Bethune v Qconn Pty Ltd - [2002] FCA 1485

FEDERAL COURT OF AUSTRALIA
Bethune v Qconn Pty Ltd FCA [2002] FCA 1485
PERSONAL INJURIES – claim for damages for personal injuries suffered by the applicant in an accident involving a Case 1845 Uni-Loader (a “Bobcat” – style machine) – liability of the respondent in issue
MISLEADING OR DECEPTIVE CONDUCT – whether the respondent was liable for the applicant’s damage under s 52 of the Trade Practices Act 1974 (Cth) or s 56 of the Fair Trading Act 1987 (SA)
CONTRACT – whether the contract of sale between the applicant and the respondent contained an implied term as to “merchantable quality” by virtue of s 71 of the Trade Practices Act 1974 (Cth) or s 14 of Sale of Goods Act 1895 (SA) that was breached by the respondent
NEGLIGENCE – whether the respondent vendor owed the applicant purchaser a duty of care – whether the respondent breached any such duty – whether the harm suffered by the applicant was caused by any such breach
CONTRIBUTORY NEGLIGENCE – whether the conduct of the applicant was a contributing cause of his injuries for the purposes of apportioning damage under the Wrongs Act 1936 (SA)
LIMITATION OF ACTIONS – whether an application by the applicant to re-open his case and amend his statement of claim by pleading a new cause of action should be allowed under the Limitation of Actions Act 1936 (SA)
Trade Practices Act 1974 (Cth) ss 52
Fair Trading Act 1987 (SA) ss 56
Occupational Health, Safety and Welfare Act 1986 (SA) subs 24(1)
Wrongs Act 1936 (SA) subs 27A(3)
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA)
Sale of Goods Act 1895 (SA) ss 14 I, 14 II
Limitation of Actions Act 1936 (SA) ss 35, 36, 48
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 cited
Kabwand Pty Ltd v National Australia Bank Ltd (1989) 11 ATPR ¶40-950 cited
Bartlett v Sidney Marcus Ltd [1965] 2 All ER 753 applied
Atkinson v Hastings Deering (Queensland) Pty Ltd (1987) 71 ALR 93 cited
Lambert (sub nom Lexmead (Basingstoke) Ltd) v Lewis [1982] AC 225 considered
Grant v Australian Knitting Mills Ltd [1936] AC 85 distinguished
Daley v Gypsy Caravan Co Pty Ltd [1966] 2 NSWLR 22 distinguished
Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 applied
Chicco v The Corporation of the City of Woodville (1990) Aust Torts Reports ¶81–028 cited Maynard v Rover Mowers Ltd [2000] QCA 26 cited
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 applied
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 applied
Cubillo v Commonwealth(No 2) (2000) 103 FCR 11 applied
PAUL JOHN BETHUNE, BERNADETTE LISA RUSSELL, BROOKE CHLOE BETHUNE by her next friend BERNADETTE LISA RUSSELL AND CHASE PAUL BETHUNE by his next friend BERNADETTE LISA RUSSELL v QCONN PTY LTD trading as CASE ADELAIDE (ACN 065 841 922)
NO S 34 of 1999
O’LOUGHLIN J
28 NOVEMBER 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 34 OF 1999

BETWEEN:

PAUL JOHN BETHUNE
FIRST APPLICANT

BERNADETTE LISA RUSSELL
SECOND APPLICANT

BROOKE CHLOE BETHUNE by her next friend BERNADETTE LISA RUSSELL
THIRD APPLICANT

CHASE PAUL BETHUNE by his next friend
BERNADETTE LISA RUSSELL
FOURTH APPLICANT

AND:

QCONN PTY LTD trading as CASE ADELAIDE
(ACN 065 841 922)
RESPONDENT

JUDGE:

O’LOUGHLIN J

DATE OF ORDER:

28 NOVEMBER 2002

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
The matter be adjourned sine die with liberty to any party to bring the matter back on for hearing on seven days notice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 34 OF 1999

BETWEEN:

PAUL JOHN BETHUNE
FIRST APPLICANT

BERNADETTE LISA RUSSELL
SECOND APPLICANT

BROOKE CHLOE BETHUNE by her next friend BERNADETTE LISA RUSSELL
THIRD APPLICANT

CHASE PAUL BETHUNE by his next friend
BERNADETTE LISA RUSSELL
FOURTH APPLICANT

AND:

QCONN PTY LTD trading as CASE ADELAIDE
(ACN 065 841 922)
RESPONDENT

JUDGE:

O’LOUGHLIN J

DATE:

28 NOVEMBER 2002

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

The first named applicant in these proceedings, Paul John Bethune (“Mr Bethune”), was born on 25 March 1969; he was aged thirty-three when he gave his evidence in this trial. At all times that are material to these proceedings, Mr Bethune has lived with his partner, Bernadette Lisa Russell (“Ms Russell”). They have two children from their relationship, a girl, Brooke, who is aged eleven and Chase, a boy, who is aged nine. Ms Russell is aged thirty-one. The four of them have sued the respondent, Qconn Pty Ltd, trading as “Case Adelaide”, for the damages that they suffered when Mr Bethune was seriously injured whilst using a Case 1845 model Uni-Loader (“the 1845 Uni-loader” or “the 1845”).
Qconn Pty Ltd is a company that was incorporated in South Australia. At all material times, it has carried on business out of premises at 36 Churchill Road North, Dry Creek in that State. It was alleged in Mr Bethune’s statement of claim, and admitted by Case Adelaide, that the respondent is a trading corporation within the meaning of subs 4(1) of the Trade Practices Act 1974 (Cth) (“the TPA”) and that, in the operation of its business, it was a corporation that was engaged in trade and commerce. Case Adelaide also admitted that throughout the relevant period it engaged:
“… in the sale to members of the general public of new and second hand construction equipment;”
and that it also engaged:
“… in the provision to members of the general public of mechanical servicing of equipment manufactured by the Case Corporation of Rancine, Wisconsin in the United States of America;”
On 9 August 1996, Mr Bethune was using a Case 1845 at premises at Two Wells in South Australia. He had purchased the machine from the respondent. In the course of his work, the branch of a tree protruded into the cabin of the machine where he was sitting. In pars 19 and 20 of his statement of claim Mr Bethune pleaded:
“19In order to remove the protruding branch from the cabin, the male applicant got up from his seat and pushed the branch back from the space within the cabin of the Case 1845.
20As the male applicant pushed back the tree branch the hydraulic arms of the Case 1845 suddenly and without warning rose up jamming the body of the male applicant between the left hydraulic arm and the roof of the Case 1845 …”
Mr Bethune suffered horrendous injuries. He was completely immobilized by being trapped between the hydraulic arm and the metal bar which formed part of the roof structure of the machine. With him in that helpless position, the loader began to move in circles around the property until Ms Russell’s father, who, fortunately, was present at the time, was able to climb into the machine, immobilise it and release the hydraulic arm. Mr Bethune was taken to hospital where his condition was so serious that it was more than two months before he could be discharged. Since then, he has been physically and psychiatrically disabled. The horror of his accident was aggravated by it having occurred in the view of his partner, Ms Russell, and their two children. They have joined with him in these proceedings, seeking damages for the trauma that they suffered as a result of seeing their partner and father hurt in such a frightening accident.
Much has been achieved by the litigants and their advisers. When the case was called on for hearing, I was informed that liability was still in issue but that the parties had agreed upon the quantification of Mr Bethune’s claim should he be successful in whole or in part. I was also informed that the claims of Ms Russell and the children had been “settled” – although I was not informed of the terms of the settlement. However, it was an agreed fact that all settlements had been achieved without any admission of liability on the part of Case Adelaide.
Before turning to the evidence concerning the 1845 Uni-loader and the terms of its purchase by Mr Bethune, it is necessary to say something about Mr Bethune’s experience with his earlier Case 1818 Uni-loader. In late 1995, Mr Bethune commenced operations, as a sole proprietor, in a business that he named “Bethune’s Total Garden Care”. The business was directed towards gardening and lawn mowing but it also included landscaping. In March 1996, he purchased a “Bobcat” for use in that business. Technically, the word “Bobcat” is the trade name for another manufacturer’s loader, but it is now mostly used as a generic word to describe a particular type of earth-moving machine. The unit that Mr Bethune purchased was a Case 1818 model Uni-loader (“the 1818 Uni-loader” or “the 1818”). As he had not previously used that type of machine, he arranged for the vendor to give him some perfunctory lessons in its operation. Some friends or associates, who were operators of similar machinery, also gave him some tuition. Thereafter, Mr Bethune used the 1818 Uni-loader in his landscaping business until 22 May 1996 when it broke down. Mr Bethune sought help from the respondent. A service mechanic was sent out to the 1818 but, as he could not fix it, arrangements were made for Mr Bethune to take the 1818 to the respondent’s premises on the following day.
It is common ground that on the next day, 23 May 1996, Mr Bethune attended at the premises of Case Adelaide for the purpose of arranging the repair of his 1818 Uni-loader; he was then accompanied by his friend and his witness, Mr Dion Phillips. Although Mr Bethune was uncertain, I am satisfied that the person at Case Adelaide to whom he first spoke was Mr John Fairburn, the Service Manager; Mr Fairburn gave evidence on behalf of the respondent in these proceedings. Mr Bethune was told that a drive shaft of the 1818 Uni-loader had broken and that it could cost in the order of $4,000 to fix it. He was also told that the necessary spare parts were not immediately available and that there was a possibility that they might have to come from overseas. Mr Bethune initially acknowledged that he told the mechanic at Case, to whom he was then talking, that he did not think that he could afford to pay $4,000. But, at another stage of his evidence, when it was put to Mr Bethune that the man to whom he first spoke had told him that the repairs would cost about $4,000 and that it would take two or three weeks to do the repairs and that parts had to come from overseas, Mr Bethune replied:
“I don’t know. No, I can’t remember that.”
There was some dispute as to whether or not Mr Fairburn told Mr Bethune that the parts for the 1818 had to be ordered from overseas, but it is not, in my opinion, necessary to resolve that incidental issue because it is common ground that Mr Bethune did not pursue his original intention to have his 1818 Uni-loader repaired; instead he purchased from the respondent the Case 1845 model Uni-loader. The 1845 was a bigger, stronger, but older machine.
Mr Bethune was asked whether he had told the Service Manager the type of work that he had been doing with his machine; he could not answer one way or the other, nor could he recall that the Service Manager said something to the effect that the 1818 was “a bit small for that sort of work and that was why your drive shaft had broken”. When the discussion between Mr Bethune and Mr Fairburn moved from having his 1818 Uni-loader repaired to the prospect of him purchasing a replacement piece of equipment, Mr Lindsay Black took over the negotiations. He was, and is, the Managing Director of the respondent. Despite Mr Bethune’s uncertainty, I am satisfied that Mr Fairburn introduced Mr Bethune to Mr Black when Mr Bethune told Mr Fairburn that he might be interested in purchasing a replacement unit.
The discussions between Mr Bethune and Mr Black were at the core of Mr Bethune’s claim for damages against Case Adelaide. In his statement of claim, Mr Bethune alleged (and the respondent admitted) that Mr Bethune had made known to Mr Black that he (Mr Bethune) was engaged in a garden-care business and that the Uni-loader that he had been using in his business had been the Case 1818 model. The parties also agreed in their pleadings that Mr Black had told Mr Bethune that the 1845 was a second-hand vehicle that had been fitted with a new motor and that it was mechanically sound. Mr White QC, counsel for the respondent, explained that the reference to a “new motor” was not a reference to a “new engine” but a reference to a new motor for an hydraulic pump; that information was not challenged by the applicant. Apart from those areas of agreement, however, the litigants were far apart with respect to what the parties said to each other on the occasions when Mr Bethune attended at the respondent’s premises on 23 and 24 May 1996. Case Adelaide denied that Mr Bethune told Mr Black that he wanted the 1845 to replace his Case 1818 and it also denied that Mr Black had said that the 1845 would be suitable for use by Mr Bethune in his business.
Exhibit R1 is a business “flyer” that was used by Mr Bethune to advertise his business. It is entitled:
“Bethune’s Total Garden Care”
It then carries a series of headings indicating the type of work that the business performed; they included such matters as irrigation systems and landscaping. It was not disputed that Mr Bethune gave this “flyer” to Mr Black. It is not difficult to imagine that such a business would, more likely than not, have use for a machine such as a Uni-loader. I therefore find that Mr Black knew the type of business that was carried on by Mr Bethune and that Mr Bethune made known to Mr Black the nature of the use to which he wished to put the 1845 machine. I also find, as a logical consequence of those findings, that Mr Bethune told Mr Black that he wished to purchase the 1845 Uni-loader in order to replace the 1818 Uni-loader.
Mr Bethune agreed that when he visited the premises of Case Adelaide on 23 and 24 May 1996, there were some Uni-loaders (that is, machines like Bobcats) displayed in the front of the premises and that they were for sale. However, their prices were beyond his reach; he told Mr Black that he could not afford any of them. It was then that Mr Black told him that he had an older unit in the back of his premises. The men looked at it. It was the 1845 Uni-loader that Mr Bethune eventually purchased. It was common ground that Case Adelaide ultimately offered to sell the Case 1845 to Mr Bethune for $10,000 in return for the trade-in of the Case 1818 at an agreed value of $8,000 plus $2,000 cash and that Mr Bethune accepted that offer. Mr Bethune was able to organise the required finance with Esanda Finance Corporation Limited (“Esanda”) and he took delivery of the 1845 on 24 May 1996.
Selected pages from the operator’s manual for the 1845 Uni-loader were tendered as part of the applicant’s case. A central issue in this case is the section at p18 entitled:
“ROLL-OVER PROTECTION STRUCTURE”
The entry under that heading read as follows:
“Your machine has a roll-over protective structure (ROPS) … before you operate this machine, always make sure that the ROPS, ROPS side screens and operator’s seat belt are correctly installed.”
There followed thereafter, a warning that the operator must wear the seat belt at all times while operating the machine. The ROPS framework consists of four vertical metal bars stretching upwards from the four corner points of the cabin. They are then connected at their top-most points by four horizontal metal bars so that an outline or a framework around the cabin and the seated operator is thereby formed. The ROPS side screens are made of wire mesh which is welded to a frame. In turn, the frame is bolted to the metal bars of the ROPS. Mr Black said, and I accept, that when his company acquired the 1845 as a “trade-in” on the sale of another piece of equipment, it had a roof screen but no side or rear screens and no door or screen in the front of the cabin. Mr Black said, and again I accept this evidence, that it was his company’s intention, when preparing the 1845 for resale, to install side screens on both sides but not to the back or front of the cabin. That claim is borne out by his company’s job sheet dated 17 April 1996.
It is common ground that when Mr Bethune took delivery of the 1845, the side screens had not been installed. Furthermore, it did not have an operational seat belt and the respondent did not supply Mr Bethune with an operator’s manual for the machine. It pleaded that a manual was unnecessary as Mr Bethune “was an experienced Bobcat operator” – an allegation that Mr Bethune denied in his reply. The purpose of the side screens is and was to protect the operator from missiles and protrusions of various sorts during the course of operating the Uni-loader. Much time was therefore devoted, during the course of the oral evidence, as to what was said about the absence of the side screens.
Mr Bethune had the operator’s manual for the 1818 Uni-loader during the time when he was using that machine. He said that he had read it although he could not recall, at the time of giving his evidence, what the manual said about not operating the machine unless the side screens were attached: nor could he remember what it said about the use of a safety belt. Prior to it breaking down, he said that he had used the 1818 regularly in his business –at times up to ten hours a day. He agreed that by practical experience, he had become more competent in the use and operation of the machine. He also agreed that when he bought the 1845 model, he saw that the controls were “pretty much” the same as those in the 1818.
Mr Bethune’s 1818 Uni-loader had side screens on both sides and, so Mr Bethune thought, at the back. It did not, however, have a door or screen in the front. I also infer from the nature of Mr Bethune’s evidence that there was also a roof safety screen for he talked of being “enclosed” except for the front section. When the manual for the 1818 model was put before him, it was drawn to Mr Bethune’s attention that a picture of the model did not show a screen at the rear. Mr Bethune conceded that he “may be wrong” but he went on to add that he was “fairly positive” that his 1818 did have “something at the back”.
The 1818 model, being a later model, had a function that was not present in the 1845 model. It comprised a set of seat bars that were referred to as “an interlocking function”. When the operator sat in the cabin of the 1818 machine, there were two hinged arms on either side (ie, the seat bars) that the operator could draw together over his or her lap and lock into a secure position. They represented a form of restraint on the operator unless he or she made the deliberate effort to unlock the arms. The significance of the interlocking function was that when the arms were disengaged, the machine was immobilized. According to Mr Bethune, the 1818 Uni-loader had a conventional seat belt as well as the interlocking function. As there was no like interlocking function on the older 1845, it made the need for an operational seat belt more apparent. Mr Bethune accepted that he had read in the manual for the 1818 the statement:
“Before you start the engine, always fasten the seat belt and pull down the seat bars”.
When asked whether he thought that such a warning would apply to the 1845 model as well, his answer was that he had been told, at Case Adelaide, that what he was purchasing was “standard”. There was a further warning at p10 of the 1818 manual:
“Do not place any part of body or limb under the raised loader arms, bucket or attachments at any time. Keep body and limbs within protective structure at all times. Contact with moving parts can result in severe injury or death.”
Asked whether he considered that such a warning would apply to the 1845 model, Mr Bethune replied:
“Well, obviously it would apply, but I was told that it was the way it was on – and I’m not going to have to repeat that again, if I may …”
In rejecting Mr White’s proposition, during the course of his cross-examination, that he should have been aware of the danger of protruding any part of his body, Mr Bethune countered by saying that there should have been some form of “cut off for hydraulics”: that is, something similar to the 1818’s interlocking function. He then made the somewhat surprising claim that even though he had regularly used the 1845 model from late May 1996 to the date of his accident on 9 August 1996, he was not aware that there was no interlocking function or “cut off” in the 1845. I cannot accept that passage in his evidence. His explanation was to say that the only time that he left the cabin was on occasions when it was also appropriate to switch off the engine. Such an occasion would happen, for example, because of a lunch break or because work had been completed. That is not a satisfactory answer for it overlooked the fact that the operator of an 1818 model would have to engage the interlocking function in order to activate the machine. The evidence was clear, that when the interlocking function of 1818 was disengaged, the Uni-loader was immobilized.

Mr Bethune was asked whether he ever thought that the absence of side screens on the 1845 carried with it some risk. At first he answered by saying that he had relied on Mr Black as a reputable dealer, telling him that the machine “was standard the way it was”. However, he ultimately conceded that the thought of danger “did go through my mind at times”. Mr Bethune was asked what he remembered about the other Case machines that he saw when he visited the premises of Case Adelaide on 23 and 24 May 1996. In particular, Mr White asked:
“Q Did each of those have safety mesh on the ROPS frames?
A I am pretty positive they did.”
The 1818 and the 1845 Uni-loaders were similar in some, but not all, respects. Both operated, for example by the use of levers; there is no steering wheel as in a conventional motor vehicle. When the operator is seated in either machine, he or she has two main levers – one on the left and one on the right, each of which is close to the operator’s knees. Movement of the two levers, forward or backward, controls forward or reverse movements. For example, pushing one lever forward and holding the other will turn the machine in the direction of the forward lever. Each machine has a bucket (that is, the front end loader) which is approximately as wide as the machine. That bucket is controlled by two hydraulic arms that are on the outer side of the machine. The main pivot for each arm is at the rear of the machine and, in terms of a seated operator, the pivot points are shoulder height, if not higher. In a resting position, the arms angle down towards a second pivot and from there to the ground where they are connected to the bucket. At their highest point the hydraulic arms reach up and beyond the top most point of the ROPS in the case of both the 1818 and the 1845. At the top of each lever there is an attached second and smaller lever; these levers control the lift and the tilt or angle of the bucket. The left hand lever, by being pushed outwards and pulled inwards, controls the upward and downward movement of the hydraulic arms. The right hand lever controls the tilt or angle of the bucket.
The explanation for the cause of Mr Bethune’s accident was not contentious. When he stood up in the cabin to break the protruding tree branch (or to push it out of the way), he lent outwards over the horizontal line of the left hydraulic arm. As he was doing that, his left leg pushed the left lever outwards causing the hydraulic arms to lift and trap his protruding body against the ROPS frame.
Mr Bethune agreed that when he examined the 1845 he noticed that there were bolt holes in the uprights of the ROPS frame. Mr White asked Mr Bethune whether he realised that the bolt holes might signify the places at which side screens had previously been affixed to the uprights of the ROPS frame. Mr Bethune replied:
“I didn’t ask anything about the holes. I just asked about the mesh itself – nothing about any holes that are in the side of it or (indistinct).”
In par 12.2 of his witness statement, Mr Bethune said that he asked Mr Black why the machine did not have any side screens; he also said that he pointed out the lack of a seat belt and the absence of interlocking arms (that is, the interlocking function). Mr Bethune then claimed:
“He told me that this was standard and that that was the way the machine was.”
Asked whether the reference to the “standard” was limited to an enquiry about the interlocking function, Mr Bethune said that he asked:
“About everything on there”
and, so said Mr Bethune, Mr Black replied:
“It’s standard the way it is.”
In par 12.7, Mr Bethune said:
“The need to affix the mesh to the Bobcat was never brought to my attention by either Mr Black or any employee of Case. If it had been I would have asked them to do so immediately. Such work obviously requiring welding, it was not something that I personally could have done anyway as I have never done any welding in my life …”
There was a critical line of cross-examination of Mr Bethune covering the conversation that Mr Bethune had with Mr Black. Specifically, the questioning related to the absence of the side screens and whether Mr Black had said anything about the work that needed to be carried out on the 1845 Uni-loader before it was ready for sale.
“QDid he tell you that there still needed to be some work done on it?
AHe told me there had been work done to it, which we were talking about before. The motor had been put on, the hydraulic, and this had been done and that had been done. Then that’s when we talked how much it was, the machine. That’s where it sat.
QDid he say words to you to the effect that, ‘This still needs some more work on it?’
ANo.
QDid he say words to the effect to you that, ‘It’s not ready for immediate sale’?
ANo.
QDid he tell you that it didn’t have safety mesh on it?
ANo.
QCould you see by looking at it that it didn’t have safety mesh?
AYes, I could, and I brought that issue up.
Q        Right. Could you see that as soon as you looked at it?
A        Yes, I could.
QYou noticed it didn’t have safety mesh. Was it, in other words, very obvious that it didn’t have safety mesh?
AWell, you could see straight through it.
QAnd did you think that it should have had safety mesh?
AYes, I asked about the safety mesh.
QDid he tell you words to the effect that they were arranging for safety mesh to be put on but it couldn’t be done for some days?
ANo.
Q        Or alternatively couldn’t do it for at least three days?
A        No.
Q        Or some expression like that?
A        No.
QDid he say something to you to the effect that when that machine had been traded in to Case Adelaide it didn’t have any safety mesh on it?
ANo, never.
…
QDid he explain to you that this machine was out the back because it was not yet ready for sale?
ANo.
QDid he give you any explanation as to why that machine was out the back rather than out the front with the others which were for sale?
ANo.
QDid he say to you any words to the effect that it might take them a day to get the machine ready for sale but something of the order of several days or three days before the safety mesh could be fitted?
ANo.
QWhen you were talking about the safety mesh did Mr Black say words to this effect to you: that it was illegal for him to sell you the uniloader if it did not have safety mesh?
ANo.”
Mr R F Thornton was called as part of the applicant’s case. In 1996, he was employed by the Department of Industrial Affairs as an occupational health, safety and welfare construction inspector. The work of that Department is now carried on by Workplace Services which is part of the Department of Administrative and Information Services. In his capacity as an inspector appointed pursuant to the provisions of the Occupational Health Safety and Welfare Act 1986 (SA), Mr Thornton investigated the circumstances of Mr Bethune’s accident. As part of that investigation, he interviewed and took statements from Mr Bethune as well as from Mr Phillips, Mr Black, Mr Fairburn and another employee of Case Adelaide, Mr Brown. Mr Thornton’s typed records of his interviews with Messrs Bethune, Black and Fairburn were tendered in evidence; the records of his interviews with Messrs Phillips and Brown were not.
Mr Bethune was interviewed by Mr Thornton on 24 October 1996, some two months after the accident and not long after Mr Bethune had been discharged from hospital. It was put to Mr Bethune that, when Mr Thornton interviewed him on 24 October 1996, Mr Thornton asked:
“When discussing the purchase of the Bobcat, did you make any mention to Mr Lindsay Black in connection with the safety mesh and seat belt to the operator’s cabin?”
and that Mr Bethune replied:
“No, but I did speak to the mechanic, Lindsay, who said to me that there’s no safety mesh to the operator’s cabin but you don’t have to have it unless you want it?
Mr White then asked Mr Bethune:
“QDo you recall that question and answer?
ANo, being that far back I don’t recall it, sorry.”
At this stage it became apparent that Mr Bethune was becoming confused. There were occasions throughout his cross-examination when he showed extreme irritability bordering on aggression – so much so that, at the suggestion of counsel, it was deemed appropriate to have a security officer present in Court. I intend to make every allowance for Mr Bethune because I accept his evidence that these fits of irrational behaviour and confusion are a direct result of his accident. An indication of his confusion is apparent from his answers which followed after he had clearly stated that he had asked Mr Black about the absence of the side screens. He was asked:
“QAt the time that you spoke to Mr Thornton, was it your belief that the subject of the safety mesh had not been mentioned by you when you were speaking to Mr Lindsay Black?
ANo, I don’t recall, I’m sorry. Can you just tell me a little bit of a different way? I am sorry, some things I just – I can’t get in. I just don’t understand.”
After Mr White put the question a second time to Mr Bethune, he replied:
“AWell, I’ve spoken to Lindsay. Obviously I’ve got mixed up, haven’t I, after I’ve come out of hospital, on who was Lindsay Black or who was Lindsay whoever – mechanic or whoever. That’s what I am trying to say.”
When Mr Bethune said that he could not remember a second interview with Mr Thornton at the office of his (Mr Bethune’s) solicitors on 23 July 1997, he volunteered:
“Can I just interrupt, just for a minute? The reason I am saying all that is, the medication – there’s a lot of things I do not know, I cannot recall, etc. It’s like saying I was in there – because my wife would have probably driven me in there anyway because nine out of ten times back then I was drugged to the eye balls. So things like that I probably won’t recall.”
Mr White put to Mr Bethune the following passage from Mr Thornton’s interview with Mr Bethune in the office of Mr Bethune’s solicitors:
Thornton“When I interviewed you on 24 October 1996, do you recall me asking the question, ‘Did you make any mention of the lack of safety mesh along the operator’s left and right sides of the operator’s cabin?’”
Bethune “To Case, yes.”
Thornton“And at that time you stated you didn’t make any mention of the lack of safety mesh to the cabin to Mr Lindsay Black.”
Bethune“That’s correct. I told Lindsay, the mechanic, about the safety mesh, and Lindsay Black was standing alongside me at the time.”
Mr White, having put that passage from Mr Thornton’s interview, then asked Mr Bethune whether he recalled it. Mr Bethune replied: “No.” Nevertheless, his reference to “ Lindsay the mechanic” in his interview on 23 July 1997 was consistent with what he told Mr Thornton on 24 October 1996 when he said that he spoke “to the mechanic, Lindsay”.
Mr Bethune conceded, in response to propositions put to him by Mr White, that the recollection that he then had of his conversation with Mr Black at Case Adelaide was “somewhat hazy”. However, he insisted that his memory was not hazy about the issue of the side screens. He denied that Mr Black had told him that the side screens had to be on the machine because they were a safety feature. Although Mr Bethune was uncertain of the identity of the man, he was prepared to agree that Mr Fairburn was probably the person who loaded the 1845 Uni-loader onto a trailer so that Mr Bethune could take it away. Mr Fairburn claimed in his evidence that, on that occasion, he had said to Mr Bethune that the side screens would have to be fitted – an allegation that was denied by Mr Bethune. That piece of Mr Fairburn’s evidence does not stand up to what he told Mr Thornton. When Mr Thornton interviewed Mr Fairburn on 15 November 1996 and asked him whether he could recall loading the 1845 onto a trailer for Mr Bethune, Mr Fairburn allegedly answered: “Personally no, not specifically”.
The details concerning the absence of the side screens and the conversations on that topic that Mr Fairburn allegedly had with Mr Bethune and Mr Phillips, as contained in his witness statement and his oral evidence, are to be compared with the paucity of information that he gave to Mr Thornton at his interview on 15 November 1996. The relevant extract from Mr Thornton’s record of interview, which was not challenged was:
Thornton“After the 1845 machine was traded in by Rossi Rubbish & Earthmovers, do you recall seeing any safety mesh along the left and right of operators cabin at all?”
Fairburn“No I don’t recall. Wait a minute, one of them we traded in didn’t have any mesh. That’s probably it.”
Thornton“But you can’t recall whether the 1845 machine purchased by Mr Bethune was the machine without the safety mesh?”
Fairburn “I can’t honestly.”
Thornton“Do you recall whether the machine purchased by Mr Bethune, was fitted with a complete seat belt?”
Fairburn “No.”
Mr Bethune’s confusion became apparent once more when Mr White pressed him about the proposition that Mr Fairburn had said words to the effect that Mr Bethune had to install the safety screens:
“Q It’s possible he did?
AWell, no, not really, because – I mean, I was never told anything about it. I don’t know. I can’t remember anything. That’s why I get flustered and I go crook.”
Despite Mr Bethune’s inconsistencies and uncertainties, I am not prepared, in light of what Mr Fairburn said to Mr Thornton, to accept Mr Fairburn’s evidence that he said to Mr Bethune words to the effect that Mr Bethune had to install the side screens.
Case Adelaide pleaded in subpar 10(4) of its amended defence that Mr Black had told Mr Bethune:
“… that the Case 1845 was not available for immediate sale as it required certain maintenance works to be completed on it and including the installation of mesh (“the mesh”) to the cabin area.”
Mr Black repeated that claim in his oral evidence. Case Adelaide pleaded that Mr Bethune was told by Mr Black that the respondent would need only a day to have the 1845 operating properly but that it would need three days for the side screens to be installed. The respondent then went on to plead that Mr Bethune had said that he wanted the 1845 “as soon as possible” and that he would attend “to installing the mesh himself”. In his reply, Mr Bethune denied those allegations. He said that there was no urgency about the time of delivery as he had yet to make arrangements for the finance for his purchase. He also claimed that he did not say that he would install the mesh himself. His evidence concerning his need for a replacement machine, as given in cross-examination was as follows:
“QAt the time that your Case 1818 broke down, did you have a lot of work on your hands?
AI had the job we were doing and probably a couple of others in the pipeline, because I used to dig for other landscapers.
QDid you want to have your 1818 repaired as a matter of urgency?
AIf it could’ve been. If it did it did; if it didn’t it didn’t.
QWas it the case that you could not afford for your 1818 to be out of action for any length of time?
AWell, I mean, we all like to keep the machines going but under those circumstances, if it had’ve been, well, we would have done it by hand – the same as we ended up finishing that job by hand.
QFinishing it off by hand slowed you down, I take it?
AI obviously employed more people to do it.
Q It cost you more money?
A Of course it has.”
The case for the respondent was that Mr Bethune was in urgent need of a replacement Uni-loader and that he had said that he would attend to the fixing of the safety screens himself. Mr Fairburn said in his witness statement that Mr Bethune “conveyed to me that he had pressing work commitments and needed to get back to work as soon as possible”. In his cross-examination, however, Mr Bethune denied ever having said anything to that effect and he denied hearing Mr Phillips, his friend, speak to Mr Black and say words to that effect.
Mr Bethune said that he did not recall telling anyone at Case Adelaide that he could not afford to be without the machine for more than a week. At that stage, the 1818 model was under finance and he had a need to continue earning income in order to meet his payments to the finance company. However, as he pointed out, he did have other jobs to do. For example, he had lawn mowing rounds which generated income; he did not rely only upon the Uni-loader to generate his income. Nevertheless, a few answers later, Mr Bethune agreed that he told “the mechanic”:
“I’m busy. I want to get it back as soon as we can …”
His reference to “the mechanic” was, probably, a reference to Mr Fairburn.
There were proceedings in the South Australian Industrial Court resulting from Mr Bethune’s accident. The full details of those proceedings were not, however, disclosed during the course of the trial. Nevertheless, it was put to Mr Bethune that he had been asked in the Industrial Court proceedings:
“QAnd you couldn’t afford to be without a machine for more than a week?”
to which it was said that he replied:
“A That’s right.”
In these proceedings Mr Bethune said in respect of that question and answer:
“No that wasn’t right.”
Mr Phillips, the witness for the applicant, who accompanied Mr Bethune when he went to Case Adelaide, knew that Mr Bethune “did have a lot of work on at that time”. Mr Phillips said that Mr Bethune had said to someone at Case Adelaide words to the effect that he needed to have the machine so that he could get on with his work and he needed to be earning money in order to meet financial commitments under his finance contract. That, however, is not the end of this matter, for there was evidence that, at a cost, Mr Bethune could have hired a replacement unit from the respondent whilst his 1818 was being repaired.
Despite his reluctance to make a concession, I am satisfied that Mr Bethune was concerned about the breakdown of his machine; it is quite obvious that he would have wanted it, or a replacement unit, as quickly as possible. However, in determining who said what about the installation of the side screens, I do not place any great weight on Mr Bethune being anxious to have the 1845 made available to him as quickly as possible. I say that because there was, in my opinion, as great a sense of urgency on the part of Mr Black to effect a sale of the 1845. He conceded in cross-examination that, at that time – in May 1996 – his company was in financial difficulties; it was experiencing difficulties with its cashflow. The sale of the 1845 would inject a very much needed $2,000 into the company’s bank account and Mr Bethune’s willingness to take immediate delivery of the Uni-loader meant a saving of about $400 in labour and materials to the respondent; $400 was Mr Black’s estimate of the likely costs of parts and labour to install the side screens.
It was common ground that Mr Black and Mr Bethune discussed the absence of the side screens on the 1845. The problem is to determine what was said. Did Mr Black, as he claimed, first inform Mr Bethune that the 1845 was not ready for sale and that it would take about three days to install the side screens? Did Mr Bethune respond by saying that he would take the machine in its existing state and assume the responsibility for fixing the screens? Mr Black’s evidence on that issue was consistent with what he told Mr Thornton. When Mr Thornton interviewed Mr Black on 25 November 1996, Mr Black told him that, when he discussed the sale of the 1845 with Mr Bethune, he said to Mr Bethune that the “side screens had yet to be made”. Mr Black told Mr Thornton that Mr Bethune replied: “I will make and fit them myself because I have to be working tomorrow”. On the other hand there was Mr Bethune’s evidence: did Mr Black, as Mr Bethune claimed, tell him that the 1845 was “standard”, meaning thereby that it came without screens?

In his witness statement, Mr Black said that, apart from the discussion in which Mr Bethune said that he would install the mesh to the sides of the cabin:
“… there were no other discussions between Bethune and myself about other safety features and there was no request by Bethune or his colleague to provide a safety operations manual”.
When pressed in cross-examination, Mr Black acknowledged that, in his discussions with Mr Bethune, he never said words to the effect: “You must not operate this machine until you install the mesh” but he insisted that he gave Mr Bethune “the warning in that the side screens must be fitted to the machine”.
Mr Bethune gained material support from Mr Phillips. Mr Phillips attended a Technical High School until Year 11. Although he does not have any formal qualifications, he regards himself as a competent mechanic; he is also an experienced welder. On the other hand, he recognised that Mr Bethune:
“… was not at all mechanically minded. If something went wrong with the 1818 Bobcat Paul would make a phone call to Case Adelaide for assistance. Sometimes, if something did happen, I would also have a look. I do not have any mechanical qualifications, I am just a backyard mechanic.”
He elsewhere described Mr Bethune as “mechanically naïve”. Mr Phillips, who was present with Mr Bethune when the 1818 Uni-loader broke down, was never employed by Mr Bethune, but on occasions he would help him with his work. The men were close friends at that time. They have, however, since drifted apart. There were two principal reasons for that: in the first place Mr Phillips found himself a girlfriend who at the time of his statement had become his fiancé and, secondly, Mr Bethune moved to a new residence in Two Wells. That was some time in January 1997 and Mr Phillips said:
“I have not really had any conversation with him since.”
Mr Phillips went with Mr Bethune to Case Adelaide on two occasions. On the first occasion it was to take the 1818 Uni-loader to be repaired after it had broken down. Mr Phillips could recall that Mr Bethune was told by someone at Case Adelaide that it would take about a month for the necessary parts to arrive in Adelaide. Mr Phillips also remembered that when he found out the likely length of the delay, Mr Bethune considered whether he should trade in the 1818 Uni-loader for a replacement machine. The machines in the front of the premises were too expensive but someone from Case Adelaide took Mr Bethune to the back of the premises and showed him the 1845 Uni-loader which Mr Phillips described in his witness statement as a model that “was a little bit cheaper and had just the basics”.
Mr Phillips said that he and Mr Bethune spoke to Mr Lindsay Black and that they also spoke to another man, whose surname he did not know, but whose Christian name was also Lindsay. Mr Black confirmed that there was an employee at that time called Lindsay Sawyer who was the Spare Parts Manager. He said that it was not likely that Mr Sawyer would have had any involvement in the negotiations with Mr Bethune. That may have been a reasonable assumption for Mr Black to make, but the fact remains that both Mr Bethune and Mr Phillips referred to a second man whose Christian name was “Lindsay”. Nothing, however, turns on that particular issue.
Mr Phillips said that he had a conversation about the side screens with Mr Black. He said:
“To the best of my recollection I asked him about the mesh on the sides, because I saw the bolt holes, and he said that he didn’t have any mesh to go on there.”
Mr Black denied that he had said that he did not have any mesh. Mr Phillips recalled that when he had that conversation with Mr Black about the mesh, he may have said that if he (Mr Black) had the mesh, he (Mr Phillips) could put it on. He considered, at the time, that it was simply a case of bolting the mesh to the ROPS frames. Mr Phillips said that he asked Mr Black if he had any mesh that could be fixed to the ROPS frame. When asked what reply Mr Black gave him, Mr Phillips said:
“From what I can remember, Lindsay had said that, that being the earlier model, that didn’t come out with the mesh.”
When Mr Phillips had this conversation with Mr Black, it was his recollection that Mr Bethune was then inside the cabin of the 1845 and out of hearing. Mr Phillips said that Mr Bethune was not present when he had any conversations about the mesh with either Mr Black or the second man. Mr Phillips never heard Mr Black say anything to Mr Bethune about the safety aspects of operating the machine or the lack of mesh. Mr Phillips confirmed that in the Industrial Court proceedings he had said that the 1845 unit “looked funny without the mesh on there”.
In re-examination Mr Phillips was further questioned about Mr Black’s comments concerning the availability or non-availability of safety mesh. Mr Phillips replied:
“All I can remember is that it was an old machine and it didn’t come out with it as a standard issue.”
In his statement, Mr Phillips said that he was sure that no-one at Case Adelaide told him, or told Mr Bethune in his presence, “not to use the machine unless the mesh was put on”. He also said that Case Adelaide did not offer to put the mesh on the 1845. He said that no-one at Case Adelaide told him that it would be dangerous to use the 1845 Uni-loader in its current condition. Mr Phillips addressed the use of the machine without mesh in his witness statement, saying:
“I didn’t think anything of using the machine without the mesh. We were never around anything that could have hurt us. There were normally no trees around. I just didn’t think of anything going through the sides.”
I would not be confident about relying on Mr Bethune’s evidence alone. The information that he gave Mr Thornton is at variance with what he has said in these proceedings. He volunteered, on more than one occasion whilst giving his evidence, that his memory is deficient. Furthermore, it was obvious to me that he easily became confused. I cannot accept for example, that Mr Black (or any one from Case Adelaide) would have said to him that it was “standard” for the machine to be sold without a seat belt and a manual.
The photographs of the 1845 that were tendered in evidence show that one half of the seat belt was clearly visible. It was not obscured by the operator’s seat. The anchor point was to the side of the seat. It is therefore highly improbable that Mr Black would have said that it was standard for the machine to have no seat belt when half of it was so clearly visible.
Despite some minor inconsistencies in his evidence, I accept Mr Phillips as a witness of truth. He gave his evidence slowly, deliberately and carefully. There were times when he delayed inordinately in giving answers to questions during his cross-examination. Initially, I was concerned that he was embarrassed by the questions, but it became apparent, quite quickly, that many of the questions were innocuous and that his delay in replying was an indication of the care and thought that he gave before answering the question. I am therefore satisfied that he raised, in conversation with Mr Black, the absence of the side screens and that Mr Black told him that “he didn’t have any mesh to go on there”. I accept Mr Phillips’ evidence when he said that Mr Black told that, because it was an earlier model, it did not “come out with mesh” and it did not “come out with it as a standard issue”. I am also satisfied, and I find, that neither Mr Black nor any other employee of Case Adelaide discussed the question of safety mesh with Mr Bethune in the presence of Mr Phillips. Finally, I accept Mr Phillips’ evidence that no one at Case Adelaide “told us not to use the machine unless the mesh was put on”.
I find that there was a conversation between Mr Bethune and Mr Black about the absence of side screens on the 1845. I decline, however, to accept in its entirety, Mr Bethune’s version of the conversation. Relying upon Mr Phillips, I am satisfied that Mr Black falsely told Mr Phillips that his company did not have any mesh in stock. That piece of evidence supports my further finding that Mr Black was anxious to complete the sale as quickly and as cheaply as possible so that his company could receive the $2,000 and avoid the expenditure of $400. Mr Bethune’s claim that Mr Black used the word “standard” was corroborated by Mr Phillips and although I do not think that Mr Black used that word with respect to the seat belt, he could have correctly used it with respect to the interlocking function and I find that he falsely used it in relation to the safety screens. Mr Phillips support for that critical piece of evidence is another reason for rejecting Mr Black’s version of the conversation. I do not believe that Mr Bethune said that he would fit the screens himself. He was not competent to do so and he knew that he was not competent. The most likely explanation is that Mr Black was content to rely on Mr Phillips’ comment that Mr Phillips had the ability to fix the screens to the ROPS frames. However, as is apparent from the history of the events, Mr Bethune showed no interest in having the screens fitted. He was quite content to operate the 1845 without them.
Mr Fairburn’s evidence was that he told Mr Phillips that “the 1845 required side screens to be made and installed”. He went on to say that Mr Phillips replied with words to the effect: “we will make those, it will save us money”. Even though I have decided to accept the evidence of Mr Phillips in preference to Mr Black and Mr Bethune, there is, to my mind, a distinct likelihood that such a conversation took place. It fits in with Mr Phillips’ abilities and Mr Bethune’s finances. (There was no evidence to the effect that Mr Black had told him that the respondent would meet the costs of $400 to fix the screens as part of the overall sale price.)
The truth of this matter lies in the realisation that, by the time this matter came to trial, the absence of the side screens had become a matter of great importance to all witnesses whereas, at the time of sale, it was no more than a matter of passing interest. It was the subject of discussion but not at the level of importance that Mr Bethune and Mr Black have described in their evidence.
In coming to these conclusions and making these findings I have not been able, as is apparent, to place great reliance on what Mr Bethune said in his evidence. For different reasons, I have had to treat Mr Black’s evidence with the utmost care because of his admission in these proceedings that he deliberately lied when giving his evidence about Mr Bethune’s accident in the Industrial Court proceedings. The respondent’s defence was filed on 21 September 1999. Paragraph 10.7 of that defence contained a positive assertion that the offer by Case Adelaide to sell the 1845 Uni-loader was accepted by Mr Bethune on the express undertaking that he would install the side screens to the cabin area “which undertaking was recorded as a term of the contract of sale on the Order Form Number 5114”. The entry on the Order Form (“the endorsement”), was as follows:
“NO SIDE MESH TO ROPS FRAME – CUSTOMER AGREES TO FIT HIS OWN.”
As to this, Mr Bethune, in his reply said:
“… the said Order Form No. 5114 prior to the male applicant signing it did not contain any reference to him installing the mesh;”
Mr Black’s witness statement, which was signed on 16 August 2000, did not contain an allegation in support of the presence of the endorsement on the Order Form even though a draft of his statement, as prepared by his solicitors, did contain a reference to the undertaking. When he was called upon to read and approve the draft, he confessed to his solicitors that his claim that there was a written undertaking on the Order Form was false. The respondent’s solicitors therefore wrote to the applicant’s solicitors, by letter dated 25 August 2000, in which they advised that if the matter proceeded to trial the respondent would not be pursuing the allegation in par 10.7 of their defence so far as it stated:
“… which undertaking was recorded as a term of the contract of sale on the Order Form Numbered 5114.”
No reason was, however, given for this material change to the defence. The withdrawal of that assertion was confirmed a month or so before the commencement of the trial by a further letter from the respondent’s solicitors dated 8 July 2002. Unfortunately, however, the offending words had been repeated in the respondent’s amended defence which had been filed on 21 May 2002. I was informed by counsel from the bar table that that was an oversight on the part of the respondent’s solicitors and I accept that advice.
By consent, Miss Nelson QC, counsel for the applicant, tendered a facsimile transmission from Case Adelaide to Esanda dated 24 May 1996. The transmission comprised a copy of the Order Form Number 5114 which had been issued by Case Adelaide in relation to the purchase by Mr Bethune of the 1845 Uni-loader. That copy did not have the endorsement on it which appeared in the copy of Order Number 5114 in the respondent’s Order Book.
Mr Black, after having been duly warned that he was not obliged to answer any questions, the answers to which might tend to incriminate him in the commission of a criminal offence, admitted that he had added the endorsement when it became apparent to him that legal proceedings might be instituted as a result of Mr Bethune’s accident. He confessed that he went to the Order Book and, finding that the original and two carbon copies were still in the book (even though normal practice would have required Case Adelaide to hand the original copy to the purchasing customer), he wrote on the original the words of the endorsement. In doing that, he either overlooked or did not care, that he had, at the time of Mr Bethune’s purchase, sent a copy of the order form to Esanda. Mr Black said that he made the false endorsement because he was worried that Mr Bethune’s accident might have adverse consequences for his company and because, as he claimed, it truly reflected the agreement that he had struck with Mr Bethune.
As I mentioned earlier, there was some sketchy evidence led about a prosecution of the respondent in the State Industrial Court. It was an agreed fact that the proceedings were commenced on 24 September 1997 but that they did not conclude until 17 March 1998. Save for one item of information which I will shortly mention, I do not know what charges were laid, nor do I know the outcome of that prosecution. What follows is a summary of the concessions that were extracted from Mr Black during the course of his cross-examination by Miss Nelson. Miss Nelson read out a count – presumably from the complaint and summons – which she identified as “Count 3”. She later read out the particulars that had been supplied by the prosecution in respect of that count. The count, according to Miss Nelson, was as follows:
“Failed to ensure so far as was reasonably practicable that adequate information about any conditions to ensure the safe use of the plant were supplied with the plant contrary to s 24(1) of the Occupational Health, Safety and Welfare Act 1986.”
Mr Black said: “I think I pleaded guilty to parts of it”. What he meant by that was that his company accepted some, but not all the particulars of the charge. The extent of the issues to which there was assent and dissent appears in the following extract from the transcript of Mr Black’s cross-examination:
“Q      These were the particulars alleged. Firstly:
‘The defendant failed to advise Mr Bethune of the dangers of operating the loader with the safety mesh or side screens not attached to the ROPS.’
Pausing there. Did you?
A        I did not plead guilty to that.
Q        Secondly:
The defendant failed to advise Mr Bethune of the dangers of operating the loader without a properly functioning seat belt?
AI did not agree to that.
Q        Thirdly:
‘The defendant failed to provide an operator’s manual to Mr Bethune for the Case 1845 Uni-loader?’
AI did plead guilty to that.
Q        Fourthly:
‘The defendant failed to ensure that the information on the warning/caution signs within the operator’s cabin was legible and/or that the said information was conveyed to Mr Bethune – namely, the warning sign on the right-hand side of the operator’s cabin headed, “Review operator’s manual before operating this machine” – was partially obscured?’
AI believe I pleaded guilty to that.
QI am sorry, I didn’t give you the other particular. ‘The warning sign on the right-hand side of the operator’s cabin relating to the ROPS and side screens was partially obscured.’ Did you plead guilty to that?
AYes, I did.”
Ms Nelson put to Mr Black and he agreed, that he or his advisers had made known that his company was prepared to plead guilty to Count 3 if the particulars were limited to the last three particulars. He said that his company would not plead guilty upon the basis of the first two items of the particulars. The prosecuting authorities would not accept the respondent’s proposal and, as a consequence, there was a “disputed facts hearing”. I do not know the outcome of that hearing but I do know that Mr Bethune was cross-examined in the Industrial Court upon the basis that he was wrong in saying that the endorsement was not present on the Order Form when he signed it. (I should make it clear that no fault is to be attributed to the respondent’s legal advisers because they were only acting on Mr Black’s instructions and he had not told them of his falsity.) Mr Black gave evidence in the Industrial Court in which he perpetuated the falsehood that was represented by the endorsement. In these proceedings, he claimed that he was uncomfortable when giving his evidence in the Industrial Court but he was forced to concede that he did nothing to rectify the situation until August 2000. That was when he was to sign his witness statement for the purpose of this litigation.
Mr Black’s willingness to lie on oath is not to be used in any question that deals with his company’s degree of culpability for Mr Bethune’s accident. It does, however, raise questions about his credibility in these proceedings. He presented himself as one who is now contrite and apologetic for his actions. That might be so but it was a long time coming and in light of the copy of the Order Form that was in Esanda’s possession, I am left wondering whether his contrition was genuine. These are the reasons why I have had difficulty in accepting all of Mr Black’s evidence in disputed areas.
In addition to the matters that have been set out thus far, Mr Bethune further alleged that the 1845 should have been fitted with a seat belt. It was not disputed that, at the time of sale, one of the seat belt straps was missing. Mr White asked Mr Bethune, in cross-examination, a series of questions about the absence of a seat belt on the 1845:
“Q Did you notice at any stage that there was no seat belt?
AI don’t know. I can’t remember now, I am sorry. You are going back six and a half years ago.
QYes. Is it the case that what you saw when you were there was one part of the seat belt only?
…
ANo.
…
QYes I am asking you now whether, today, you have any recollection at all of what you noticed about the seat belt when you first looked at the 1845?
AI can’t remember, I’m sorry.
QIt could be that you noticed that there was no seat belt altogether or, alternatively, you might have noticed that there was one part only of the seat belt, or it may be that you didn’t notice anything at all?
ANo, I don’t remember.”
At that stage of his cross-examination, Mr Bethune interrupted the next question to say:
“I’m sorry, but there’s a lot of things I can’t remember since the accident and …”
It transpired that it was Mr Bethune’s claim that, until the time of the accident, he did not consider that there was any seat belt in the machine at all. That passage of his evidence did not, however, accord with his written statement. At par 15.7 of his witness statement, Mr Bethune had stated that he had discovered half of the seat belt buried below the seat some weeks after he first bought the machine. When that statement was put to him in cross-examination, he answered by saying:
“Well, Mr Chris Hall found it. That’s the first we knew of it being there, because it was all underneath.”

That amounted to yet another contradiction. The applicant called Mr Christopher Trentan Hall, a consulting engineer, who had examined the 1845 Uni-loader subsequent to Mr Bethune’s accident. Mr Hall’s evidence was uncontentious. He noted the absence of side screens and the absence of an operational seat belt. He also spent time investigating and commenting upon some structural damage that the 1845 Uni-loader had sustained on some unspecified earlier occasion. However, and notwithstanding his pleadings to the contrary, the applicant informed the Court, through his counsel, that he no longer pursued an argument that the previous damage to the machine was, in any way, causative of the accident or his injuries. Any reference to that previous damage can, therefore, be put to one side.
Mr Bethune was asked in cross-examination whether he had told Mr Thornton, when he was interviewed on 24 October 1996, that the seat belt did not have a locking piece. He answered:
“I don’t know. I mean, I was only – I think I might have still been in hospital or just out when he came to see me.”
Mr White asked:
“QI suggest this: Mr Thornton asked you this question, ‘Was a means of restraint provided for the operator? By restraint I mean a bar or seat belt?’ To which you responded by saying, ‘No, the seat belt that is there has not got a locking piece.’ Do you recall that?
ANo, I don’t. I’m sorry.”
Mr Bethune denied that he was aware that the seat belt was incomplete when he first looked at the 1845 Uni-loader on 23 May 1996 at the premises of Case Adelaide; he also denied that he knew that the seat belt was incomplete before his accident which occurred on 9 August 1996. That denial can only mean that he never, at any time while he was operating the 1845, attempted to use a seat belt. If he had attempted to use it, he would have realised that only one of the two straps was anchored to the machine.
However, within a few questions Mr Bethune contradicted himself:
“QWe’ll have to see how that is consistent with what you told me a moment ago, Mr Bethune. Can I ask you just to reflect on --- ?
AI never – because I said, ‘There’s no seat belt there’.
QYes. You said that to Mr Black, hadn’t you?
A‘There’s no seat belt in it’?
QYes.
AYes.
QAnd you knew then – when you decided to buy it – that the machine did not have a seat belt?
AIt didn’t have one, no.”
Mr Bethune’s evidence progressed from telling Mr Thornton in October 1996 that there was no discussion about side screens or a seat belt with Mr Black to a positive assertion, when he completed his witness statement on 13 June 2000, that he had asked Mr Black about the absence of those features. But then, during the course of his oral evidence, he conceded that his memory was deficient and that it had suffered as a result of his accident. I believe that Mr Bethune has unwittingly and unconsciously engaged in a process of reconstruction, in the course of which he has convinced himself that he must have asked one or other of the Case employees about the absence of the side screens and the seat belt.
Recognising, as I do that Mr Bethune may have been unwittingly guilty of reconstruction, I have nevertheless concluded, on the balance of probability, that I should accept that part of Mr Bethune’s evidence in which he asserted that he was told by Mr Black that the condition or appearance of the 1845 Uni-loader was “standard”. That statement was false to the knowledge of Mr Black.
CAUSATION
I do not see how the absence of the seat belt was, in any way, causative of the injuries that Mr Bethune suffered. As the operator of a Uni-loader that had not been fitted with side screens, he found himself in a predicament that had been caused by the protrusion of the tree branch. He could have switched off the engine of the machine, alighted from the cabin, walked around the machine to the offending branch and then taken such action as was necessary to remove the branch from the cabin. He did not do that. Instead he stood up and proceeded manually to force the branch out of the cabin. In my opinion, he would have taken that action even if he had been seated and restrained by an operative seat belt; he would have disengaged the clasp of the seat belt, stood up and taken exactly the same action as he actually did take.
The manual is the next issue. I am also of the opinion that the failure by Case Adelaide to supply Mr Bethune with an operator’s manual for the 1845 Uni-loader was not, in any way, causative of the accident or the injuries that he suffered. He had previously had a copy of the 1818 manual; the two pieces of machinery were substantially the same, even allowing for the absence of the interlocking function in the 1845. The provision of a copy of the operator’s manual to Mr Bethune would not have prevented that dreadful accident from occurring.
There remains the question of the side screens. Quite clearly, in my opinion, it was the absence of a side mesh screen on the left hand side of the machine that was the “trigger” that led to the accident. If a screen had been present, there would have been no protrusion – Mr Bethune would not have had to take the action that he did take and there would have been no accident. Then again, if Mr Bethune had been an ordinary reasonable operator, he would not have lent out of the cabin and place his body over the horizontal line of the hydraulic arm. In the language of the law of tort, assuming always the existence of a duty of care – and a breach of that duty – he was, at the least, guilty of contributory negligence to a substantial degree.
I find that Mr Bethune had had the regular use of a Case Uni-loader from March 1996 until his accident on 9 August 1996. Initially, it was the smaller 1818 model but, as from 24 May 1996, it was the larger but older 1845 model. The 1818 model had, at the least, side screens, an appropriate seat belt and an interlocking function. Although the 1845 model was not designed to have the interlocking function, it was designed to have side screens and a seat belt. I find that Mr Bethune, by virtue of his earlier experience, knew, and if he did not know, then he ought to have known, that the 1845 should have had side screens and a seat belt. He purchased the 1845, well knowing that it neither had the side screens nor the seat belt and he did nothing to install those protective devices. He knew, and if he did not know, then he ought to have known, that if the 1845 had been fitted with side screens, dangerous objects, such as the branch of a tree, would not have protruded into the cabin. He knew, and if he did not know, then he ought to have known, that by leaning out of the cabin, he exposed his body to the horizontal line of the hydraulic arm. He knew, and if he did not know, then he ought to have known, that outward pressure to the lever on the left hand side - pushing it away from the body - activated the hydraulic arms causing them to rise.
Case Adelaide (through its agent and Managing Director, Mr Lindsay Black) knew, and if it did not know, it ought to have known, that the Case 1845 Uni-loader that Mr Bethune purchased should have been, but was not, equipped with (at least) side screens and a seat belt. Case Adelaide also knew, and if it did not know, it ought to have known, that it was dangerous for an operator to operate such a machine without the side screens and the seat belt. Furthermore, Case Adelaide knew, and if it did not know, it ought to have known, that it placed Mr Bethune at risk by selling to him a piece of machinery which did not contain those essential safety features. Finally, Case Adelaide knew, and if it did not know, it ought to have known, that it should have supplied Mr Bethune with a copy of the operators’ manual for the 1845 when it sold the machine to him. I have already concluded that, in the particular circumstances of this case, the absence of a seat belt and the manual was not causative of Mr Bethune’s accident, but I am satisfied that the absence of the side screens was a contributory cause.
Mr Bethune has alleged that the failure to supply the mesh, the seat belt and the safety manual represented the breach of a duty of care that Case Adelaide owed to him; he also alleged that the omissions amounted to the respondent having engaged in misleading or deceptive conduct in breach of s 52 of the TPA and s 56 of the Fair Trading Act 1987 (SA) (“the FTA”); that alleged breach was said to have occurred because Case Adelaide had held out, as part of the representations that had been made by Mr Black, that the Case 1845 Uni-loader was fit for use as a Uni-loader when it was not so fit because of those three omissions. In addition to his claim in tort and his claim under the TPA and the FTA, Mr Bethune also alleged breach of contract on the part of the respondent, alleging that the unit that was sold was not of merchantable quality – contrary to implied terms in the contract of sale: s 71 of the TPA and s 14 II of the Sale of Goods Act 1895 (SA). He further alleged that the unit was not fit for use as a Uni-loader, thereby breaching the provisions of s 14 I of the Sale of Goods Act.
MISLEADING OR DECEPTIVE CONDUCT
I turn first to consider the allegations that the respondent breached the provisions of the TPA and the FTA. Ms Nelson argued that the conduct of Mr Black should be treated as an admission of liability. As soon as he heard of the accident and discovered that it was a crush injury, he made the false entry in the Order Book because he realised that the accident was caused as a result of his company’s negligence and misrepresentation; he was aware, so it was submitted, that he had not said anything to Mr Bethune about the need to have side screens installed.
In par 10.2 of the statement of claim, Mr Bethune had alleged that Mr Black had made certain representations to him which representations had induced him to enter into the contract to purchase the 1845 Uni-loader. Those representations were said to include statements that the machine would be “a suitable vehicle for the use of the male applicant”, that the machine had “been serviced and had had done to it everything that was necessary” and an implied representation that the 1845 “was of a standard make and condition and in accordance with the manufacturer’s original specifications …”
I am satisfied that Mr Black did represent that the 1845 was a suitable vehicle for Mr Bethune and that it had been appropriately serviced. Even so, those representations were accurate; there was nothing false or misleading about them. The allegation that Mr Black represented that the 1845 was “of a standard make and condition” was proved to my satisfaction but I was not satisfied that Mr Bethune relied on it, nor do I believe that it induced him to enter into the contract to purchase the machine.
The pleading in par 22 of the statement of claim that the respondent had engaged in misleading or deceptive conduct was deficient in that it did not allege that the respondent had made any representation to Mr Bethune upon which he had relied and which had induced him to purchase the 1845. The allegations in par 22.1 of the statement of claim were to the effect that the conduct of the respondent that was misleading or deceptive was the sale of the machine in its present condition and the failure to provide any written instructions with respect to the operation of the machine. The paragraph was in the following terms:
“22The respondent engaged in misleading and deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) in that it -
22.1sold the CASE 1845 to the male applicant on the basis that it was fit for use as a uniloader when it was not so fit by reason of the fact that-
22.1.1it did not have a safety cage or wire mesh around the cabin;
22.1.2it did not have fitted to it either a proper and adjustable seat belt;
22.1.3it did not have any or any proper manual or written instructions as to its use;”
Paragraph 22.2 dealt with the absence of written material:
“22The respondent engaged in misleading and deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) in that it:
22.2when selling to the male applicant the CASE 1845 did not provide any written instructions, contained in any manual or otherwise-
22.2.1as to the need to stop the engine of the CASE 1845, before exiting the vehicle, either in whole or in part; or
22.2.2as to the need for the cabin of the vehicle to be fitted with a steel mesh at all times when being operated;
22.2.3as to the danger of the CASE 1845 being driven without such mesh being installed;
22.2.4as to the possible danger of the hydraulic arms of the CASE 1845 activating suddenly and moving upwards thereby striking or otherwise inflicting injury upon the body of anyone including the driver in the vicinity of such arms.”
The allegations in par 22.2 cannot be elevated to a plea of misleading or deceptive conduct. It was merely an allegation of a failure to provide written material. Such a failure might be a breach of a duty of care but it is not conduct – and even if it could be classified as conduct, it is not capable of being classified as misleading or deceptive conduct. Paragraphs 22.3 and 22.4 alleged a failure to disclose that the 1845 had been previously damaged and inappropriately repaired. Those claims were abandoned and need not be discussed. A pleading in parallel terms was made in relation to an alleged breach of s 56 of the FTA.
Most commonly, although not exclusively, misleading or deceptive conduct consists of misrepresentations: Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 at 93 per Lockhart J, where his Honour said:
“… but ultimately in each case it is necessary to examine the conduct, whether representational in character or not, and ask the question whether the impugned conduct of its nature constitutes misleading or deceptive conduct.”
The deficiency in the pleading par 22 became apparent to counsel for the applicant during the course of closing submissions. As a result, she sought and obtained leave to add an additional sub-par (5) to par 22. The inclusion of that new paragraph meant that the applicant was pleading in these terms:
“22The respondent engaged in misleading and deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) in that it -
22.5impliedly represented to the male applicant -
22.5.1That it was safe to use the Uniloader without safety mesh being fitted to the sides of the cabin.
22.5.2That it was safe to use the Uniloader without a properly fitted seat belt.”
That amendment did not, in my opinion, rectify the situation. Putting to one side the evidence of Mr Black and Mr Fairburn (which was to the effect that Mr Bethune said that he would fit the side screens) the evidence of Mr Bethune did not support the new allegations. Neither he nor Mr Phillips addressed the subject of safety as a representation. Mr Bethune said that Mr Black told him that the condition of the 1845 (without the side screens) was “standard”, whilst Mr Phillips’ evidence included the assertion that Mr Black told him that Case Adelaide did not have any mesh on hand to fix to the ROPS of the 1845. The evidence does not satisfy me that the conduct of the respondent induced Mr Bethune to purchase the 1845: Kabwand Pty Ltd v National Australia Bank Ltd (1989) 11 ATPR ¶40-950 at 50,378 (“Kabwand”). Ms Nelson submitted that it was not necessary for Mr Bethune to prove that the respondent’s conduct was the sole inducement upon which he relied in making his decision to purchase the 1845. It would be sufficient, she claimed, if the Court were to be satisfied that he was influenced by Mr Black’s misrepresentations into making his purchase; it would be sufficient for Mr Bethune to establish that the misrepresentations played some part – even a minor part – in contributing to the formation of the contract. The applicant’s difficulty lies in the fact that I have considered that there was no inducement. Even though he was falsely told that the appearance of the machine was standard, I am satisfied that he was more than willing to take the 1845 in its present condition. Mr Phillips’ evidence destroyed any question of reliance and inducement. Reliance was missing in this case. Nowhere in his evidence did Mr Bethune address the question of reliance. Nowhere did he say that one of the reasons why he purchased the machine was because he relied on what Mr Black or some other employee of Case Adelaide had said to him. In my opinion, Mr Bethune was prepared to purchase the 1845 Uni-loader, well knowing that it was not fitted with side screens.
BREACH OF CONTRACT
Mr Bethune alleged that Case Adelaide was in breach of its contract of sale and that it sold him a machine:
“26.1which was not of merchantable quality contrary to the term of the contract implied pursuant to s. 71 of the Trade Practices Act 1974 (Cth.) and/or s. 14 II of the Sale of Goods Act 1895 (S.A.);
26.2which was not fit for use as a uniloader in carrying out gene
26.3ral construction work, inter alia, in and about domestic premises contrary to s. 14 I of the Sale of Goods Act 1895 (S.A.).”
Subsection 71(1) of the TPA also deals with the issue of “merchantable quality”. It is in the following terms:
“Where a corporation supplies (otherwise than by way of sale by auction) goods to a consumer in the course of a business, there is an implied condition that the goods supplied under the contract for the supply of the goods are of merchantable quality, except that there is no such condition by virtue only of this section:
(a)as regards defects specifically drawn to the consumer’s attention before the contract is made; or
(b)if the consumer examines the goods before the contract is made, as regards defects which that examination ought to reveal.”
Even upon the premise that the absence of the side screens was a “defect”, subs 71(1) still cannot be used by Mr Bethune. On his own case, he was aware of the defect; he had asked about it before he signed the order form. In addition, he examined the machine before he decided to purchase it and his examination revealed the defect. Perhaps Mr Black did not orally draw to Mr Bethune’s attention the absence of the seat belt but his physical presentation of the 1845 would amount to specifically drawing the defect to the customer’s attention when the customer acknowledged his awareness of the defect.
The relevant provisions of the Sale of Goods Act are as follows:
“14. Subject to the provisions of this Act, and of any Statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:-
I.Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose …
IIWhere goods are brought [sic] by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality: Provided that if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed:
…”
Section 14 II can be disposed of summarily. The sale of the 1845 Uni-loader was not a sale of goods “by description” and Mr Bethune having examined the machine, his examination “ought to have revealed” the absence of the side screens (that is, the defect).

That leaves only s 14 I of the Sale of Goods Act to be considered. I am satisfied that Mr Bethune made known to Mr Black “the particular purpose for which” the Uni-loader was required, but the evidence did not satisfy me that Mr Bethune relied on his seller’s skill or judgment. Mr Bethune said that:
“I told Mr Black about the work I had been doing. I explained_that [sic] I wanted something for digging concrete as there was a lot of demand for that work. There was a great advantage for me to get a bigger machine.”
He also claimed that Mr Black said that:
“… the machine was so tough that it could eat through anything … I accepted these assurances.”
Whilst, arguably, these statements might suggest reliance, it would be unfair, having regard to Mr Bethune’s knowledge about the absence of the side screens, to imply a condition that is dependent upon the presence of such screens. Where a purchaser knows of the existence of a defect, an implied term can only operate in a way that takes account of the defect; a purchaser cannot complain if it transpires that the machine cannot be safely used in a manner that would be safe if the defect was not present. In other words the 1845 was reasonably fit for the purpose for which a Uni-loader without side screens might be used.
The decision of the Court of Appeal in Bartlett v Sidney Marcus Ltd [1965] 2 All ER 753 (“Bartlett”) supports the conclusion at which I have arrived. In that case the defendant had sold the plaintiff a used car after first disclosing that it had a faulty clutch. The plaintiff negotiated a lesser purchase price upon the basis that he would assume responsibility for fixing the clutch. It transpired that the cost of the remedial work was more than the parties had anticipated. The plaintiff therefore sued the defendant, relying upon implied terms as to fitness for purpose and merchantability. He failed. Lord Denning (with whom Danckwerts LJ agreed), said at 755:
“Applying those tests here, the car was far from perfect. It required a good deal of work to be done on it; but so do many secondhand cars. A buyer should realise that, when he buys a secondhand car, defects may appear sooner or later; and, in the absence of an express warranty, he has no redress. Even when he buys from a dealer the most that he can require is that it should be reasonably fit for the purpose of being driven along the road. This car came up to that requirement. The plaintiff drove the car away himself. It seemed to be running smoothly. He drove it for four weeks before he put it into the garage to have the clutch repaired. Then more work was necessary than he anticipated; but that does not mean that, at the time of the sale, it was not fit for use as a car. I do not think that, on the judge’s findings, there was any evidence of a breach of the implied conditions.”
Salmon LJ was of the same view. He said at 756:
“He knew how the clutch behaved on the road; all he discovered later was that the extent or the cause of the clutch’s misbehaviour was rather graver than had been anticipated and would cost more than estimated to put in order.”
The decision in Bartlett v Sidney Marcus Ltd was quoted with approval and followed by Pincus J in Atkinson v Hastings Deering (Queensland) Pty Ltd (1987) 71 ALR 93 at 98 (“Atkinson”). In that case his Honour qualified the literal words of the legislation by saying:
“It is my view that the applicant has to show, so far as the Sale of Goods Act is concerned, that the machine was not reasonably fit for the purpose for which it was bought, having regard to the fact that it was bought as a machine which had seen much service, and was therefore more likely to be subject to deficiency due to wear and tear and the like.”
It seems to me, with respect, that when a purchaser is aware of a defect, yet proceeds to purchase the defective goods, he either ceases to rely on the seller’s skill or judgment or, preferably, any reliance upon implied conditions must be assessed in light of the purchaser’s knowledge of the deficiency.
The decision of the House of Lords in Lambert (sub nom Lexmead (Basingstoke) Ltd) v Lewis [1982] AC 225 (“Lambert”) was made on facts that were materially different to the facts in this case, but the observations of Lord Diplock (with whom the other Law Lords agreed) offer some assistance in the resolution of the issues in this case. In Lambert a farmer bought a Land Rover from a dealer. The vehicle was equipped with a dual purpose towing hitch which the farmer needed so that he could couple his Land Rover to a cup attachment on his trailer. The hitch was defective at the time of purchase but the farmer did not know that. The farmer used the trailer attached to the Land Rover in his business. Subsequently, he discovered the defect but continued to use the towing hitch. At a time when the farmer’s employee was driving the Land Rover, the trailer became detached and careered across the road into the path of an oncoming vehicle. The driver of that vehicle and his son were killed. Other members of his family, who were injured, sued the farmer. The farmer brought third party proceedings against his vendor, alleging, under the United Kingdom Sale of Goods legislation, that they had supplied him with a towing hitch that was not fit for the purpose for which it had been supplied and that it was not of merchantable quality. The manufacturer of the towing hitch was also joined. The trial judge found the farmer negligent in that:
“… he continued to use this coupling over a period of months in a state in which it was plainly damaged without taking steps to have it repaired or even to ascertain whether or not it was safe to continue to use it in such condition.” (273)
The decision of the House of Lords, so far as it is relevant to these proceedings, was, first, that the implied warranties that are found in the Sale of Goods legislation related to goods at the time of delivery under the contract of sale in the state in which they were delivered. Secondly, there was also a continuing warranty that the goods would continue to be fit for their purpose for a reasonable time after delivery, so long as they remained in the same apparent state as that in which they were delivered, apart from fair wear and tear. However, once it became apparent to the owner that the towing hitch had become faulty and, consequently, was no longer in the same state as when it was delivered, there was no longer any warranty by the vendor of its continued safety upon which the owner was entitled to rely (see Lord Diplock at 276). The farmer’s action against the vendor therefore failed. Although the facts are quite different to the facts in these proceedings, Lambert is still authority for the proposition in contract that there is no implied condition as to fitness or merchantable quality upon which a purchaser can rely when he or she becomes aware of the defect and, having become so aware, continues to use the goods. That being the case, it is an easy step to hold that no implied condition as to fitness or merchantability can be considered in a vacuum. If the purchaser, at the time of purchase, was aware of a defect in the goods, that awareness cannot be put to one side: it will materially and adversely affect any attempt on the part of the purchaser to rely upon the provisions of the Sale of Goods Act. I am therefore of the opinion that, when a piece of machinery is sold and the purchaser well knows that it lacks a particular safety feature, there is no implied term that it can be used free of the risk that the presence of the safety feature would prevent.
NEGLIGENCE
The applicant alleged that Case Adelaide was negligent in that it sold Mr Bethune the 1845 Uni-loader without side screens. Mr White submitted that this plea could not be made out because the absence of the safety screens was known to Mr Bethune; it was not a latent defect. I do not agree. Mr Bethune’s knowledge may have exonerated the respondents from liability under the TPA and the FTA because of lack of reliance; it may also have absolved the respondent from breach of contract but Mr Bethune’s knowledge does not erode away the respondent’s duty of care that it owed to Mr Bethune.
Mr White relied heavily upon the advice of the Privy Council in Grant v Australian Knitting Mills Ltd [1936] AC 85 at 105 where their Lordships said:
“One further point may be noted. The principle of Donoghue’s case can only be applied where the defect is hidden and unknown to the consumer, otherwise the directness of cause and effect is absent: the man who consumes or uses a thing which he knows to be noxious cannot complain in respect of whatever mischief follows, because it follows from his own conscious volition in choosing to incur the risk of certainty or mischance.”
To attempt to apply that passage in the advice to Mr Bethune’s circumstances, would require me to make a finding that, on the day of his accident, Mr Bethune had a complete knowledge of the danger that awaited him. That I am not prepared to do. I acknowledge that such a day would have eventually arrived – but not a mere two months or so after his purchase (even after taking into consideration his earlier experience with the 1818 Uni-loader).
Another decision upon which Mr White relied was that of the New South Wales Court of Appeal in Daley v Gypsy Caravan Co Pty Ltd [1966] 2 NSWLR 22 (“Daley”). In that case an electrician was engaged to carry out some electrical repairs to a caravan that had been manufactured by the defendant. There was a malfunction and the plaintiff was injured. He sued the manufacturer to recover his losses. He failed in his action because he knew of the defect. The Court held at 27:
“The question at once arises whether a person who, with knowledge of the existence of some fault in the manufactured product with which type of fault he is qualified to deal, proceeds to investigate the produce to ascertain the precise cause of the fault and, in the course of so doing, sustains injury, is outside the range of persons to whom the potential duty of care is owed by the manufacturer or whether such a person is within range albeit confronted with the hazard that his claim for damages may be defeated by the application of the maxim volenti non fit injuria or defeated or reduced by the operation of his own contributory negligence …”
Daley was a case of a qualified tradesman who, with actual knowledge of the defect, proceeded to investigate the defect. It could not be said that Mr Bethune rose to that same level of competence or experience.
Subsection 24(1) of the Occupational Health, Safety and Welfare Act 1986 (SA), as in force at the time of the sale of the 1845 Uni-loader to Mr Bethune, provided as follows:
“A person who designs, manufactures, imports or supplies any plant for use at work shall –
(a)ensure so far as is reasonably practicable that the plant is designed and constructed so as to be safe -
(i)when properly used and maintained; and
(ii)when subjected to reasonably foreseeable forms of misuse; and
(b)ensure so far as is reasonably practicable that the plant is designed and constructed so that people who might use, clean or maintain the plant are, in doing so, safe from injury and risks to health; and
(c)take such steps to test or examine, or arrange for the testing or examination of, the plant as are reasonably necessary to ensure compliance with paragraphs (a) and (b); and
(d)ensure that the plant complies in all respects with prescribed requirements (if any) applicable to it; and
(e)ensure so far as is reasonably practicable that adequate information about any conditions necessary to ensure the safe installation, use and maintenance of the plant is supplied with the plant.”
Even if I were to accept Mr Black’s evidence in preference, in every respect, to the evidence of Mr Bethune and all the other witnesses, there was still, in my opinion, a clear breach by the respondent of the provisions of par 24(1)(b) in that the respondent supplied plant for use at work but failed to ensure, so far as was reasonably practicable, that the plant was constructed so that Mr Bethune might use the plant and, in doing so, be safe from injury and risks to health.
In their joint judgment in Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 at [27] Gleeson CJ, Gummow and Hayne JJ, when discussing par 24(1)(a) of the Occupational Health, Safety and Welfare Act, said that it:
“… does more than impose a duty for which the sanction is a fine imposed in a prosecution for breach. These provisions are designed to protect …”
I consider that those remarks have equal and like application to the provisions of par 24(1)(b). Gaudron J, in her dissenting judgment in Slivak v Lurgi (Australia) Pty Ltd at [49] pointed out that it is clear, from its long title, that the Act is intended “to provide for the health, safety and welfare of persons at work”. Her Honour noted that:
“As a general rule, legislation which imposes duties with respect to the safety of others is construed as conferring a right of civil action unless a contrary intention appears.”
Her Honour went on to say that the rule and its rationale were explained by Dixon J in O’Connor v S P Brady Ltd (1937) 56 CLR 464 at 478:
“In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognised by the general principles of the common law.”
The respondent’s failure to supply Mr Bethune with a manual for the 1845 was, additionally, a breach of par 24(1)(e) of the Occupational Health, Safety and Welfare Act but, as I have already said, I do not regard that as causative of the accident and it is for that reason that I will not stop to consider that provision.
The fact that the applicant (or his advisers) chose not to plead a breach of statutory duty does not mean the provisions of the statute are to be ignored. Those provisions are material, just as the provisions in the operator’s manual are material in making an evaluation of two critical questions: first, did the respondent owe Mr Bethune a duty of care and, secondly, if it did, what was the extent or standard of that duty? Mr Black’s statement that he said to Mr Bethune that it would be “illegal” to sell the 1845 without mesh is an admission against interest and constitutes evidence that he had knowledge about the safety provisions of the legislation. Although the applicant has not maintained, as a cause of action, a breach of statutory duty, his general allegation of negligence does not deny the Court the right to have regard to the provisions of the statute for the purpose of concluding that the respondent owed a duty of care to Mr Bethune and for the further purpose of concluding that it breached that duty.
The contents of the manuals for the 1818 and the 1845 models both exhibited the need to have side screens on each side of the operator’s cabin. Mr Black was aware of those provisions; he has had many years experience dealing with products of the Case Corporation – first, as an employee but more recently, as a franchisee. Although the contents of the manuals do not have specific legal force and can never be conclusive of an issue, their contents may be taken into account when determining whether a respondent has taken reasonable precautions. They fall into the same category as standards or guides: Chicco v The Corporation of the City of Woodville (1990) Aust Torts Reports ¶81–028; Maynard v Rover Mowers Ltd [2000] QCA 26. All the machines that his company had on display for sale in the front of the company’s premises were equipped with side screens. His own evidence was to the effect that he told Mr Bethune that the 1845 was not ready for sale because (inter alia) side screens had to be fitted to it. In other words, Mr Black’s evidence justifies a finding that it was common practice to sell such Uni-loaders with fitted side safety screens. The common law duty was for the respondent to use an appropriate level of care and skill and that, in my opinion, imposed on a retailer, such as the respondent, an obligation not to sell a machine, such as the 1845, in a condition that the retailer knew to be unsafe.
The relationship of purchaser and vendor, coupled with the relevant provisions of the Occupational Health, Safety and Welfare Act and the operator’s manual have led, in my opinion, to the existence of a common law duty of care that was owed by the respondent to Mr Bethune. The respondent’s action in selling the 1845 Uni-loader without the installation of the two side screens was a breach of that duty and Mr Bethune’s injury resulted, in part, from a breach of that duty.
Even though I am satisfied that Mr Bethune was aware of the contents of the operator’s manual for the 1818 Uni-loader and even though he well knew that his 1818 model had safety screens on both sides, there was no evidence to suggest that Mr Bethune was aware of the provisions of the Occupational Health, Safety and Welfare Act. In other words, he did not know that his retailer was under an obligation to refrain from selling the 1845 until side screens had been fitted. Furthermore, when his accident occurred in August 1996, he had only been using Uni-loaders since March of that year – a time span of about five months. That may have been a sufficient period of time within which to become accustomed to the fundamental method of operating the machine, but the evidence did not disclose the extent to which (if at all) Mr Bethune might have encountered abnormalities in his operation of the machine. Five months is a very short period of time within which to label an operator as a proficient (or, indeed an efficient) operator. This is not a case where the injured party would have proceeded with his purchase even if he had been told of the risks. I have rejected Mr Black’s evidence on that particular subject in preference to the evidence of Mr Phillips and (to a lesser extent) Mr Bethune. The sale of the 1845 without the side screens was a contributing cause of Mr Bethune’s accident. On the other hand, Mr Bethune’s reckless conduct in leaning out of the cabin over the horizontal line of the hydraulic arm, was also a contributing cause.
Ms Nelson would not accept that Mr Bethune’s conduct was foolish and contrary to common sense, as submitted by counsel for the respondent. If, however, the Court were to take the contrary view, then she submitted that, on a question of apportionment, I should favour Mr Bethune. Ms Nelson argued that, in the first place, there was a substantial difference between the respondent and Mr Bethune in terms of their knowledge of the machine and the safety precautions that were necessary for its operation. Secondly, she argued, “it would not be fair or reasonable to regard the applicant as the author of his own harm”. I believe that both these propositions have already been answered in these reasons. The difference between the parties is reflected by the findings that there was a duty of care that was owed by the respondent to the applicant and by the further finding that there had been a breach of that duty. As to fairness and reasonability, that has been answered by the acceptance that both parties were, in part, to blame for the accident.
CONTRIBUTORY NEGLIGENCE
The defence of contributory negligence in South Australia was initially replaced by the principle of apportionment as provided for in subs 27A(3) of the Wrongs Act 1936 (SA). Currently the subject is addressed by the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA). However, subs 27A(3) was in force at the time of Mr Bethune’s accident and is the provision that is relevant to his claim. There is to be an apportionment of damages in accordance with the degree of responsibility of the parties: cf March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 512 per Mason CJ. Having reached the conclusion that Case Adelaide was in breach of a duty of care which it owed to Mr Bethune, a finding of liability against the respondent becomes the consequence. The only question then remaining is apportionment, having regard to the applicant’s “share in the responsibility for the damage”: subs 27A(3) of the Wrongs Act; March v Stramare at 524 – 525 per Toohey J.

The view that I have taken on the issue of apportionment is that Mr Bethune’s responsibility increased with his increasing experience in the operation of the machine. And, as his degree of responsibility increased, so also did the responsibility of the respondent diminish. If the accident that actually occurred, had occurred on Mr Bethune’s first day of use, his degree of responsibility would be much less than if the accident had occurred twelve months after purchase. In that hypothetical twelve month period, Mr Bethune, in the course of using his 1845 machine, would have become more aware of the risks and dangers that were attendant upon his operation of the machine. Indeed, there would come a point of time when the respondent’s breach of its duty of care would be reduced to negligible proportions. That situation had not yet arisen in the present circumstances. Mr Bethune had only been using the machine for a little over two months and there was no evidence to suggest that anything in the nature of an untoward event had occurred during the course of his operations to warn him of the risks that he was running.
The issue of contributory negligence has to be approached on the footing that Case Adelaide had failed to discharge its obligations to take reasonable care, and that, in considering whether there was contributory negligence on the part of Mr Bethune, the circumstances and conditions in which he had to operate the 1845 Uni-loader have to be taken into account: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 531 (“Podrebersek”) per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ. The members of the court later said at 532-533:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”
Operating on these principles, one commences with an assessment of the respondent’s conduct. Mr Black falsely told Mr Bethune that the appearance of the Case 1845 Uni-loader was standard when he well knew that it was not. He knew that it should have been fitted with side screens. He made no inquiries about Mr Bethune’s knowledge or expertise and he was not entitled to assume, simply because Mr Bethune owned the 1818 Uni-loader, that he was possessed of the requisite degree of knowledge about the machine’s operational and safety features. In any event, the factor of Mr Bethune’s knowledge or lack of knowledge is only of marginal relevance because Mr Black knew, and if he did not know, he ought to have known, that his company was under a duty to fit the side screens before selling it. On the other hand, Mr Bethune was alert to the fact that side screens were a live issue. He asked about them but he was prepared to accept Mr Black’s false answer. I am satisfied that Mr Bethune was not seriously concerned about their absence and that finding is tantamount to a lack of care on his part. His lack of care was his thoughtless action in leaning out of the cabin. That lack of care and degree of culpability increased daily with his continued use of the machine. In my assessment Mr Bethune was 70 per cent to blame for his accident and his injuries.
As I have earlier intimated, the parties have informed the Court that they have agreed upon the quantification of Mr Bethune’s claim. It therefore remains for a judgment to be entered in his favour in an amount equal to 30 per cent of that quantification. I will also hear the parties on any question of interest and costs. For those purposes I will adjourn the proceedings sine die with liberty to any party bring the matter back on for hearing on seven days notice.
THE LIMITATIONS OF ACTIONS
After judgment had been reserved in this matter, counsel for the applicant applied to re-open Mr Bethune’s case and applied to amend the statement of claim by pleading breach of statutory duty as a fresh cause of action.
Section 35 of the Limitation of Actions Act 1936 (SA) is in the following terms:
“35. The following actions namely:
(a)actions founded upon any simple contract express or implied, or upon any award where the submission is not by speciality;
…
(c) actions founded on tort:
…
shall, save as otherwise provided in this Act, be commenced within six years next after the cause of action accrued and not after.
The question of personal injuries is, however, governed by s 36
“36.(1) All actions in which the damages claimed consist of or include damages in respect of personal injuries to any person, shall be commenced within three years next after the cause of action accrued but not after.
(2)In this section ‘personal injuries’ include any disease and any impairment of a person’s physical or mental condition.”
As this is a personal injury claim, the three-year statutory limit in s36 applies. Since the application to amend the statement of claim to include a claim for breach of a statutory duty was made in 2002, and the injury occurred in 1996, the applicant finds himself outside the statutory time-limit. The question then is whether it is open to the Court to extend the time in order to allow the claim for a breach of a statutory duty to be made.
Section 48 of the Limitation of Actions Act relevantly provides that:
“(1)Subject to this section, where an Act, regulation or by-law prescribes or limits the time for-
(a)     instituting an action;
(b)     doing an act, or taking any step in an action; or
(c)     …
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
…
(3)     This section does not –
(a)     apply to criminal proceedings; or
(b)empower a court to extend a limitation of time prescribed by this Act unless it is satisfied –
(i)that facts material to the plaintiff’s case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii)that the plaintiff’s failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of that case it is just to grant the extension of time.”
Prima facie, the factual matrix that the applicant would have to be aware of, in order to bring an action for breach of statutory duty, would be no different from that grounding a claim in negligence. In Mr Bethune’s case, the amendment sought by the applicant does not stem from the discovery of new facts that lead to a new cause of action. That much would seem to be clear, since the applicant has not led any new evidence. Rather, the application for an amendment seems to stem from the oversight of the applicant’s legal advisers, who omitted to include the cause of action for breach of statutory duty in the statement of claim.
Furthermore, the applicant cannot succeed in raising subpar 48(3)(b)(ii). The applicant has not argued that the respondent was responsible in some way for the applicant’s failure to plead breach of statutory duty at an earlier stage.
In Cubillo v Commonwealth(No 2) (2000) 103 FCR 11 (“Cubillo”), I had to consider the parallel provision in s 44 of the Limitation Act 1981 (NT) – s 44. I there said at [1311] that:
“The failure by an applicant to satisfy one of the preconditions in s44(3) of the Limitation Act [the parallel provision to s48(3) of the SA Act] means that the Court lacks power to grant an extension of time and the statutory bar will apply. As Maurice J explained in Braedon v Hynes (unreported, Supreme Court, NT, Maurice J, 24 July 1986), the precondition ‘is clearly an absolute pre-condition that must be met before there is any question of the Court having a discretion in the matter’ …”
I consider that what I then said applies to the facts of this case. On the facts here, s 48(3)(b) bars the applicant from amending the statement of claim to include the new cause of action. It would seem that in order to lift the “bar” imposed by subpar (3)(b)(i), the applicant would have to demonstrate that the facts necessary to establish a breach of statutory duty were not ascertained by the applicant until a period within the last 12 months. The facts relevant to a cause of action for breach of statutory duty would be those that establish that the respondent on one hand, engaged in conduct that breached the duty, and those that establish, on the other hand, whether the applicant suffered harm that was caused by the respondent’s breach of duty.
There is a residual discretionary power reserved to the court in applications of this nature, but it can only be activated if the applicant can qualify for consideration either under subpar 48(3)(b)(i) or 48 (3)(b)(ii). As I said in Cubillo at [1311]:
“…satisfaction of one of the preconditions does no more than empower the Court to grant such an extension and does not of itself require that time be extended. It is also necessary to establish as a separate matter ‘that in all the circumstances of the case, it is just to grant an extension of time’…”
Since the applicant has failed to get over the hurdles that are presented by subpars 48 (3) (b)(i) and (ii), the question of the exercise of the discretionary power does not arise. The application to amend the statement of claim is dismissed.

I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin.
Associate:
Dated: 28 November 2002

Counsel for the Applicant: Ms E F Nelson QC

Solicitor for the Applicant: Andersons

Counsel for the Respondent: Mr RC White QC with Mr AM Dnistriansky

Solicitor for the Respondent: Thomson Playford

Date of Hearing: 12 July – 19 July 2002

Date of Judgment: 28 November 2002

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 34 OF 1999

BETWEEN:	PAUL JOHN BETHUNE FIRST APPLICANT BERNADETTE LISA RUSSELL SECOND APPLICANT BROOKE CHLOE BETHUNE by her next friend BERNADETTE LISA RUSSELL THIRD APPLICANT CHASE PAUL BETHUNE by his next friend BERNADETTE LISA RUSSELL FOURTH APPLICANT
AND:	QCONN PTY LTD trading as CASE ADELAIDE (ACN 065 841 922) RESPONDENT
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	28 NOVEMBER 2002
WHERE MADE:	ADELAIDE

JUDGE:	O’LOUGHLIN J
DATE:	28 NOVEMBER 2002
PLACE:	ADELAIDE

Counsel for the Applicant:	Ms E F Nelson QC
Solicitor for the Applicant:	Andersons
Counsel for the Respondent:	Mr RC White QC with Mr AM Dnistriansky
Solicitor for the Respondent:	Thomson Playford
Date of Hearing:	12 July – 19 July 2002
Date of Judgment:	28 November 2002