performing the job which Carrier's safety rules prohibited. But the worker did not know that, for it followed from the evidence that he had not been apprised of those rules. The fact that the worker had in the past, in connection with other employments, been instructed, let it be supposed many times, about health and safety matters, did not relieve Carrier of its obligations. It was not absolved of such obligations by the circumstance that the worker made an assessment of risk in respect of a particular method of performing part of a job which he had been told to do. The fact that, in a sense, the worker had two employers did not relieve Carrier of the duty of care which its counsel accepted it had, and which I have earlier described.

45 It is possible to reach the conclusions just stated without resolving the question - which his Honour did not explicitly resolve - whether the makeshift platform which the worker ascended comprised a stack of empty bags, or one or more filled bags; although it may be said that the risk of injury would be the greater if the worker had stepped onto a bag or bags which were filled with waste cardboard. In my opinion, however, the evidence enabled resolution of that question; and it should be resolved. For its resolution is at least relevant to the determination of factor X. In its resolution, I add, no issue as to the credibility of witnesses arises.

46 The plaintiff, so far as the evidence went, was the only person who actually saw the platform on which he stood. He described it as "a stack of hessian bags that had been made flat, probably to the height of . . . three feet...". He repeatedly referred to "bags" - that is, in the plural. His foot, he said, caught in a particular bag. He was asked in cross-examination if he had checked what was within the bags. He eventually said that he had not checked what was in them. It was not put to him that what he had stood upon was a bag filled with some material. Neither was it put to him that he stood upon a bag which was contained in a structure, and which was wholly or partly filled with cardboard.

47 The plaintiff's evidence was consistent with the account which he gave in the compensation claim form completed on 11 October 1999; and, for that matter, with the history which he gave to his first treating doctor.[22] It is understandable, in the circumstances, that his account was not really challenged.

48 I turn to the evidence of Messrs Peacock and Carey. The former said that hessian bags were stored by the skip when they were full. Before being filled, he thought that they were kept outside the yard. He "couldn't see" empty hessian bags being put at the place described in the worker's evidence.

49 Then there was the evidence of Mr Carey. He said that he had no recollection of the incident apart from the investigation report which he completed. In terms, it was consistent with the worker's account of the event.

50 The witness gave further evidence. It had two threads. First, he said that whether stacks of empty bags were adjacent to the skip depended upon where the supplier threw them. Some days they might be adjacent to the skip, some days they might not. He could not say what the situation had been on 8 October 1999. He would not agree, in any event, that there would be enough hessian bags to elevate a worker to the height of a skip.[23]

51 Second, Mr Carey gave evidence concerning the filling of hessian bags. In short, he said that was done by fitting a bag into a three-sided frame, filling the bag with waste cardboard, and tying off its top when full. A bag, when full, would be a height of approximately five feet. But when taken out of the frame, "they collapse, as all types of sacking do".

52 In my opinion there was no significant conflict in the evidence. The worker said that he stood on a stack of hessian bags. There is no doubt that he was speaking in the plural. Although Mr Peacock thought that empty bags were always stored somewhere else, that was not consistent with Mr Carey's evidence. The only real alternative to the worker's account was that he had stood on a single full bag, initially some five feet high, which had collapsed to some extent after being taken out of the frame. I say "only real alternative" because, if filled bags had been stacked one on top of the other, then even allowing for collapse their height would evidently have been too great to admit of the worker clambering onto them. The same may be said of the worker attempting to clamber onto a bag which had been fitted into the frame, and which was in the process of being filled.

53 There being only two real alternatives, the worker's evidence strongly favoured his having climbed onto a stack of empty bags, though not necessarily a stack that was three feet high. It was quite improbable that the worker would not have been able to differentiate between having climbed onto a stack of bags, and having climbed onto a single bag which had been filled with cardboard, and so was likely unstable.

54 This should be added. It was for Carrier to devise, implement and maintain a safe system of work, to provide a safe place of work, proper plant, equipment and appliances, and to suitably instruct, supervise and warn the worker. It was no answer to those obligations to say that, had it known the particular method which the worker would choose of performing a task, it would not have thought there to be risk of injury. That said, Mr Carey expressed the opinion that it would not be unsafe to climb onto a stack of empty bags. If he was expressing an opinion about the stability of such a platform, his evidence did not sit comfortably with Carrier's safety rule 13. In any event, his opinion was not informed, so far as the evidence revealed it, by any investigation of the stability or otherwise of such a stack; whilst there is nothing to indicate that it addressed risks of injury other than those which might relate to stability.

Factor X

55 The applicant sought to amend its notice of appeal so as to seek determination by this Court of factor X in the event that the threshold issue was resolved in its favour. Carrier submitted, to the contrary, that the entire proceeding should be remitted for re-trial. Its counsel argued that the determination of factor X involved issues of relative emphasis, proportion and value judgment which should properly be confided to the trial judge. Here, there were no findings which were capable of review by this Court. In any event, the proceeding would have to be remitted to the County Court for assessment of what was called "factor A".

56 In my opinion this Court should make a determination of factor X. That is regardless that there will need to be a determination of factor A in the County Court.[24] The issues pertinent to the determination of factor X were fully debated in this Court in the context of submissions about the threshold issue. Further, it was intimated that it was unlikely that further evidence would be led bearing upon factor X. Again, the fewer issues - concerning a claim for about $47,000 which has already found its way to this Court - which are remitted for consideration by the County Court, the better.

57 Sections 138(1) of the Act provides that, where the threshold issue is resolved against the third party

" . . . the Authority, self insurer or employer is entitled to be indemnified by the third party in accordance with this section".

58 Subsection (3) provides that the amount of the indemnity is to be the lesser of the amount of compensation paid or payable under the Act in respect of the injury, and the amount calculated in accordance with a specified formula. Factor X is one element of the formula. It is described this way:

"X is the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury".

59 There must be brought to account, in establishing the extent of the third party's negligence, the part played by any negligence of the employer, and the part played by any contributory negligence of the worker. The nature of the exercise was described by Winneke, P in Esso Australia Ltd v Victorian Workcover Authority & Anor[25] in terms akin to the determination of entitlement to contribution under Part IV of the Wrongs Act 1958, and of contributory negligence under Part V of that Act. What his Honour there said was consistent with the earlier decision of this Court in Bourke v Hassett & Ors.[26] There, the outcome of contribution proceedings between defendants in the trial of the principal proceeding was determinative of a related proceeding brought pursuant s.138 of the Act.[27]

60 It was submitted for VWA in the present case that responsibility for the worker's injuries rested almost entirely on Carrier. True it was that Workforce had breached its non-delegable duty to the worker. But the essential breach had been that of Carrier in failing to provide or make available a particular piece of equipment to perform a particular job. The extent of Carrier's responsibility should be assessed at 90% or more. There had been no contributory negligence on the part of the worker, at most mere inattention or inadvertence in the course of him trying to do his best to perform the job which he was assigned.

61 It was submitted for Carrier, to the contrary, that if this Court embarked upon the determination of factor X, the extent of its responsibility should be assessed at most at 50%. It was clear that Workforce had done nothing by way of site inspection, or to ensure the worker's proper induction by Carrier.

62 Each case must be considered by reference to its own particular facts. The outcome of cases of a similar kind only provides a guide to the generally appropriate approach. That said, I consider that the extent of Carrier's responsibility, for the purposes of factor X, should be assessed at 65%, the extent of responsibility of Workforce being 35%.

63 In concluding that Carrier should bear the main responsibility, I think it is of importance that it failed to give the worker, on his first day on site, any relevant instruction or warning, and that it confided to him a task in respect of one aspect of which it did not prescribe a system of work, did not provide suitable equipment, and did not say anything about the availability of such equipment.

64 I consider, on the other hand, that the conduct of Workforce was considerably blameworthy. So far as the evidence revealed the situation, it probably took a phone call from Carrier, and then sent the man on site; no more. There was no evidence that it - by contrast with other labour hire companies - had ever made a site assessment as would have revealed, particularly, the adequacy or otherwise of Carrier's induction process, and its safety regime. There was no evidence that it had any idea, or that it enquired, what work its employee would be put to do; or where, or with what equipment. In essence, so far as the evidence revealed the situation, it sent its employee to work at Carrier without showing any interest or concern for his safety.

65 What then becomes significant is that steps which it should reasonably have taken, but failed to take, did bear upon the worker sustaining injury. At the very least it should reasonably have insisted that Carrier give adequate instructions to its employee about the duties he was to perform, and equipment which he should use in performing the same; and should have insisted that he be fully instructed about the details of Carrier's occupational health and safety regime before he began work. Had Workforce have insisted upon such matters, there must be real prospect that the serious omissions in what Carrier conveyed to the worker would not have occurred.

66 It will already be apparent that I do not consider, in all the circumstances, that the worker was guilty of contributory negligence. I should shortly say why I am of that view. It could be said against the worker that, notwithstanding he was neither properly instructed or warned, and notwithstanding he was not provided with, or informed about, the availability of a ladder, nonetheless he was a man experienced in the safety aspects of work who essayed a risky activity. The worker's evidence plainly showed, however, that he was attempting to do the work which he had been assigned, in the absence of a described system of work, and in the absence of provision of proper equipment, quickly and efficiently. In such circumstances a decision may be made which, given the wisdom of hindsight, involves taking an unacceptable risk. That seems to me to have been this case. It does not require a finding of contributory negligence, particularly where the evidence leads to a conclusion that his improvised platform was a stack of empty bags.

Conclusion

67 I would grant leave to VWA to amend its notice of appeal, allow the appeal, and determine factor X to be 65%.

68 I have had the advantage of reading in draft the reasons for judgment of Ashley J.A. and I agree, for the reasons stated by his Honour, that the appellant should have leave to amend its notice of appeal, that the appeal should be allowed and that factor X should be determined to be 65%.

[1] By proposed amendment of its Notice of Appeal.

[2] See s.138(3)(b).

[3] [2003] NSWCA 47.

[4] See the observations of Mason, P at [41]-[42], and of Foster, AJA at ]178]. There is nothing new in the concept. See, for example, the remarks of Denning, LJ in Denham v Midland Employers Mutual Assurance Ltd. [1955] 2 QB 437 at 443-447; and the observation of Brennan, J in Oceanic Crest Shipping Company v Pilbarra Harbour Services Pty Ltd. [1986] HCA 34; (1986) 160 CLR 626 at 668 that the rule to be derived from Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd & Anor [1947] AC I and McDonald & The Commonwealth [1945] 46 SR (NSW) 129 was not that a person cannot be the servant of two masters.

[5] [2005] HCA 14; (2005) 79 ALJR 839 at 842-3, [12].

[6] See, eg. Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at 159-160 [101] per Kirby, J.

[7] O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225 at 229, cited by Mason, CJ, Toohey and Gaudron, JJ in Nicol v Allyacht Spars Pty Ltd [1987] HCA 68; (1987) 163 CLR 611 at 617.

[8] See, eg, Nicol at 624-5 per Dawson, J.

[9] [1984] HCA 60; (1984) 155 CLR 306 at 312.

[10] McLean was not cited in Czatyrko. But the Court referred to the reasons of Kirby, J in Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460 at 500 [128]; and there his Honour cited McLean.

[11] Specifically, Order 64.

[12] Order 64A.

[13] Bearing in mind that the regime established by the relevant legislation and rules may not always be precisely the same.

[14] [2003] HCA 22; (2003) 214 CLR 118, particularly at 125-127, [22]-[23], [25] per Gleeson, CJ, Gummow and Kirby JJ.

[15] (2004) 78 ALJR 574 at 581-582, [43].

[16] [2006] HCA 1, see particularly per Kirby, J (with whom Gleeson, CJ agreed) at [14]-[23].

[17] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5; Australian Coal & Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627 per Kitto, J.

[18] Warren v Coombes & Anor [1979] HCA 9; (1979) 142 CLR 531 particularly at 552 per Gibbs, ACJ, Jacobs and Murphy, JJ; Mobilio v Baliotis [1998] 3 VR 833 at 837 per Brooking, JA.

[19] Mobilio at 836-837 per Brooking, JA.

[20] And, he said, cardboard boxes.

[21] A question, so formulated, was asked by the learned trial judge.

[22] Evidently not on "1st October." The report contained a typographical slip.

[23] Alan Peacock gave evidence to a somewhat similar effect.

[24] Determination of factor A would very likely involve a short hearing.

[25] [2000] VSCA 74; (2000) 1 VR 246 at 253-254, [21]. In Esso, the trial judge in fact did not find any contributory negligence on the part of the worker.

[26] [1999] 1VR 189.

[27] See at 202, [49].