Kato Works Co Ltd v Benz

[1999] WASCA 165

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE FULL COURT (WA)

CITATION:   KATO WORKS CO LTD -v- BENZ & ORS [1999] WASCA 165

CORAM:   MALCOLM CJ

PIDGEON J
WHITE J

HEARD:   23 & 24 AUGUST 1999

DELIVERED          :   8 SEPTEMBER 1999

FILE NO/S:   FUL 116 of 1998

BETWEEN:   KATO WORKS CO LTD

Appellant (Second Defendant/First Third Party)

AND

FRANZ ALFRED BENZ
First Respondent (Plaintiff)

PETERSVILLE INDUSTRIES LTD
Second Respondent (First Defendant)

BRAMBLES AUSTRALIA LTD
Third Respondent (Second Third Party)

Catchwords:

Negligence - Damages for personal injury - Liability of manufacturer and supplier of defective crane causing injury to operator - Manufacturer's manual not warning of risk of uncontrolled extension of the crane when below the horizontal - Manual misleading and inadequate - Manufacturer negligent

Foreseeability of injury if procedure in accordance with the manual not precisely followed, where risk not apparent and not indicated in manual

Whether injured operator guilty of contributory negligence - Whether distributor or employer of operator liable to contribute to the damages payable by manufacturer

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Second Defendant/First Third Party) :    Mr M J Neil QC & Mr P Utiger

First Respondent (Plaintiff)  :    Mr T Lampropoulos & Mr M E Herron

Second Respondent (First Defendant)               :    Mr K J Martin QC & Mr G R Hancy

Third Respondent (Second Third Party)            :    Mr R L Le Miere QC & Mr M L Greenland

Solicitors:

Appellant (Second Defendant/First Third Party) :    Jackson McDonald as agents for Hunt & Hunt

First Respondent (Plaintiff)  :    Gibson & Gibson

Second Respondent (First Defendant)               :    Phillips Fox

Third Respondent (Second Third Party)            :    Greenland Brooksby

Case(s) referred to in judgment(s):

Bankstown Foundry Pty Limited v Braistina (1985-86) 160 CLR 301

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18

O'Connorv Commissioner for Government Transport (1958) 100 CLR 225

Case(s) also cited:

Chappel v Hart (1998) 72 ALJR 1344

Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25

Koudis v State Transport Authority (1984) 154 CLR 672

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506

Naxakis v Western General Hospital (1999) 73 ALJR 782

Nicol v Allyacht Spas Pty Ltd (1987) 163 CLR 611

Pennington v Norris (1956) 96 CLR 10

Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529

Rae v The Broken Hill Pty Company Ltd (1957) 97 CLR 419

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431

Sinclair v William Arnott Pty Ltd (1963) 64 SR 88

Smith v Austin Lifts Ltd (1959) 1 WLR 100

State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3, (1999) ALJR 306

Swinton v China Mutual Steam Navigation Co (1951) 83 CLR 553

Turner v The State of South Australia (1982) 56 ALJR 839

Water Board v Moustakas (1988) 180 CLR 491

Wyong Shire Council v Shirt (1980) 146 CLR 40

1. MALCOLM CJ:  In my opinion this appeal should be dismissed for the reasons to be published by Pidgeon and White JJ.  I only wish to add some comments of my own.  I found that the very careful and detailed reasons of Healy DCJ were extremely convincing and demonstrated a very clear understanding of the issues involved.

2. The possibility that the telescopic boom of the crane could extend under its own weight when the boom was resting in a position below the horizontal is one that should have been reasonably foreseen by the appellant ("Kato").  The result was that the crane should have been fitted with an effective device to prevent such a movement of the boom.  The crane could have been made safe if a motion limiting device, such as a double overcentre valve, had been fitted.  Such a valve was readily available and could have been fitted at a cost of about $200.  A valve of this kind was in fact fitted to the crane elsewhere to prevent a downward movement.

3. The manual provided by Kato with the crane did not state that one purpose of the supplementary rope was to prevent extension of the boom when below the horizontal.  It was not stated that it was a safety device.  However, it was clear that there would have to be times when the auxiliary rope and supplementary rope were not fitted to the rooster sheave.  For example, this would occur when the main hook needed to be changed for a smaller hook.  It could also occur when the jib was being set up and the rope was slack while connecting the headache ball.  In both these cases neither rope would have provided any assistance to prevent the boom extending in an uncontrolled manner.

4. The expert evidence of Mr Bailey, which the learned trial Judge accepted, was that the ability of the boom to extend in an uncontrolled manner was entirely unacceptable because it was extremely dangerous both to the crane itself and to any persons around it.

5. One purpose of the system incorporating the auxiliary rope and the supplementary rope was to rig them both to the headache ball and the jib housing bracket to prevent uncontrolled swinging of the jib, when it disengaged from the latch.  This was also the purpose of the ropes fitted to earlier model Kato cranes which had been used by Brambles and Mr Benz, in particular.  In the case of the subject crane, the supplementary rope would only provide a safety mechanism to prevent uncontrolled extension of the boom when below the horizontal if it was tightened sufficiently to apply a restraining force.

6. There was no reference in Kato's manual for the crane to the supplementary rope being a safety feature, either because Kato negligently omitted it or negligently failed to appreciate the potential of the boom to extend uncontrolled when below the horizontal.  As the designer and manufacturer of the crane Kato should have reasonably foreseen the possibility.  If it did not it failed to take due care.  If it did, then it failed to warn of the danger of uncontrolled extension in the manual.

7. As Kato's own case was that the supplementary rope was a safety device to prevent uncontrolled extension when the boom was below horizontal, it follows that the risk of such extension and the danger to a person on or in the vicinity of the crane was clearly reasonably foreseeable by Kato.

8. In the light of the way the evidence unfolded the learned Judge was fully justified in his conclusion that:

   "… Kato should have foreseen that it was possible for the boom to extend under its own weight when it was depressed below the horizontal, and were aware of this possibility before the accident.  There was a simple means of obviating such extension by the fitting of a relatively inexpensive double overcentre valve as detailed by Bailey."

9. Further, the learned Judge rightly concluded that, in the circumstances, no liability attached to Banbury as distributor.  As his Honour said:

   "It had no part in the design and manufacture of the crane and no expertise in such areas.  It was the distributor of a crane which had a good reputation and which it could expect to have been designed and manufactured to obviate the possibility of uncontrolled extension of the boom.  The risk to anyone in the vicinity of such uncontrolled extension if the pins were removed was an obvious one and Banbury could reasonably expect the manufacturer to have provided for such eventuality."

10. I also agree with the reasons expressed by the learned Judge for rejecting Kato's third party claim against Brambles as Mr Benz's employer.  The principal allegations of negligence against Brambles were that it permitted Mr Benz to erect the jib without connecting the supplementary rope and setting the auxiliary and supplementary ropes,

and allowed him to remove the second pin before placing the first.  As his Honour said:

"An employer owes a duty to its employees to take reasonable care to ensure that it has in place safe working conditions and practices.  An employee [sic employer] can be found to be in breach of its duty of care to its employees when it fails to take care against a foreseeable risk of injury.  In this case there was no such breach.  It was not foreseeable that failing to have Benz rig the supplementary rope would expose him to the risk of injury.  That risk only arises because of the possibility of uncontrolled extension of the boom.  If Simms [Kato's expert] was not immediately aware that this rope was a safety device, it is not surprising that Brambles failed to advert its use in this way.  It did nothing wrong in permitting Benz to rig the supplementary rope in the way he did.

Brambles was not negligent in failing to warn Benz not to remove the second pin before placing the first pin in the clevis, as the risk of the jib falling only arises if the boom can extend uncontrolled.  Nothing in the manual would alert it to warn its employees to replace the pin as a safety measure.  If the boom was unable to retract [sic extend] uncontrolled, there was no need to place the pins one at a time."

1. PIDGEON J:  I agree with the reasons of White J and would add the following observations.

   (1)  Appellant's Liability

2. I consider that there was ample evidence on which the trial Judge could reach the view that the appellant was negligent and that the negligence was the cause of injury to Mr Benz.  There was a large crane hydraulically operated with a boom in four pieces which telescoped to extend or contract.  When it was placed below the horizontal, the boom extended by 800 mm.  This was spontaneous and independent of the operation of any of the controls.  The trial Judge found that this could have been prevented by the installation of a cheap and simple valve of a type already on the crane to stop contraction.  There is no appeal against this finding of fact.  It is not in issue that the appellant knew of the possibility of a spontaneous extension because it supplied a rope for the purpose of tying the boom in a way that would prevent any spontaneous extension.  It gave instructions how this rope was to be fitted, but the

instruction did not say that its purpose was to prevent the danger arising from the extension.  Although the instruction referred to other matters under the heading of "caution", it did not refer to the danger of extension or to the fact that the rope must be fitted to stop extension.  The submission on behalf of the appellant is that it would be expected that a crane operator would follow the instruction book and if this book had been complied with, then the accident would not have occurred.  (When the crane extended, which was carried under the boom when not in use, it came away from its cleaves, and fell on the Mr Benz).

1. I do not consider that this is any answer to causation or to the inference of negligence otherwise arising.  It would, in any event, be foreseeable that an operator may not strictly follow the manual, particularly when there is no reference to danger in not following it, and when it is possible to have the crane operating without rigging the rope in the way provided for in the manual.

Liability of the Employer to the Appellant

1. The appellant, as manufacturer of the crane, sought indemnity against Mr Benz's employer.  One of the bases of the claim is that it would be foreseeable that if the manual was not followed, danger would arise as one of the purposes of the procedures in the manual is to prevent dangers that are known to the manufacturer even if they are not readily appreciated by those operating the crane.  The crane was rigged in a way different from the manual which resulted in the rope provided by the manufacturer for the purposes of preventing movement in the boom being left over.  In my judgment it would not be foreseeable that a failure to tie the ropes in the way specified in the manual, together with the fact that a rope supplied was not used, would lead to a risk of injury and in particular would lead to the type of danger which occurred.  It is to be expected that the manual would warn against such danger.  I would not see this factor as leading either to contributory negligence on the part of Mr Benz, or to any breach of duty of care by his employer.

2. WHITE J:  The appellant appeals against the judgment of his Honour Judge Healy, delivered in the District Court on 14 July 1998, whereby his Honour ordered that:

   (1)the appellant, as second defendant, pay to the first respondent, as plaintiff, the sum of $1,160,000.00 inclusive of workers' compensation payments made

pursuant to the Workers' Compensation and Rehabilitation Act 1981;

(2)the appellant's action against the second respondent, as first defendant, be dismissed;

(3)that the appellant's claim, as second defendant, against the third respondent, as second third party, be dismissed;

(4)that the second respondent's action against the third respondent be dismissed;

(5)that the question of costs be adjourned for further hearing to 11 August 1998 at 10.30 am; and

(6)the costs of 14 July 1998 be reserved.

1. The appellant ("Kato") seeks an order, on appeal, that judgment should be entered dismissing the action by the first respondent ("Benz") against Kato, with costs.  In the alternative, Kato asks for an order that the second respondent ("Banbury") indemnify Kato against, or contribute to, Kato's liability to pay the judgment sum and costs to Benz and that Banbury pay Kato's costs of the action and of this appeal.  Further, in the alternative, Kato seeks an order in similar terms against the third respondent ("Brambles").

2. Benz has filed a notice of cross appeal/cross contention in which he seeks to have pars 1 and 2 of his Honour's order set aside and that, in lieu thereof, there be orders that:

   (1)Kato/Brambles, (first and second defendants) pay to Benz, plaintiff, the sum of $1,160,000.00 inclusive of workers' compensation payments made pursuant to the Workers' Compensation and Rehabilitation Act 1981;

   (2)Banbury (first defendant) do pay Benz's (plaintiff's) costs of the action to be taxed with liberty to apply with respect to special costs orders.

The Background to the Appeal

1. The trial at first instance took place on 18-22 and 25-29 November 1996 and 1-5 and 8-12 September 1997.  The action was for damages for personal injury and the quantum of damages was agreed between the parties.

2. Benz, who was the plaintiff in the trial, was born on 14 July 1955 and he was, at the material time, employed by Brambles as a crane driver.  On 13 August 1987, Benz was working on a building site at Yangebup, operating a Kato model NK-500E-III mobile truck crane ("the NK crane").  The NK crane was mounted on a mobile chassis, enabling it to be driven to and from working sites.  It was a new model with features that differed from earlier models.  It had a single hydraulic ram and the jib was mounted off-centre under the boom, and it was equipped with a computer system and with twin stage outriggers.

3. Kato is a manufacturer in Japan of large mobile cranes, and it entered into a distributorship agreement with Banbury.  In or about October 1985, Kato provided the NK crane to Banbury, which sold it to Brambles, a company with a substantial business involving cranes.  Benz operated the NK crane without incident until 13 August 1987.

4. The NK crane is equipped with a "fly jib", slung below and offset from the boom of the crane and attached to the boom by two metal pins inserted through holes in the boom and the fly jib.  The boom was extendible by telescopic segments and, at its far end, there were projections to which the ends or clevises of the fly jib could be fitted.

5. On 13 August 1987, Benz readied the NK crane for operation, standing partly beneath the boom as he removed the two pins.  The boom unexpectedly extended and the fly jib fell upon Benz, striking him and causing him very serious injuries.

Kato's case against Benz

1. Kato's grounds of appeal against Benz are:

   "1.The learned trial Judge erred in finding the Appellant negligent in that:

   (a)his Honour found that the instruction manual laid down a sequence of procedure including use of ropes which, if followed, would have prevented injury to the First Respondent;

   (b)his Honour found that the First Respondent failed to carry out the laid down sequence of procedure including use of ropes;

   (c)his Honour failed to give effect to these findings on the question of causation;

   (d)his Honour should have given effect to these findings on the question of causation and held that the sole cause of the First Respondent's injuries was his failure to carry out the laid down sequence including use of ropes;

   (e)his Honour failed to give effect to these findings when holding that the sole cause of the accident was a defect in the crane and manual;

   (f)his Honour, consistent with the said findings, ought to have held that the defect in the crane and manual was not the cause or a contributing cause of the accident.

   2.Alternatively, his Honour erred in failing to consider the question of whether it was reasonably foreseeable that the failure to carry out the laid down procedure including use of ropes could or would produce a risk of injury to the First Respondent.

   3.The learned trial Judge erred in not finding contributory negligence on the part of the First Respondent in that:

   (a)his Honour failed to give effect to his findings referred to in 1(a) and 1(b) above;

   (b)alternatively his Honour failed to consider the question of whether it was reasonably foreseeable that the failure to carry out the laid down sequence including use of ropes could or would produce a risk of injury to the First Respondent;

   (c)his Honour failed to give effect to his finding that the First Respondent had removed or attempted to remove the jib foot pins whilst standing wholly or partly beneath the fly jib."

Kato's submissions as to the evidence at trial

1. Kato submits, in summary, that the evidence showed that the NK crane was a very large piece of machinery, new to Australia, and that it should have been absolutely clear to Benz and to the representatives of Brambles and of Banbury that there was a potential for danger if the machine were not operated in accordance with the manual.  Commonsense and prudence would have required Benz either to find a way to operate the machine correctly or to obtain advice as to how to do so and to refrain from operating the crane until he had done so.  He should not, Kato submitted, have ignored, in effect, the sequence in the manual or the supplementary rope (whose purpose he was unable to ascertain), and he should not have used the method of readying the NK crane which applied to an older and different series of crane.

2. Kato submits that Benz was an experienced crane operator who had been employed by Brambles for a long time.  Brambles was in the crane business and held itself out to the public as being available to perform work involving cranes.  Banbury was the distributor of Kato cranes in Australia and had at least some knowledge of cranes generally and some role in servicing cranes.  The NK crane was the first of the NK type to arrive in Australia.  The previous model, known as the "450" model, was equipped with a fly jib not offset from the boom.  The method of rigging and flying the jib on the 450 model was known as the "Brambles method" and had been used for some time with that model.  In the Brambles method, a supplementary rope was not required.  The NK crane was equipped with a supplementary rope.  Kato submitted that the manual laid down a procedure and sequence to be followed, including the use of the supplementary rope, and that, if such procedure and sequence had been followed, the accident would not have occurred because, if the rope were properly applied, it acted as a safety device.  The manual did not, however, say that the rope was a safety device, and the expert witness called at the trial for Kato conceded that he had not realised that the rope acted as a safety device until he paid a visit to the Kato premises in Japan.  The apparent purpose of the supplementary rope was to prevent the swinging motion of the jib when released at one end.

The findings

1. Among the factual findings of the learned trial Judge were the following:

   (1)"It seems that Kato during their design process were unaware that the boom could extend uncontrolled if depressed below the horizontal.  No Kato engineer was called as to the design process or how or if the risk of the boom extending uncontrolled while below the horizontal had been considered when designing the hydraulic circuits." (AB51C-D)

   (2)"Bailey [an expert engineer called by Benz] requested that the boom be retracted so that the clevises engaged.  Within 30 seconds that section of the boom extended again at a steady rate.  This operation was repeated on about half a dozen occasions with the same result.  In evidence (transcript 583) he said:

   '…  I have to say that when I first saw it coming out I used words that I wouldn't use in this court but it indicated great surprise on my part that this could happen and I found it quite astounding.  I just didn't believe that a machine of this type could have this sort of problem.' " (AB52B-D)

   (3)"In my opinion the manual was defective in failing to highlight that the rigging of the supplementary rope was a device to stop uncontrolled extension of the boom.  It was something that was not obvious to a professional engineer when he read the manual, how much less obvious would it be to a crane operator?  It was one of those matters that should have been specifically dealt with in the manual."  (AB67A-B)

   (4)"As Mr Le Miere submitted, correctly in my opinion, if it be the case that Kato did not know and ought not to have known that there could be uncontrolled extension of the boom when below the horizontal, then one can understand why there was no reference in the manual to the rope being a safety feature.  If Kato intended it to be a safety device to prevent such uncontrolled extension that could only be on the basis that Kato knew that the boom might extend uncontrolled.  If Kato knew that then it failed to make any reference to that fact in the manual."  (AB71C-D)

   (5)"The design of the crane permitted uncontrolled extension of the boom when it was below the horizontal, and such movement certainly presented a foreseeable risk of injury to an operator standing in the vicinity of the jib.  The boom was designed to depress to minus 4 degrees even with the carrier level.  Apparently, Kato foresaw the possibility of uncontrolled extension and supplied the supplementary rope, but it failed to highlight that safety feature of such rope."  (AB76B)

   (6)"Kato and no one else is responsible for those deficiencies.  It is fair to find that it knew of the possibility of uncontrolled extension, otherwise why supply the supplementary rope?"  (AB78B-C)

   (7)"The undoubted cause of the accident was the uncontrolled extension of the boom without any warning that it might do so."  (AB81B)

   (8)"It was not possible for Benz to erect the jib in accordance with the manual, as the supplementary rope was too short, and an adequate alternative method was approved by Brambles and used by Benz."  (AB81B-C)

   (9)"If Simms [the expert] was not immediately aware that this rope was a safety device, it is not surprising that Brambles failed to advert [sic] its use in this way.  It did nothing wrong in permitting Benz to rig the supplementary rope in the way he did."  (AB82B-C)

The manual

1. The manual contained instructions for the "Jib Operation".  These instructions, which are not easy to follow, are supported by small illustrations in diagrammatic form, and these diagrams are far from clear.  His Honour mentioned (AB56) that the manual had come in for some criticism by Bailey, who found it not to be written in plain English, too brief and marked by ellipsis.

2. From time to time, there appear passages in the manual which are headed "CAUTION".  In connection with the instructions for the jib operation, immediately above the small diagram showing the use of the "supplementary rope", there appears such a passage which reads:

   "CAUTION:  At this time, be sure to pull out the rope retainer pin (K) for rooster sheave since it is used as a rope retainer pin for the jib afterward."

3. There is a FOREWORD to the manual that includes the following:

   "Before proceeding to operation, it is requested that the operator and his immediate superior fully understand the contents of this manual.  When the crane is operated safely based on a complete understanding of its characteristics, working efficiency will be significantly enhanced.  Should 'CAUTION' in this manual be ignored, a serious accident might occur."

4. There is no relevant passage marked "CAUTION" in relation to the fact that, when lowered below the horizontal, the boom can be subject to uncontrolled extension if the supplementary rope is not used.  In my opinion, the implication arising from the absence of such a passage, when considered in the light of the foreword, is that a failure to use the supplementary rope might result in the working efficiency of the crane not being enhanced.  It is not the implication that a serious accident might occur in such event.  To that extent, the manual may be thought to have been dangerously misleading.  The learned trial Judge has pointed out the failure of the manual to warn in express terms of the fact that an uncontrolled extension of the boom could occur when lowered below the horizontal.  In fact, the boom was so designed as to enable it to be lowered to the extent of 4 degrees below the horizontal - presumably to enable it to be reached by a man standing on the ground.

5. The learned trial Judge held that there were design defects in the crane.  His Honour said:

   "The main boom can be extended upwards at an angle of about 81 degrees and lowered to minus 4 degrees when the main hydraulic ram was retracted to its stops.  This was a design feature of the crane.  Hydraulic rams positioned on either side of the crane can be used to alter its angle of inclination.  By using these rams the crane could be tilted so that the boom was depressed to about minus 7 degrees.  …  (AB20-21)

   At an early stage of the trial the parties thought that there would be need to make findings as to whether or not the boom could extend under its own weight when lowered below the horizontal.  I understand the expert consulted by Banbury, Miocevich, and by Kato, Simms, were initially of the view that it could not.  Bailey, however, was of the opinion that it could and gave theoretical reasons why this was so.  By the end of the trial all experts were agreed that in certain circumstances it could. All agreed that there was an hydraulic extension force.  …  (AB51)

   Bailey was asked for his opinion as to the desirability of a boom being able to extend uncontrolled by an operator.  Bailey said that in his opinion that was entirely unacceptable, as any uncontrolled movement of a crane is extremely dangerous both to the machine and to any personnel around it.  I accept his opinion as to that.

   He was asked whether there was any means of preventing uncontrolled extension.  He said that could be achieved by a suitably designed overcentre valve.  As a designer of hydraulic systems he said he would automatically install an overcentre valve on the other side of the piston so that if the boom goes below the horizontal any gravitational effect can be braked by the valve acting on the other side of the piston.  The current cost of a suitable valve was between $150.00 and $200.00.  …  I accept that such a valve would prevent boom creep and I accept his evidence that it was not unknown for such a valve to be fitted.  (AB54-55)

   The design of the crane permitted uncontrolled extension of the boom when it was below the horizontal, and such movement certainly presented a foreseeable risk of injury to an operator standing in the vicinity of the jib.  The boom was designed to depress to minus 4 degrees even with the carrier level.  Apparently Kato foresaw the possibility of uncontrolled extension and supplied the supplementary rope, but it failed to highlight the safety feature of such rope.  (AB76)

   Kato was the designer and manufacturer of the crane.  It knew and certainly had the means of knowing that if below the horizontal the boom could extend uncontrolled under its own weight.  …  As I have found above, the crane was deficient in its design and the manual was deficient in its contents.  …  (AB78)"

6. In the course of argument, senior counsel for the appellant submitted that the manual contained sufficient warning of danger in the following passage:

   "(AB182)  Although this machine is easy to operate, a slight carelessness might lead to a serious accident.  So proceed to operations exactly step by step."

7. In addition, senior counsel for the appellant pointed to the evidence of several witnesses that the fundamental rule in relation to the operation of such machinery is to follow the instructions in the manual.

8. In relation to the latter point, his Honour said (AB81):

   "It was not possible for Benz to erect the jib in accordance with the manual, as the supplementary rope was too short, and an adequate alternative method was approved by Brambles and used by Benz."

9. I understand the reference to "adequate" to mean "adequate for the apparent purpose to be served by the supplementary rope, namely to prevent undue movement of the jib".

10. In my opinion, the appellant has not demonstrated that the learned trial Judge erred in finding that the appellant was negligent and that its negligence was the cause of the injuries sustained by the plaintiff.  The defective design concealed the danger of the uncontrolled extension of the boom when lowered below the horizontal, and the manual failed to give any or any adequate warning of that danger.

11. I would not uphold the first ground of appeal.

The second ground of appeal

1. In respect of the second ground of appeal, his Honour's findings demonstrate that his Honour was satisfied that, in the absence of knowledge of the "astounding" fact that below the horizontal there was a danger of an uncontrolled extension of the boom, such a danger was not foreseeable by Benz, or by Brambles or Banbury.  It is apparent, therefore, that his Honour did indeed consider the question whether it was reasonably foreseeable that the failure to carry out the laid down procedure, including use of ropes, could or would produce a risk of injury to Benz.  His Honour found that it was not, and I am not persuaded that his Honour erred therein.  There was nothing in the design of the crane or in the manual which might alert an operator to the danger of such uncontrolled extension of the boom.

2. I have set out above the extract from his Honour's judgment at AB51 in which reference is made to the views originally expressed by the experts, Miocevich (consulted by Banbury) and Simms (consulted by Kato), that the boom could not extend under its own weight when lowered below the horizontal, albeit by the end of the trial they were agreed that in certain circumstances it could.  If that was the initial opinion of expert engineers, it is not surprising that none of Benz, Banbury or Brambles foresaw the risk of the uncontrolled extension of the boom.

3. I am not persuaded that his Honour was in error in concluding that the risk of injury resulting from the uncontrolled extension of the boom was not foreseeable.  Nor did the evidence show that it was foreseeable that a failure to carry out the instructions in the manual might result in the risk of injury, more particularly in the light of the absence from the manual of any indication (or "CAUTION") that any such danger might result therefrom.

4. I would not uphold the second ground of appeal.

The third ground of appeal

1. As to the third ground of appeal, neither Benz nor his superior at Brambles, Mr John Alexander, could understand the references to the rope in the manual and also thought that the rope was too short for its apparent purpose.

2. His Honour found (AB79) that:

   "In doing what he did on this day Benz was not being careless or doing something which he was aware was dangerous.  He had no need to take risks or to adopt a procedure which was unsafe because of pressure of time or for any other reason.  He did not know and could not reasonably be expected to know of the danger of uncontrolled boom extension when it was below the horizontal.

   In those circumstances I am unable to find any contributory negligence under this particular on Benz's part."

3. In relation to the matters raised in the first ground of appeal, his Honour held that the manual was defective - I have set out the relevant finding in the third item above.  In the light of that fact, the contention in this ground of appeal is not, in my opinion, sufficient to establish a basis for setting aside his Honour's judgment.  The manual did not (as it should have done) make it clear that a failure to carry out the sequence described in the manual (which his Honour found could not, in any event, be done) could result in the uncontrolled extension of the boom, with the possibility of resultant injury.  It failed to warn of the potential danger and to state that the supplementary rope was a safety device.  The fact that in the circumstances the boom would extend uncontrollably was "quite astounding" to the expert engineer, Mr Bailey.

4. His Honour, having mentioned that Kato was not relying on some of the pleaded particulars of contributory negligence but principally on the fact that Benz did not follow the manual to set the crane level prior to operation, said (AB79):

   "In my opinion there was no contribution by Benz to his injuries and there was no negligence in his conduct on the day of the accident.  Prior to this day he had not been aware that the boom could extend uncontrolled.  He had no reason to suspect that the jib of the crane when not under load would collapse without warning.  He proceeded to rig the crane in the way he had on numerous prior occasions and in accordance with his employer's instructions and knowledge.  The method he used this day was the same as he had used without any comment being passed by DOHSW inspectors or Banbury representatives.  That knowledge and instruction did not extend to knowledge and instruction that the rigging of the supplementary rope was a safety feature to prevent uncontrolled extension of the boom.

   Benz levelled the crane before attempting to remove the 20 tonne hook.  Thus the crane was levelled before he attempted to erect the jib.  He retracted the boom so that the clevises were engaged in the stub shafts.

   Nor was he at fault in failing to place the pin in the clevis before he proceeded to remove the other pin.  Such a procedure may have prevented the clevises from disengaging from the stub shafts, but was unnecessary unless he knew that the boom could extend uncontrolled, and he had no such knowledge.

   In doing what he did on this day Benz was not being careless or doing something which he was aware was dangerous.  He had no need to take risks or to adopt a procedure which was unsafe because of pressure of time or for any other reason.  He did not know and could not reasonably be expected to know the danger of uncontrolled boom extension when it was below the horizontal.

   In those circumstances I am unable to find any contributory negligence under this particular on Benz's part."

5. In my opinion, his Honour's conclusions were entirely correct and, accordingly, I would not uphold the third ground of appeal.

6. For the aforegoing reasons, I would dismiss the appeal against the judgment in favour of Benz.

Kato's case against Banbury

1. The fourth ground of appeal is:

   "4.The learned trial Judge erred in failing to find the Second Respondent negligent and thereby liable to contribute to and/or indemnify the Appellant in that:

   (a)his Honour failed to give effect to his findings referred to in 1(a) and (b) above;

   (b)his Honour failed to find that it was reasonably foreseeable that the failure to carry out the laid down sequence including use of ropes could or would produce a risk of injury to the First Respondent;

   (c)alternatively his Honour erred in failing to consider the question of whether it was reasonably foreseeable that the failure to carry out the laid down sequence including use of ropes could or would produce a risk of injury to the First Respondent;

   (d)his Honour failed to find that the Second Respondent owed a duty of care to the First Respondent;

   (e)his Honour failed to find that the Second Respondent knew or ought to have known that the First Respondent proposed to operate the crane contrary to the laid down sequence including use of ropes and that the Second Respondent failed to prevent the First Respondent from so operating the crane;

   (f)his Honour failed to find that the Second Respondent had failed to ensure that the First Respondent carried out the laid down sequence including use of ropes."

2. The fourth ground of appeal relates to the claim by Kato against Banbury.  This claim was raised by way of a belated notice of contribution dated 26 February 1997 and was based on the allegation that "the incident out of which the plaintiff's claim arises was caused by or contributed to by" Banbury's negligence.  The notice contained no particulars.  The appellant's case appears from the fourth ground of appeal.

3. I have dealt with the issue of forseeability in relation to the second ground of appeal above, and shall not repeat what I have said there.

4. In relation to the question whether Banbury owed a duty of care to Benz, he gave the following evidence:

   "And when you got there what happened?---I just walked around the back and I tried to find some people there because it was the first thing in the morning.  I found two men there and I explained that I was from Brambles and I'm here for the new Kato, and they said, 'Oh yeah, right, okay,' and then I said, 'Well, someone is supposed to show me how to operate this thing, I mean, a 500E-III.'  So one of them said, 'Yeah.  Yeah, I'll show you,' so he proceeded to show me the top deck of the crane and all he showed me was how to switch the computer on and off, a couple of little lights where the outriggers - when they come out the little lights show how they go out, and from there we went to see PTO, which is the power take off, to show how to engage the hydraulic drive and that was it.

   To your knowledge was there any other similar machine to the 500E-III in Western Australia at that stage?---No, I believe it was the first one of its kind.

   Was there any further discussion at that stage with those people at     ?---At Banburys?

   Yes?---No.  All I knew that from there I had to take it around to Brambles (sic) heavy haulage yard where the DLI wanted to inspect the machine and I would have to set up there where all the counter weights are to do all the tests.

   Any discussion about any manual at that time?---It wasn't until I got into the yard there and I realised there was so many differences and that, so I asked them if there was a manual and they said no, so I haven't got a manual as yet.

   All right.  So when it came to operating the crane for the DLI inspector     ?---Yes.

   … what happened?---Well, as I was saying earlier, there's a lot of very similarities with the Kato cranes.  They're all basically the same.  This one just had an extra lever for the auxiliary wire.  It had the same clutches and all the rest.  The computer was different.  The fly jib was offset and a few other - and twin stage outriggers which was different, and that's about it.  So I went from there and I just waited for the DLI's instruction, what he wanted me to do with the machine.

   ….

   All right.  So he directed you on what loads to lift and then you lifted the loads?---That's right, yes.

   At some stage did you get to the fly jib?---Yes, he - we did all the other tests and I said how many falls and how many parts, how far to go up, structural strength on all that other side, and then he wanted a fly jib on and I said, 'Well, I've got no idea how to do this because I haven't got the instruction manual,' so then I called the two guys from Banburys over and I said, 'Look, I don't know how to put this fly jib on.  I've got no instruction manual and I'm a little bit worried about doing some damage to this single hydraulic ram which is' - because it's going to swing laterally across it might actually do some damage to the cylinder.  So they …

   When you say might swing laterally across is that because it's offset?---Yes, it's offset.  That's right.

   Yes, all right.  Yes, go on?---And they said, 'Well, we don't know,' so I said, 'Well, okay.  Well' - after about 10 minutes or so I said, 'Well, how about I do it the same way I do all the other Katos - the 45s and stuff?' and they said, 'Yes, okay.  That would be acceptable.'  So I proceeded to do the same as all the other ones.

   …

   Who was present when you did that?---Both the people from Banburys and Denning.

   …

   Were there any additional slings or ropes that you noticed with this crane?---Yes, there was a sling with two red painted eyes and I asked them what that was for and they didn't have a clue.

   Who did you ask that?---The two people who assisted me at the yard, at Banbury's yard.

   Where was it that you saw the rope?  Where was it positioned?‑--I think it was just laying on the deck of the machine.

   Can you tell us what length the rope was, roughly?---2 and a half metres, I would say.

   …

   Let's just stick to the Banbury yard because you seem to be now talking about the other yard?---Yes.

   At the Banbury yard nothing was said or done, was it, that was consistent with those men being there to train you?---Well, I honestly don't know how to answer that question. I thought I answered it, that I thought they were trying to show me how to operate that computer.

   All right.  That belief, what you thought, was based on something Mr Alexander may have said to you.  Correct?---That's right.

   It wasn't based on anything that the two men said or anything that they did at Banbury's yard, was it?---Like I said, they said, 'I'm here to show you how the computer works.'  That's what the man said and he showed me the PTO so that's all I know.  That's exactly what happened.

   …

   You mentioned taking the crane somewhere else.  Yesterday you said it was the Brambles heavy haulage yard?---That's right.

   Was that at Kewdale?---That's right.  It was not even half a kilometre away.

   Banbury's yard was in Kewdale as well?---That's right.

   Who drove the crane?---I did.

   Did anyone from Banbury follow?---The two people who were in that yard, who I saw.

   The same two men?---That's right.

   …

   The purpose of taking the crane to Brambles' yard was not for you to be trained, was it?  It was for DLI testing?---That's right.

   And the purpose of the testing was so that the crane could be certified to the relevant government department requirements?‑‑-That's right.

   Without that certification you wouldn't be able to use it?---That's correct.

   ….

   One of the men who was present on that first day at the Brambles' yard for the DLI testing was one of the men, was in fact the man that you had spoken to about the computer?---That's right.

   At Banbury?---That's right.

   And that person was the same person who assisted you when you were asked to do things by the DLI inspector?---That's right.

   To take an example of that, that person's function was to fix chains to the crane's hook block to lift test weights?---That's right.

   …

   Let us take it point by point.  What, if anything, did any of these men from Banbury's say to you that indicated to you that they had any idea whatsoever about how to rig a fly jib?---Well, as I said earlier, as far as I was told, they were supposed to show me on how to do this - drive this machine on the Kato.

   I am sorry, that is not the question I am asking.  Just listen very carefully?---Yes.

   What did either of these two men say or do to indicate to you that they knew anything whatsoever about how to rig a fly jib on a crane?---It was just, how would I say - it was just their knowledge of what was going on indicated they didn't know anything.

   Did not know anything?---That's right.

   In fact you agree, don't you, that from what you have just said, they weren't really in a position, from what you could see, to agree that any procedure was or was not acceptable?---That's correct.

   Isn't the true position this:  that there was never any such discussion with these men?---No.  There definitely was that discussion.

   Isn't it the true position that you were the expert in how to rig a fly jib and no-one else?---No.  I was the expert but as I said, I was supposed to be shown as far as I knew.

   ….

   When the crane was serviced, it was serviced by Brambles and not by Banbury during that period from when you collected it through to the time of the accident.  Is that right?---I'm sorry, could you just repeat that again?

   For the period from the time when you collected the crane from Banbury?---Yes.

   …

   For the period from the time when the DLI testing was carried out, through to the time of the accident when the crane was tested, I'm sorry, serviced?---Serviced.

   It was serviced by Brambles and not by Banbury?---Yes, I believe so.  Yes.

   If at any time during the period the hydraulics required servicing or were serviced, that work was done by Brambles and not by Banbury?---As far as I know it was, yes.

   Over that period the crane was used without any indication of any mechanical or hydraulic problems associated with the boom or the jib.  Do you agree?---That's true.

   At some point at least you agree, don't you, during that period you obtained the manual?---That's right.

   So you had it before the accident?---Yes.

   Where was it kept?---On the machine.

   During this period, prior to the time of the accident, did you at any time ask anyone from Brambles to train you in the procedures for operating the crane that you were using on the day of the accident?---No.

   Was any training offered to you?---No, because I was the only person who knew the machine."

1. Mr Lachmaniuk gave the following evidence in relation to this issue:

   "At the time when you first met Mr Benz at that yard, Banbury's yard in Kewdale, had you received any instructions from anybody to give Mr Benz any sort of training in the operation of the crane?---No, I didn't.

   Were you at the time a qualified crane operator?---No, I wasn't.

   Did Banbury in Western Australia at that time employed (sic) any qualified crane operators?---To my knowledge, no, they didn't.

   Did Brambles, on the other hand, to your knowledge employ any qualified crane operators?---Yes, all their drivers would have been qualified.

   Do you recall any request being made to you by Mr Benz at the Banbury yard for any instruction to be given by you to him in crane operation?---No, I didn't.

   ….

   Was Mr Benz at the Brambles yard when you arrived there?---I would say the crane was definitely there so I'm assuming Mr Benz was there.

   All right.  He was there - was he there at all that day during the testing?---For the whole day of the testing, that's correct.

   Do you know how he got there?---I presume he drove the crane to the Brambles yard.

   Why did you go to the Brambles yard?---I was instructed to lend assistance in any matters that arose with - if the crane developed an oil leak or there was some incident which involved using tools to disconnect some particular part of the crane, I could assist in that.

   Had you received any instructions to train Mr Benz in any aspect of crane operation at the Brambles yard?---No, I did not.

   When the testing was carried out at the Brambles yard, did anybody, in your presence, give any instructions to anybody?---Not that I can recall.

   Let me put that another way.  Did you do anything when you were at the Brambles yard?---Yes, I did.

   What sorts of things did you do?---Set up the - use the lifting chains to attach to the lifting weights when the particular - required test was carried out, assisted the DOHSW inspector with measurements of crane radius checks.

   Let me just stop you there.  When you did these things, did you receive any instructions from anybody before you did them?---Yes, I did.

   Who gave you those instructions?---The operator and the inspector.

   Did you at any time give any instructions to Mr Benz?---No, I did not.

   Did you at any time give any training of any kind to Mr Benz?‑‑-No, I did not.

   Did Mr Benz at any time ask you for any training?  That's a …     ?---No, on that particular day.

   Did Mr Benz at any time say or do anything to suggest that he did not know what he was doing?---No, nothing comes to mind."

2. Mr Bradley gave the following evidence:

   "You mentioned the testing.  What testing was that?---That is the requirement of the day.  Because it was a new series, it had to undergo what was called a type test with the Department of Labour and Industry, now DOHSWA -Worksafe.  That was carried out under the auspices of the …

   Did you go anywhere at any time where testing of the crane was being carried out in 1986?---Yes, I did.

   Where was it that you went?---Brambles have got or had in those days a heavy haulage yard just around in the next street from our premises and I attended that site.

   That again was in January 1986, was it?---That's correct.

   Did anybody else from Banbury go to the testing?---Yes.

   Did you yourself instruct anyone to go to the testing?---Yes, I did.

   Who did you instruct to go?---Mr John Lachmaniuk.

   What instructions did you give to Mr Lachmaniuk?---My instructions to Mr Lachmaniuk was that he was to be there like in a mechanical role in case there was a problem with the crane, such as an oil leak or any adjustment that may be necessary, and secondly just to not stand around being a loose number but to help out where he could, if necessary; act as a helping hand, if you like.

   I was, or it wasn't clear to you, talking about instructions given to somebody to go to the DLI testing that you attended?---Sorry, could you ask me again, please?

   HEALY DCJ:  I presume Mr Hancy is telling you that he is talking about instructions going to the DLI testing.  You are clear about that is what he is asking you about?---Yes, I am, your Honour.

   Did you give Mr Lachmaniuk any instructions to train anybody at the DLI testing on any aspect of the operation of the crane?---No, I didn't.

   Did you give Mr Lachmaniuk anything to take with him to the DLI testing?---Yes, I did.

   What did you give him?---When he was just about to leave, I took him out the operator's book and also the PDI inspection sheet because we hadn't set up the crane fully and I wanted him to check off on the manufacturer's inspection sheet that all those functions that we hadn't checked were checked and were satisfactory to the manufacturer's requirement.

   You say you attended the DLI testing.  How long were you there for?---I went around after lunch sometime but I wasn't there for very long; probably 20 minutes, half hour at the most.

   Right, so when did you understand the testing began?---The testing began probably about 8.30, 9 am on that morning.

   How many hours or days did it take according to your understanding at the time?---I expected it to take quite some time because being a type test, the first of a new model, I understood the department inspector would take a lot longer but I had no idea as to exactly how long.

   You arrived for a matter of a short period in the afternoon and then left. Is that right?---That's correct."

3. Mr Alexander's evidence was as follows:

   "If the boom was required to be kept in the horizontal position when erecting the fly jib, it would necessarily follow that the crane carrier would also be level, wouldn't it?---Please repeat your question.  I didn't understand it.

   If the boom of a 450 crane was required to be level when erecting the fly jib then, I suppose there might be two choices; either the crane carrier has to itself be level so that the outriggers are set level?---Yes.

   Or if they are not level and in the lower position then the boom would have to be raised or lowered to get back into the level position?---To the best of my knowledge the 450 model, and there is some confusion with Kato's numbering, 400 also refers to a 45-tonne crane but with those 45-tonne model cranes to the best of my knowledge they could not be lowered below zero on the luffing rams.

   Now, Mr Alexander, you have given evidence that on the second occasion that Mr Benz demonstrated rigging up the fly jib on the 500E III at which occasion you had a copy of the manual?---That's right, sir.

   That Mr Benz rigged it up using a certain procedure?---Yes.

   How does one compare the procedure that Mr Benz used on that occasion with that set out in the manual for the 500 which has just been produced to you?---Sir, the difference was that the red rope or the rope with the two red ends was attached to the trunnion at the base of the boom on the left-hand side and the boom luffed back far enough to hook the headache ball to it and the idea - and it's quite clearly my understanding of the manual - is to control the arc of the fly jib coming out.

   All right.  Now, the procedure which Mr Benz subsequently employed to rig the fly jib on the 500E III?---Yes, sir.

   How does that bear or accord with the procedure set out in the manual for the 500?---Mr Benz - are you asking me, sir …

   Is it the same or a different procedure?---The procedure Mr Benz used on that second occasion, sir?"

4. Mr Benz gave the following evidence:

   "Well, having had the problem with the red rope, you couldn't see the relevance of what Kato was getting at in the manual could you?---No, I couldn't.

   You didn't really understand it?---No, I didn't.

   You thought that it was awkward?---Yes.

   And that you didn't need it?---That's correct.

   And I suppose by the time you got the manual you had used the fly jib system a number of times?---Yes, I would have.

   Do you know roughly how many the number would be?---Probably 20 times.

   ….

   As I said, I tried it with, as soon as I got the manual.  That was the first thing I did.  I got it out and as you would have to get the headache ball out and remove the wire from the fly jib where it was already stowed, take it all off and you had the hassle of trying to get it out in between the guard and the sheave which is probably about 2 inches of clearance and you had that hassle as well and it was just very awkward to get out, then go up, unhook it all, with the other hoisting mechanism, go down the front, put the hook down and go all the way up, put it down then run the red rope straight through where the deadeye was already run through in the first place.  It just seemed like a lot of extra work for that rope just to do exactly the same thing.

   Yes.  Mind you, the manual is the fundamental rule, isn't it?---But if it is doing damage to the machine I believe it is not correct.

   Because you thought the rope was too short?---Well, I couldn't release it plus it was doing damage to the sheaves as it came down.

   You accept, though, that following the manual is a fundamental rule of crane operation?---I believe that it is more of a guide on this occasion because the manual isn't clear on a lot of things.

   What you did, wasn't it, was you looked to see that there was no warning not to do it     ?---That's right.

   - - - the way you wanted to?---I did look to see if there was any warnings of any sort.

   A warning not to do it as you had done for the 45-tonner?---You could say that, yes.

   And there wasn't such a warning so you went ahead and did it the way you did it for the 45-tonner?---Yes.

   When you would use the fly jib, you had on the crane an auxiliary rope for that purpose?---You can use either line, basically.

   The manual says you use the auxiliary, doesn't it?---Yes, but it's a sort of a rule where you can use either line.  It doesn't really matter because it's the same diameter.  If you have got damage done to the auxiliary you can use the main line.

   If you use the main line you should use it in the same way as you would use the auxiliary.  Would that be correct?---Yes.

   GOETZE, MR:  Mr Benz, when you operated the 450 crane, 45 ton crane?---Yes.

   Was it your usual practice to lower the boom below horizontal to facilitate fly jib erection?---Yes, usually.

   You used to also do that on the 500 crane?---Yes.

   The idea of that being so that the boom is down lower to the ground to make it easy to put your hands up in     ?---That's right, easier to reach.  Yes.

   So you did that on both models?---Yes, depending which 50 tonner you're talking about.  If you're talking about the 3300, yes.

   The 450 that you used to operate?---NK450, yes."

5. The significance of the evidence which I have set out above is, I think, that it establishes quite clearly that Banbury was not asked to train Benz on the use of the crane and would not have been competent to do so had it been asked.  Banbury was the distributor of the crane sold to Brambles.  The evidence satisfies me that there was nothing in the manual which should have alerted Banbury to the existence of the defect in the crane, namely, that when lowered below the horizontal level, the boom was capable of uncontrolled extension.  In my opinion, the appellant has not succeeded in demonstrating that the learned trial Judge was mistaken in holding that Banbury was not relevantly negligent.  The fourth ground of appeal must, in my opinion, fail accordingly.

Kato's case against Brambles

1. The fifth ground of appeal is:

   "5.His Honour erred in failing to find the Third Respondent negligent and thereby liable to contribute to and/or indemnify the Appellant in that:

   (a)his Honour failed to give effect to his findings referred to in 1(a) and (b) above;

   (b)his Honour failed to find that it was reasonably foreseeable that the failure to carry out the laid down sequence including use of ropes could or would produce a risk of injury to the First Respondent;

   (c)alternatively his Honour erred in failing to consider the question of whether it was reasonably foreseeable that the failure to carry out the laid down procedure including use of ropes would or could produce a risk of injury to the First Respondent;

   (d)his Honour failed to give effect to his findings that representatives of the Third Respondent were aware that the First Respondent proposed to operate the crane contrary to the laid down sequence including use of ropes and standing wholly or partly beneath the fly jib and that they failed to prevent the First Respondent from so operating the crane;

   (e)his Honour failed to find that the Third Respondent owed a duty of care to the First Respondent;

   (f)his Honour failed to find that the Third Respondent owed a non-delegable duty to the First Respondent;

   (g)his Honour failed to find that the Third Respondent as employer exposed the First Respondent to a reasonably foreseeable risk of injury which was the cause of or a material contributing cause of the damage to the First Respondent."

2. Senior counsel for the appellant submitted:

   "Now, your Honours, we make the point in our submissions that, with respect, the learned trial judge simply drew the wrong conclusions here because the facts are clear.  The employer simply cannot leave the employee to get it wrong.  The employer simply cannot fail to supervise the employee or direct the employee to at least try to make the manual work or, alternatively, to stop, look and listen and call the whole project off until the employer satisfies himself by, we would say, making appropriate inquiries of perhaps my client or other crane people or Banbury and resolve the problem.

   They had a clear problem on their hands.  They couldn't get the crane to work as per the manual.  It was a new type of crane.  It was offset.  It had these features that Mr Alexander points out that he permitted, at the very least, or encouraged or allowed or joined in with a decision of the employee to proceed, we would say, whether it be dangerously and recklessly."

3. In fact, of course, Benz did get the crane to work, despite the inability to secure the supplementary rope as suggested in the manual, and he adopted a course which, so far as he was aware, achieved the same purpose as the use of the supplementary rope.  He was not, however, at any time before the accident, aware that the supplementary rope had a further, undisclosed purpose, namely, to overcome the uncontrolled extension of the boom when lowered below the horizontal level.  There was nothing in the manual to alert him to that use.

4. Senior counsel for the appellant submitted:

   "…. we will say the absolute minimum requirement of the employer is to stop using the machine, to simply not permit it to be used until the problem was worked out and solved, even if it meant freezing it, because there was a clear risk, we would say, that whether they knew it or not specifically the facts are and the law is clear that if there is a reasonably foreseeable risk of some problem of a safety nature, not necessarily the specific one arising, that is not absolutely far-fetched then the employer must protect the employee.

   The employer must ensure, even if it means not using the machine until they have solved the problem, that something is done to resolve the problem.  We would say it's absolutely manifest that if you have a new type of machine and if you have a system laid down - and it must have some importance this - even if you yourself don't subjectively specifically recognise a particular safety feature, it must be the case that if you don't use the method laid down for the new system that there is some possible safety risk involved.  We would say it has to follow as a matter of region and logic.

   You just can't get a new car and say, 'This has got some totally new feature.  It has an engine that's much, much heavier and it says you can govern it by turning a switch and you won't go more than a certain speed.'  You couldn't let your employee go out if no one could get the switch to work.  You would have to stop the employee and say, 'No, you don't drive that car till we work out how to make this switch work so you won't get into trouble'.

   ….

   Your Honours, from a passage that I read, the plaintiff clearly knew that even with the old machine boom creep was some possible problem.  Secondly, you could see from the way it was done, the mere setting up of it if you had followed the manual, you ought to have been able to see that it would have solved this problem, but thirdly, even if you couldn't pick the reason we would say that you simply cannot, when dealing with large heavy inherently dangerous machinery, allow your employee to pick and choose some previous method and then allow the employee even further on the day in question to lower the boom below the horizontal which was even contrary to the 450 manual.  We would submit that it absolutely cries out for caution on the part of the employer.

   What has happened here is the employer has missed completely a safety aspect.  Part of the reason may well be he himself wasn't properly qualified as appears on the evidence, but he was the man that the company chose and put in charge of this situation.  He didn't have his own full trade qualification.  Brambles are train (sic) experts.  They hold themselves out to be experts in cranes.  That's their business.  It behoves them to provide fully adequately competent supervisors, people who would recognise there would be a safety problem.

   If they provide a man who in these circumstances can't even see that there might be a safety problem simply because he can't see the perceived use, we would say they are clearly in error.  We would submit Alexander must clearly be in error also, and the plaintiff must clearly be in error.  17 years of work - 17 years in the industry - we would say that it must be manifest that if you don't adopt the procedures laid down or if you don't satisfy yourself that by not adopting the procedures laid down you have eliminated any potential safety risk, there must be negligence.

   Would your Honours pardon me a moment?  We accept that it would have been better if there had been some reference to safety as to this aspect in the manual but the mere fact that there isn't, you can't accept that a manufacturer of cranes, a large manufacturer of large industrial machinery, produces a new model with a new configuration with procedures laid down that would in fact solve the problem - you couldn't expect that the manufacturer would be expecting that it would simply be ignored; that it would simply not be put into operation."

5. The appellant pointed to the non-delegable duty owed by Brambles to Benz as its employee to take reasonable care to avoid exposing the employee to an unnecessary risk of injury: Bankstown Foundry Pty Limited v Braistina (1985-86) 160 CLR 301; Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, at 25. The duty is to take reasonable care to avoid risk of injury that is reasonably foreseeable.

6. The appellant submitted that it should have been obvious to Brambles that there was a risk involved and that the probability of occurrence was very great if Benz were to use the old method in his work thereafter.  It submitted that the expense, difficulty and inconvenience of taking alleviating action, namely, making appropriate enquiries of the distributor or manufacturer or conducting an evaluation of the machine, would have been relatively trivial.  It has been recognised that the obligation on the employer is heavy and, as McHugh J said in Bankstown Foundry Pty Limited v Braistina (supra), "it has long been recognised that what is a reasonable standard of care for an employee's safety is 'not a low one' " (see O'Connor  v Commissioner for Government Transport (1958) 100 CLR 225.

7. It is, of course, of the essence of the appellant's claim in relation to Brambles that the risk was reasonably foreseeable.  In this regard, I have dealt in relation to the second ground of appeal with the question of foreseeability, and what I have there said applies equally to the fifth ground of appeal.  In my opinion, the risk resulting from the uncontrolled extension of the boom was not foreseeable.

1. In my opinion, the appellant has not made out its claim against Brambles.  It has not demonstrated negligence on the part of Brambles, nor any error on the part of the learned trial Judge in reaching his conclusion that Brambles was not liable to make a contribution to the damages payable to Benz.

2. I would, for the aforegoing reasons, dismiss the appeal by the appellant.  In the result, the cross-appeal falls away, and it, too, should be dismissed accordingly.