Herning v GWS Machinery Pty Ltd

[2005] NSWCA 263

CITATION:	Herning v GWS Machinery Pty Ltd & Anor [2005] NSWCA 263
HEARING DATE(S):	03/05/05
JUDGMENT DATE:	15 August 2005
JUDGMENT OF:	Handley JA at 1; Beazley JA at 2; Basten JA at 7
DECISION:	(1) Allow the appeal in part and set aside the judgment of District Court of 10 March 2004; (2) In place of the judgment of the District Court, order - (a) judgment be entered for the plaintiff against the first defendant for 75% of his damages to be assessed; (b) judgment be entered for the second defendant against the plaintiff; (c) the plaintiff to pay the costs of the second defendant; (d) the first defendant to pay the costs of the plaintiff including costs payable by him to the second defendant from 15 December 2003; (3) Remit the matter to the District Court for the assessment of damages; (4) Order that the Appellant pay the costs of the Second Respondent in this Court; (5) Order that the First Respondent pay the Appellant's costs of the appeal

CATCHWORDS:	Negligence - failure to provide a safe system of work - failure to warn employee of risks of transporting heavy farm machinery - failure to instruct employee on course of action if load shifted during transport - contributory negligence
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
CASES CITED:	Thompson v Woolworths (Q,land) Pty Limited [2005] HCA 19 Harrison v Lau Nay Nominees Pty Ltd [2004] NSWCA 18 Bankstown Foundry Pty Ltd v Braistina (1985-86) 160 CLR 301 Joslyn v Berryman (2003) 214 CLR 552 Czatyrko v Edith Cowan University [2005] HCA 14 Waugh v Kipper (1986) 160 CLR 156 Gould v Vaggelas (1983-85) 157 CLR 215 Sanderson v Blyth Theatre Co [1903] 2 KB 533
PARTIES:	Scott Herning (Appellant) GWS Machinery Pty Ltd (First Respondent) Jarrett Implements Pty Ltd (Second Respondent)
FILE NUMBER(S):	CA 40237/04
COUNSEL:	S. Norton SC/M. Fraser (Appellant) L. King SC/S. Bliim (Respondent)
SOLICITORS:	Brydens Law Office (Appellant) Moray & Agnew (First Respondent) Abbott Tout (Second Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 13468/01
LOWER COURT JUDICIAL OFFICER:	Bishop DCJ

CA 40237/04
DC 13468/01

HANDLEY JA
BEAZLEY JA
BASTEN JA

15 August 2005

SCOTT HERNING v GWS MACHINERY PTY LTD & ANOR

This is an appeal from a decision of the District Court which held that neither GWS Machinery Pty Ltd (“the Employer”), nor Jarrett Implements Pty Ltd (“the Supplier”) were liable in negligence for damage suffered by Mr Herning (“the Appellant”).

The Appellant was a sales representative employed by the Employer. Part of the duties of the Appellant was to pick up and deliver heavy farm machinery. Late in the afternoon on the day in question, the Employer requested the Appellant to pick up a 200kg agricultural mower (the slasher) from the premises of the Supplier.

An employee of the Supplier used a small crane to lift the slasher onto the back of the Appellant’s truck, whereupon the Appellant used a strap to fasten the slasher to the truck. The slasher shifted in transit and the Appellant stopped and attempted to manually force the slasher back into position. In doing so the Appellant injured his back.

The issues for determination by the Court of Appeal included:

(i) whether the Employer breached its duty of care to the Appellant in failing to provide a safe system of work;

(ii) whether the Supplier breached its duty of care to the Appellant; and

(iii) whether any damages awarded to the Appellant should be reduced for contributory negligence.

Held as to (i):

By Basten JA (Handley and Beazley JJA agreeing):

1. It was reasonably foreseeable that the Appellant would seek to reposition the slasher in the circumstances in which he was placed.

2. The carriage of goods, such as slashers, which sit on skids rather than wheels, may be seen to involve specific kinds of risks and require specific activities on the party of those involved, particularly given the slasher was being carried on a tray top truck without sides and secured by a single strap.

3. The Employer breached its duty to ensure that the Appellant was fully aware of the risks involved in seeking to manipulate such machinery by hand and failed to give clear instructions as to what he should do if a load shifted during a journey.

Held as to (ii):

By Basten JA (Handley and Beazley JJA agreeing):

The Supplier was not negligent.

Held as to (iii):

By Basten JA (Handley JA agreeing):

1. The question of contributory negligence is an objective test and must be assessed in the context of a failure to give proper instructions and an adequate warning in relation to the foreseeable risk that a load might shift during a journey.

2. The Appellant should have been aware that he was in danger of placing undue stress on his back in seeking to move the slasher on the tray of the truck, without mechanical or other assistance.

3. It is just and equitable to reduce the damages by 25% having regard to the Appellant’s share in the responsibility for the injury.

By Beazley JA dissenting:

There was no contributory negligence. The Appellant had little, if any, alternative but to seek to right the load.

CA 40237/04
DC 13468/01

HANDLEY JA
BEAZLEY JA
BASTEN JA

15 August 2005

SCOTT HERNING v GWS MACHINERY PTY LTD & ANOR

Judgment

1 HANDLEY JA: I agree with Basten JA.

2 BEAZLEY JA: I agree with the reasons of Basten JA in relation to his finding that the first respondent breached his duty of care to the appellant and that the negligence was causative of the damage sustained by the appellant. I respectfully disagree however, with his Honour’s determination in respect of contributory negligence.

3 As Basten JA has pointed out, contributory negligence was pleaded on two bases: failing to heed instructions and failing to avail himself of assistance that was provided. As his Honour has also pointed out, neither of those particulars could have been upheld on the evidence – there were no relevant instructions and it was unlikely that there would have been any assistance available to him, given the time at which the incident occurred.

4 There was no evidence that the appellant knew that if he attempted to move the load it was likely that he would injure his back. Indeed, there was no cross-examination to that effect. Nor had he disobeyed any instruction in attempting to move the load. Although Basten JA has expressed that this was not an “agony of the moment” situation it was a case where the appellant really had little, if any alternative, but to seek to right the load. The slasher had actually “moved out past the side of the truck”. It was late on a Friday. Assistance was not, or was at least not likely to have been, available. If there were an alternative it would have been to leave the vehicle with its load on the side of the road. That could have been dangerous and presumably, for that reason, that was not suggested to the appellant as being a reasonable response to the predicament in which he found himself.

5 What then was the contributory negligence on the part of the appellant? In my opinion, in the circumstances here, there was none. This is not a case like Thompson v Woolworths (Q,land) Pty Limited [2005] HCA 19 where the appellant was an independent contractor, she had injured her back a few days previously – a matter she knew but which was not known to the respondent, and in the normal course she always had assistance but on this occasion she chose not to wait for assistance to arrive but decided to save time and move the heavy bins herself.

6 Accordingly, I would allow the appeal and not make any reduction for contributory negligence.

7 BASTEN JA: At approximately 4.30pm on 5 December 1997 the Appellant, Mr Herning, received a telephone call from his “boss” at the office of his employer, GWS Machinery Pty Ltd (“the First Respondent”) asking him to collect a slasher from the premises of Jarrett Implements Pty Ltd (“the Second Respondent”). He drove to the premises of the Second Respondent, where the slasher was loaded onto the back of the First Respondent’s truck by means of a tractor with a small crane. The slasher weighed approximately 200 kilograms. It was strapped to the back of the truck and the Appellant commenced the journey to his employer’s premises. During the journey the load shifted on the truck, causing the Appellant to stop and seek to reposition it manually. That effort caused him to suffer a significant injury to his lower back.

8 By statement of claim filed on 26 November 2001, the Appellant commenced proceedings for damages against both the present Respondents. The Appellant was unsuccessful, the District Court holding that there was no liability in negligence on the part of either Respondent. In this Court, the Appellant seeks to overturn both of those findings.

Facts

9 The only witness to the events of the day in question, called at the trial, was the Appellant. His evidence was subject to cross-examination, but was not contradicted by any independent evidence put forward by the Respondents. Of the Appellant, the trial judge said that he had “impressed me as a particularly straightforward and acceptable witness”.

10 The Appellant stated that he was employed as a “sales rep” for the Sydney and surrounding areas. Most of his work for his employer was “on-road sales and demonstrations”, selling farm and agricultural equipment and lawn mowers.

11 On the day in question, he had been visiting orchardists in the Hills area and was on his way back to the depot when he received the call asking him to collect the slasher from the Second Respondent’s premises. He agreed to do so. The request came at about 4.30pm by telephone, and his evidence was that staff at the depot finished work at about that time and normally left the premises by about 5.00pm. The Appellant gave evidence that the truck he was driving on that occasion was a small truck which he had driven approximately once per fortnight during his employment, which had commenced at some unspecified time during 1997.

12 The slasher having been loaded at the Second Respondent’s premises, the Appellant and an employee of the Second Respondent attached a single high tensile fabric strap across the slasher to hold it in place. The strap was tightened by way of a ratchet. There was only one strap available on the truck at the time.

13 Having loaded the truck, the Appellant then started the trip back to the depot. He had gone less than a kilometre when, whilst proceeding past a roundabout, he felt the load shift and stopped and to reposition it.

14 In order to move the load back into position on the tray of the truck, he said that he “grabbed the back edge of the slasher … with my hands just underneath the steel base … and just hoiked it over, tried to shift it over to the centre of the truck again”. He said that he made three attempts, moving it a matter of inches each time, and felt pain in his back on the second attempt. He was successful in centring the slasher on the tray of the truck and was able to re-tension the strap and complete the journey back to the depot.

Cause of shifting load

15 One question which arose in these circumstances was why the load shifted. There appear to have been three possible causes:

(a) the strap was not securely fastened;
(b) one strap was not sufficient to secure the load;
(c) the Appellant drove too fast around the roundabout.

It seems that the third possibility was but faintly put, if at all. The Appellant gave evidence as to driving at a reasonable speed and was not cross-examined to suggest that he had been going too fast. In any event, the trial judge implicitly rejected such a suggestion because he was unable to determine why the load had shifted.

16 As to the first possibility, the Second Respondent was joined, presumably in case there were a finding that the strap had not been securely fastened, an activity in which its employee may have played a role. However, there was really no evidence to support that as a cause of the load shifting, nor did the trial judge so find.

17 The other possibility was that one strap was insufficient to hold the slasher securely in place. There was evidence to support the conclusion that the Appellant was satisfied that one strap was sufficient. Thus, he was asked:

“Q. Now on this particular occasion out at Jarrett’s, you saw no problem or difficulty with loading the vehicle using the strap that – you say there was one strap on the truck? There wasn’t another strap on the truck?
A. No.
Q. Are you sure about that?
A. Yes.
Q. If that was the case, sir, you didn’t have any apprehension about affixing the slasher to the back of the truck using that strap, did you?
A. No.”

On the other hand, there was also evidence that two straps, or possibly a chain might have been preferable. Thus he was asked:

“Q. On past occasions you’d secured the load with one strap, had you, or did you always use two?
A. I prefer to use two, but you had – we had used one.
…
Q. … a chain, metal on metal, as opposed [to] cloth on metal, isn’t going to cause nearly the same – is going to have a much more significant effect, isn’t it?
A. But once the chain is tight it doesn’t move.
Q. I see?
A. Even when the strap is tight the machinery moves.
…
Yes, I just said to you, when the strap does go on, the machinery does still move.
Q. Well, if you ratchet it up tight enough it won’t move will it?
A. You can’t get it that tight that they won’t move with the strap.”

The trial judge did not make a finding that two straps would not have been preferable, but he did conclude:

“There is no evidence before the Court that had two straps been used this would have prevented the load shifting. There is indeed no evidence as to why the load shifted. … There is no evidence before the Court of loads secured by one strap only shifting previously.”

18 Because the evidence was at best equivocal, it is not possible to make a positive finding that a chain or a second strap would have prevented the load shifting. His Honour’s finding in that respect should be accepted. It follows that the Appellant cannot succeed in establishing failure to provide a safe system of work, based on inadequate equipment to secure the load.

Foreseeability of risk

19 The Appellant’s case must therefore be focused on the fact that the load shifted, with the result that he took action which resulted in the injury.

20 Although it may be true, as the trial judge noted, that there was no direct evidence of loads secured by one strap shifting in the manner that the present load shifted, there was unequivocal evidence that machinery secured by a strap moves. It was therefore necessary for the Court to determine whether it was reasonably foreseeable by the employer that a load of this kind might move sufficiently to require repositioning and whether it was foreseeable that a person in the position of the Appellant might attempt to reposition the load. His Honour made a finding which assumed the first limb and rejected the second. He held:

“Even if it was foreseeable from the first defendant’s point of view that a slasher of this size secured on this truck might move in transit, I consider it would not be foreseeable that the plaintiff would try to manhandle a 200 kilogram weight on his own.”

21 Although expressed in terms of an assumption, there was undoubtedly evidence to support the foreseeability of the load moving in transit, at least if it were secured by straps, rather than a chain. If his Honour did not explicitly make such a finding, it is nevertheless a finding which should be made.

22 Once that danger is foreseen, the second step seems inevitable: a diligent employee faced with a load which has shifted so as to render the rest of the journey dangerous, unless the load is repositioned, can readily be expected to do his best to rectify the situation with whatever equipment or assistance he has at hand. To say that it is not foreseeable that the Appellant would seek to shift the slasher in his own defies one’s knowledge of human experience, at least unless the Appellant was fully aware of the hazards involved, either from his own experience or because he had been warned.

23 In my view it was readily foreseeable that the Appellant would seek to reposition the slasher in the circumstances in which he was placed. Those circumstances included the fact that he would otherwise need to abandon the truck and the slasher at the roadside, some 45 minutes from his depot, shortly before 5.00pm on a Friday evening. The circumstances also include the fact that, whilst he was aware that the slasher weighed some 200 kilograms, he was not seeking to lift the full load of the slasher, but merely “hoik” one corner, so as to reposition it on the tray of the truck. The slasher stood on skids. He might be expected to assume that this would involve a lift and push, which were within his physical capabilities. In addition, there was no equipment on the truck which could assist him with task and it was at least unlikely that he would obtain any assistance from the depot. All of these factors would have been known to the employer. Accordingly, the risk of him seeking to reposition the slasher himself was reasonably foreseeable.

Breach of duty

24 These factors alone, of course, do not establish a breach of duty on the part of the employer. In relation to this aspect of the case, the trial judge concluded:

“I do not see any employer as having a duty to instruct an experienced employee not to try to move a 200 kilogram weight on his own.”

That conclusion appears to have been partly based upon an earlier finding to the following effect:

“At the time of the injury the plaintiff was reasonably experienced in his job, he had completed his apprenticeship some years back.”

25 In each case the reference to experience and training must be seen in its context. His training was as a mechanic and he had completed an apprenticeship in automotive engineering. There was no suggestion that either this training, or his experience as a sales representative, gave him any particular knowledge or experience of moving heavy weights, nor did the trial judge so find. He was cross-examined concerning the truck licence, which he had obtained whilst working for his then employer. He accepted that he had learned regulations and rules pertaining to truck driving and with respect to loading trucks. The purpose of the cross-examination appears to have been to demonstrate that he understood his responsibility as a driver for the safe loading of a truck and the proper means for securing loads. It was not suggested to him that he had either experience or training in relation to lifting, or the risks involved.

26 In the course of his Honour’s judgment, reference was made to the decision of this Court in Harrison v Lau Nay Nominees Pty Ltd [2004] NSWCA 18 for the proposition that the mere fact of an injury does not demonstrate a failure to provide a safe system of work, nor does it avoid the need to identify that which the employer should have done and did not do. That case involved an attempt by a truck driver to restack crates which had shifted during part of a journey, a manoeuvre which required him to lift a crate and to twist awkwardly in a confined space. In rejecting any finding of negligence on the part of his employer, Ipp JA, with whom McColl JA agreed stated at [27] and [28]:

“The Appellant was a man with many years of experience in transporting heavy goods. He knew that the crate he attempted to lift was very heavy. It weighed 164 kilograms and this weight was printed on the outside. It must have been obvious to him that any attempt on his part to lift the crate manually was fraught with risk. The trial judge rightly found that it was foolhardy of the Appellant to try to lift it.”

This was a factual finding made in the circumstances of the case and held to be sufficient to exonerate the party responsible for the crates being improperly stacked. However, their Honours’ conclusion (Meagher JA dissenting) also relied upon the fact that the danger only arose because the driver had been required to take on board a further load, of which that party had no knowledge: ibid at [24].

27 This was not a case in which it could be said that the Appellant was experienced in transporting heavy loads. That was, at best, an incidental part of his current work, in which he had been employed for less than a year. Furthermore, although he gave specific evidence as to the action required of him in repositioning the slasher, he was not cross-examined as to his consciousness of the risk involved, nor as to his understanding of the actual weight being lifted, nor to suggest that he knew his action was foolhardy or hazardous.

28 The carriage of goods, such as slashers, which sit on skids rather than wheels, may be seen to involve specific kinds of risks and require specific activities on the part of those involved. That was particularly so where machinery was being carried on a tray top truck without sides and secured by a single strap. In those circumstances, I would conclude that the First Respondent had a duty to ensure that his driver was fully aware of the risks involved in seeking to manipulate such machinery by hand and was given clear instructions as to what he should do, if a load shifted during a journey. He was cross-examined as to his ability to ask for a different truck or different equipment if he thought it necessary, but there was no suggestion that he was given any instruction directed to what he should do once a load required repositioning.

Causation

29 Where a warning is appropriate, there remains a question as to whether its absence had any causative effect in relation to the injury. Where the risks of injury should be well within the understanding of the employee, it may be inferred that an express warning will be unlikely to deter careless behaviour. On the other hand, it was not established in the present case that the risks were properly understood by the Appellant; what was required was some instruction as to what he should do in the circumstances which arose, where it was likely that his boss had stopped work for the day and that no assistance could reasonably be expected from the depot. This factor was not explored with the Appellant, but at the choice of the First Respondent. A question asked of the Appellant in chief as to why he had not rung the depot to seek assistance was objected to by the First Respondent and disallowed. The specific questions which followed concerned the time of day, the time at which work was likely to have stopped and the distance from the depot. The obvious inference from this material was that no assistance would have been available, an inference not challenged by the First Respondent.

30 While this was not an ‘agony of the moment’ type of case, it was a situation where the Appellant was left by his employer in a difficult situation, some distance from his depot, with no immediate means of assistance and with no instructions as to what was expected of him. It is at least likely that appropriate instructions would have resulted in the Appellant not seeking to rectify the situation in the hazardous manner which gave rise to the injury. Whilst there was little enough evidence relating to this issue, it was not, in my view, a case which could be dismissed on the basis of there being no duty to instruct the Appellant not to try to move the slasher on his own. Accordingly, in my view the judgment on liability must be set aside, with respect to the First Respondent, but not the Second Respondent, who played no part in that aspect of the matter.

Contributory negligence

31 If the trial judge’s finding in relation to liability, with respect to the First Respondent, is set aside, it is necessary to consider whether any damages should properly be diminished on account of contributory negligence. Contributory negligence was pleaded by the First Respondent in the Court below, but was not reached by his Honour as a result of his finding on liability. The particulars which are of direct relevance to the approach identified above, set out in pars 5(c) and (d) of the defence, were as follows:

“(c) Failing to heed instructions given to him as to the manner in which he should perform the work.
(d) Failing to avail himself of assistance provided.”

It may not be appropriate, given the manner in which the argument developed, to hold the First Respondent strictly to these particulars, but it is clear that, on the evidence, neither could be upheld. The only other specific particular of relevance related to the alleged failure to secure the slasher adequately on the tray of the truck. For reasons noted above, the evidence did not establish the cause of the slasher moving. However, any inadequacy in securing the slasher must have had some causal effect.

32 The question whether the damages should be reduced to an extent which is just and equitable having regard to the Claimant’s share in the responsibility for the damage, pursuant to s 9(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), must be assessed in the context of a failure to give proper instructions and an adequate warning in relation to the foreseeable risk that a load might shift during a journey. As stated in Bankstown Foundry Pty Ltd v Braistina (1985-86) 160 CLR 301 at 310 (Mason, Wilson and Dawson JJ), a case involving a failure to provide a safe system of work:

“A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgement, or to negligence rendering him responsible in part for the damage … .”

The objective nature of the test is confirmed in the recent judgment of McHugh J in Joslyn v Berryman (2003) 214 CLR 552 at [32]-[35].

33 It may be said of this case, as in Czatyrko v Edith Cowan University [2005] HCA 14 at [18]:

“The appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent … .”

34 On the other hand, this was not a case involving repetitive work in a factory environment. Rather, the Appellant was away from his employer’s depot, with a vehicle, undertaking a task within the general scope of his duties and in circumstances where the manner of performance was a matter left largely to him.

35 That he should have been aware that he was in danger of placing undue stress on his back in seeking to move the slasher on the tray of the truck, without mechanical or other assistance, follows from the fact that he was only able to move the machinery “a few inches” at a time and that it took three attempts to reposition it. (He felt the injury occur on the second attempt.)

36 In assessing the nature of the risk involved in this action, it would have been helpful to have some evidence of the weight actually lifted (assuming that not to be the full weight of the machinery), the height of the grip on the slasher above the tray of the truck and the extent to which a sideways movement was involved: c.f. Waugh v Kipper (1986) 160 CLR 156, 159-160. None of this material was before the trial judge, nor did he have any photographs which might have assisted in reconstructing the event. Whilst he accepted the evidence of the Appellant, there was no cross-examination of the Appellant as to his appreciation of the extent of the risk involved, or the availability of alternative courses of action. Nevertheless, because the test of contributory negligence depends on an objective assessment, these omissions are not fatal to a finding of want of reasonable care on the Appellant’s part in regard to his own safety.

37 On the basis of this material, I would consider it just and equitable to reduce the damages by 25%, having regard to the Appellant’s share in the responsibility for the injury.

Conclusions

38 It follows from these reasons that I would propose the following orders:

(1) Allow the appeal in part and set aside the judgment of District Court of 10 March 2004.

(2) In place of the judgment of the District Court, order -

(a) judgment be entered for the plaintiff against the first defendant for 75% of his damages to be assessed;
(b) judgment be entered for the second defendant against the plaintiff;
(c) the plaintiff to pay the costs of the second defendant;
(d) the first defendant to pay the costs of the plaintiff including costs payable by him to the second defendant from 15 December 2003.


(3) Remit the matter to the District Court for the assessment of damages.

(4) Order that the Appellant pay the costs of the Second Respondent in this Court.

(5) Order that the First Respondent pay the Appellant’s costs of the appeal.

39 No submissions were made in this Court as to the appropriate orders for costs. In the orders proposed above, with respect to the costs of the trial, a Bullock order has been made with the result that the first defendant is liable for the second defendant’s costs from 15 December 2003. The intended purpose of that order is to reflect the costs order made by the trial judge, after argument, “that the first defendant pay the second defendant’s costs of the re-hearing from 15 December 2003 on an ordinary basis”. The reason for this order was that there had been an arbitration, prior to the hearing in the District Court, at which the plaintiff had been successful in relation to the issue of liability, as against the first defendant, but unsuccessful as against the second defendant. The “re-hearing” sought by the plaintiff had been limited to the question of quantum. The first defendant had expanded the issues to cover liability. It was that conduct upon which the trial judge relied in ordering the first defendant to pay the second defendant’s costs from a particular date. That order was not challenged and is sought to be reflected in proposed order (2)(d) above.

40 That leaves open a question of the proper manner of disposing of the Second Respondent’s costs of the appeal. No submissions were addressed to this question either in writing, or on the argument of the appeal. Whether a Bullock order can be justified in relation to the appeal is an open question. The relevant principles to be applied may be sufficiently identified in the well-known passage in the judgment of Gibbs CJ in Gould v Vaggelas (1983-85) 157 CLR 215 at 229, where his Honour stated:

“In my respectful opinion, however, the mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant. Obviously a judge should make a Bullock order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant, and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff’s error or over-caution.”

As his Honour further noted, the test may more accurately be stated in the terms adopted in Sanderson v Blyth Theatre Co [1903] 2 KB 533 at 539, that such an order should properly be made only on the ground that “those costs have been reasonably and properly incurred by the plaintiff as between him and [the unsuccessful] defendant”: see Gould , 157 CLR at 229-230.

41 There may be some doubt as to whether the conduct of the First Respondent below, in putting liability in issue, would be sufficient to justify an order that it bear responsibility for the Second Respondent’s costs in this Court. Whilst there remained a possibility that the Second Respondent could be found to share liability, if any, for the injury to the Appellant, unless a substantial challenge to the findings of the trial judge to the contrary could be mounted, the continued joinder might be seen as a case of over-caution on the part of the Appellant, for which the First Respondent should not be required to pay.

42 In these circumstances, I would be minded to grant the parties an opportunity to make written submissions in relation to whether or not the First Respondent should be ordered to bear so much of the Second Respondent’s costs as are payable by the Appellant, within 14 days of the date of delivery of this judgment. To avoid any doubt, I note that the order presently proposed in relation to the costs of the appeal does not include a Bullock order.

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