Kay v Sydney Airport Corporation Limited - [2014] NSWSC 744

Supreme Court

New South Wales

Medium Neutral Citation: Kay v Sydney Airport Corporation Limited [2014] NSWSC 744
Hearing dates: 19, 20, 21, 22 and 23 May 2014
Decision date: 06 June 2014
Jurisdiction: Common Law
Before: Adamson J
Decision:
Proceedings 297470 of 2009
(1) Judgment for the second defendant.
(2) Judgment for the plaintiff against the third defendant.
(3) Reserve the question of costs.
(4) Direct the parties to perform calculations as to quantum and to prepare short minutes of order to reflect my reasons and provide draft short minutes to my Associate within seven days of this judgment.
(5) Direct the parties to contact my Associate within seven days to list the matter for argument on costs, if costs orders are not agreed.
Proceedings 146777 of 2012
(1) Judgment for the first defendant.
(2) Judgment for the plaintiff against the second defendant.
(3) Reserve the question of costs.
(4) Direct the parties to perform calculations as to quantum and to prepare short minutes of order to reflect my reasons and provide draft short minutes to my Associate within seven days of this judgment.
(5) Direct the parties to contact my Associate within seven days to list the matter for argument on costs, if costs orders are not agreed.

Catchwords:
TORTS - Negligence - Causation - two immediate causes of injury - additional force on plaintiff's shoulder due to her working overhead which ought to have been mitigated by provision of a ladder by employer -additional force required to be exerted to obtain a connection between aircraft and ground power unit due to third defendant's incorrect orientation of bulge -presumptive inference of causation from sequence of events open - fact that plaintiff had inserted incorrectly configured connectors in the past or the fact that other workers would not have been injured when inserting connectors not determinative - No contributory negligence - Second defendant discharged duty to plaintiff by engaging a reputable and well-qualified contractor (the third defendant) to perform work and maintenance on airport ground power units
CIVIL PROCEDURE - Limitations - plaintiff's cause of action not time-barred - Whether the plaintiff knew or ought to have known that the injury was caused by the fault of the third defendant - Plaintiff's solicitor's constructive knowledge not to be imputed to plaintiff- Plaintiff's engagement of reputable solicitors sufficient to show that plaintiff had not failed to take reasonable steps - Plaintiff's lack of knowledge that third defendant was at fault not a result of any failure on her part to take reasonable steps
Legislation Cited: Civil Liability Act 2002 (NSW), s 5B, s 5E, s 5R
Limitation Act 1969 (NSW), s 50C, s 50D
Occupational Health and Safety Regulation 2001 (NSW)
Workers Compensation Act 1987 (NSW), s 151H, s 151Z
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538
Baggs v University of Sydney Union [2013] NSWCA 451
Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454
Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307
Bevillestra Pty Limited v Liberty International Insurance [2009] NSWCA 16
Boral Bricks Pty Limited v Cosmidis (No. 2) [2014] NSWCA 139
Bostick Australia Pty Limited v Liddiard [2009] NSWCA 167
Jones v Dunkel (1959) 101 CLR 298
Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672
Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; 59 ALJR 492
Seltsam Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262
Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; 200 CLR 121
State of New South Wales v Gillett [2012] NSWCA 83
TNT Australia Pty Limited v Christie [2003] NSWCA 47; 65 NSWLR 1
Transfield Services (Australia) Pty Limited v Hall; Hall v QBE Insurance (Australia) Pty Limited [2008] NSWCA 294; 75 NSWLR 12
Wallace v Kam [2013] HCA 19
X and Y (by her tutor X) v Pal (1991) 23 NSWLR 26
Zanner v Zanner [2010] NSWCA 343
Texts Cited: Honore & Hart, Causation in the Law, (2nd ed 1959, Clarendon Press)
Category: Principal judgment
Parties:
2009/297470
Anna Kay (Plaintiff)
Sydney Airport Corporation Limited (1st Defendant)
United Group Infrastructure Pty Limited (2nd Defendant)
Alltrack GSE Pty Limited (3rd Defendant)
2012/146777
Toll Aviations Engineering Pty Ltd (Plaintiff)
UGL Infrastructure Pty Ltd (1st Defendant)
Alltrack GSW Pty Ltd (2nd Defendant)
Representation:
Counsel:
2009/297470
H Kelly SC/T McKenzie (Plaintiff)
P Cummings SC/R Taperell (2nd Defendant)
DA Lloyd (3rd Defendant)

2012/146777
N Polin (Plaintiff)
P Cummings SC/R Taperell (1st Defendant)
DA Lloyd (2nd Defendant)
Solicitors:
2009/297470
Slater & Gordon Limited (Plaintiff)
Sparke Helmore (1st Defendant)
Cantle Carmichael Lawyers (2nd defendant)
GSG Legal (3rd Defendant)
2012/146777
Hicksons Lawyers (Plaintiff)
Cantle Carmichael Lawyers (1st Defendant)
GSG Legal (2nd Defendant)

File Number(s): 2009/297470; 2012/146777
Publication restriction: Nil

Judgment

Introduction

The plaintiff, Anna Kay, seeks damages against United Group Infrastructure Pty Limited (UGL) and Alltrack GSE Pty Limited (Alltrack) for negligence in respect of injuries she sustained on 2 April 2006 when she hurt her shoulder while attempting to insert a connector into an aircraft socket to connect the aircraft to a Ground Power Unit (GPU) in the course of her employment as an aircraft maintenance engineer at Terminal 2 at Sydney Airport.

Ms Kay originally commenced proceedings against the first defendant, Sydney Airport Corporation Limited (SACL), but resolved the proceedings by consent on 20 November 2013 by a judgment entered in favour of SACL. On 16 October 2009 she joined UGL as the second defendant. UGL does not rely on the limitation defence. On 20 September 2009 she joined Alltrack as the third defendant, which does rely on the limitation defence.

Ms Kay's claim for damages was heard concurrently with a claim brought by Toll Aviation Pty Limited, her employer (Jetcare), for indemnity against UGL and Alltrack in respect of workers' compensation payments made to Ms Kay. There is no limitation defence in respect of that claim.

Ms Kay's case is that the equipment she was using to connect an aircraft to ground power had been incorrectly configured which required her to use greater force to make the connection and resulted in her injuring her shoulder.

The Facts

Background

Ms Kay was a licensed aircraft maintenance engineer (LAME) in avionics, who was licensed with respect to Boeing 737-800 and 737-700 series aircraft (NG aircraft) and worked exclusively on maintaining these aircraft. In the early 1990's she was employed by Ansett but was subsequently employed by Virgin Airways. Her employer as at 2 April 2006 was Jetcare. She had worked relatively continuously throughout that period.

Ms Kay worked in shifts of four days on and four days off. For the first two days she worked days, from 5 am until 4.15 pm, and for the second two days she worked nights, from 5 pm until 4.15 am.

Bays 31-40 at Terminal 2

All the aircraft used by Virgin at Terminal 2 were NG aircraft. Bays 31-40 were designated Virgin bays and, as such, were normally used for Virgin aircraft. Indeed Ms Kay could not recall an occasion between January 2005 and the time of her accident when any airline other than Virgin had used those bays. I accept Mr Maguire's evidence that Virgin contracted with the Sydney Airport Authority in 2003 to have exclusive use of concourse A (Bays 31-40) at Terminal 2 and that remained the position at the time of the accident in 2006.

Connecting aircraft to ground power

As part of her duties Ms Kay was required to connect certain aircraft to ground power when they came into Bays 31-40.

The aircraft which were required to be connected to ground power were terminating aircraft, so called because they were to remain in the bay overnight. Aircraft which were being cleaned and turned around for another flight would be powered by Auxiliary Power Units (APUs) in a small jet engine located in the tail of the aircraft. Where the APU on an aircraft was unserviceable, the aircraft would also be connected to ground power.

The GPUs are manufactured by Axa Power A/S, a Danish company. They take 415Vac grid power (from mains electricity) at 50Hz and convert into electricity compatible with commercial aircraft, namely 115Vac at 400Hz.

The task of connecting the aircraft to ground power was performed in the following way. The aircraft would taxi into its allotted bay and come to a stop. Its main engines would be shut down and its electrical power would be supplied from the aircraft's APU. A worker, such as Ms Kay, would then "chock" the wheels so that the aircraft would not roll. While the APU was still running, the worker would then drag a cable, of about 20 metres in length, known as the Ground Power Lead (GPL) from the GPU, lift the connector at the end of the cable, check the orientation of the pins in the connector and insert it into the socket which is located behind a hatch door on the side of the aircraft.

Because the aircraft that came into the bays where Ms Kay worked were passenger aircraft of a substantial size, she felt obliged to connect the power as quickly as possible to avoid a delay in disembarkation and to minimise the cost of fuel that would be used when the aircraft was on the ground awaiting connection to a GPU.

On the NG aircraft the socket was behind a hatch door on the right hand side of the aircraft, which had a hinge on the right side of the door. Mr Maguire's evidence, which I accept, was that the hatch on all Boeing aircraft including 737s had had the same design and configuration since 1967. The hinge of the door had to be on the right to ensure that if the door opens in flight, the forces associated with the direction of travel will push the door closed again; if the hinge were on the left and the door on the right of the aircraft, such forces would tend to open the door and tear it off. Mr Maguire accepted that for some aircraft, for example Embrauers, the hatch is on the left side of the aircraft and therefore the hinge is on the left.

The hatch was about 1.8m from the ground. As Ms Kay was 1.54m she had to lift the connector 26 cms above her head in order to insert it into the socket. She found the task of connection invariably heavy and difficult and said:

"It [the plug connector] is always hard and heavy to put in."

The socket had two rows of connection points, with three points in each row. On the top row there were two smaller connection points and one large connection point. On the second row there were three large connection points. Because of the way the connector and the socket were configured, there was only one way in which it could be inserted. The pins in the connector are the female parts of the connection and the pins in the socket are the male parts. The layout of the holes/ pins is asymmetric. If one is facing the connector, the holes (female parts) for the pins appear in the following configuration:

Small pin
Small pin
Large pin
Large pin
Large pin
Large pin

The two smaller holes are known as "ground interconnect". The aircraft senses the power coming through these connections to ensure that good quality power is available to be delivered to the aircraft. Once connection has occurred with the two smaller holes, the aircraft will "latch" onto the power from the GPU. Three of the larger pins are for each of the three phases and the fourth larger pin is for ground, or neutral.

When the connection was made, a light would come on to indicate that high-quality alternating power was available to the aircraft. At that point the APU could be turned off and the passengers were permitted to disembark.

All NG aircraft had the socket, hatch and pins configured as set out above. Indeed, as at April 2006, Ms Kay was not aware of any other pin configuration or of any aircraft which did not have the hatch to connect to a GPU on the right hand side.

It was put to Mr Maguire by Mr Lloyd on behalf of Alltrack that the pins for Virgin aircraft other than NG were vertical in two columns of three and that, when configured that way, it did not matter which side the bulge was on the shroud. Mr Maguire rejected the proposition. I accept Mr Maguire's evidence. He is a very experienced aircraft maintenance engineer and could be expected to know. Although Mr Berry was the managing director of Alltrack, his technical knowledge was not as detailed as that of Mr Maguire. Nor was it established that Mr Berry had ever performed the relevant task himself.

The relationship between the parties and the division of tasks

Virgin maintained its own aircraft. SACL owned the infrastructure on the ground at the airport, including the GPUs. SACL contracted with UGL by agreement entered into in July 2004 to maintain certain equipment, which required it to conduct preventative and corrective maintenance on the relevant GPUs at Sydney Airport (Contract No. 704 for Comprehensive Facilities Maintenance) (the UGL contract).

UGL did not purport to have expertise in the maintenance of GPUs and did not undertake such maintenance itself. It engaged various specialist contractors, including Alltrack. SACL, as the occupier of the airport, authorised Alltrack to perform this work.

Alltrack was first registered in about 1996. Since that time it has engaged in the supply and maintenance of ground support equipment for aircraft for small, medium and large airlines and for airports, as well as for the Department of Defence. Indeed, the "GSE" which forms part of the name of the company is an acronym for "ground support equipment". It installed and designed the GPUs at Terminal 2 for Ansett in 2000 in accordance with Ansett's requirements. It recommissioned them following the winding up of Ansett in 2002.

Alltrack previously maintained the GPUs and associated cables and connectors for a company referred to in the evidence as Spotless, which was UGL's predecessor at Sydney Airport. When UGL took over the responsibility of maintenance it "inherited" Alltrack from Spotless. The arrangement between UGL and Alltrack was not reduced to writing. However it was accepted by Alltrack that it was responsible for the maintenance tasks referred to above.

The assembly of the parts associated with the GPU and the configuration of the aircraft

The connectors used to connect the aircraft to the GPU came from LPA Niphan Systems in the United Kingdom. The cables came from Switzerland. In its workshop at Ingleburn, Alltrack assembled the connectors and the cables so that they could be installed in the GPUs at the airport. When installed, the GPL is attached to the GPU. The GPL consists of four strands of cable attached at the end to a rubberised connector. At the end of the four strands of cable contained within the connector are the "pins" referred to above which deliver electrical current when connected to the socket on the aircraft.

When Alltrack had assembled the unit, it would affix a shrink-wrapped shroud around the joint to insulate the connector that housed the cable strands and protect it from the weather. This shroud is not symmetrical and has a bulge on one side. The shroud is a relatively hard substance but is subject to fraying when it comes in contact with a sharp metal object such as the hinge of the hatch door.

It is possible to assemble the whole connector in such a way that the bulge sits on one side of the pins or the other. The bulge has nothing to do with the electrical supply to the pins and is there to provide clamping force to the electrical cables. The connector can operate to provide electricity with the bulge in either orientation.

If the connector was assembled with the bulge on the left, the bulge did not impinge on the hinge on the hatch. However, it did when on the right hand side. It was common ground that although it was still possible to obtain a connection between NG aircraft and the GPU when there was a bulge on the right, greater force was required to obtain such connection. The abrasion between the bulge and the hinge caused some degree of scuffing on the shroud.

When one is facing the connector, the bulge appears on the right side, but, of course, when it is inserted into the aircraft it is on the left side, which is the opposite side to the hinge of the aircraft door.

Over time connector ends of the GPL tend to become distorted by being forced into the socket or by being pulled away from the socket by the weight of the GPL. The shape of the shroud may be distorted or the pins spread within the connector. At a certain point, the connection is no longer capable of delivering quality power to the aircraft. As soon as quality power is lost, the GPL is tested and would usually have to be replaced with a new connector with a stiff shroud, in order to make good contact with the socket.

The arrangement between Jetcare and SACL was that Jetcare was not permitted to perform work on SACL's equipment such as the GPLs or the GPUs. Jetcare's maintenance obligations were confined to the aircraft themselves. The system was that the Jetcare staff would report any defects or faults to the SACL fault line and log a defect such as the failure of a GPL to deliver quality power. UGL would then request Alltrack to do the work and Alltrack would invoice UGL once it had performed the work.

A subsequent change in the orientation of the pins

Mr Maguire's evidence, which I accept, was that there had been no changes to the connector or the pin configuration on the aircraft since he started working in the early 1990's until 2011 or 2012, shortly before his statement, which was made in 2012. The relevant change, which occurred in 2012, was not in the orientation of the pins, which remained the same, but rather the axis of the pins relative to the axis of the aircraft. Presently, instead of the pins being in two rows of three, the pins have been rotated by 90 degrees such that they are configured in two columns of three. When the connector is inserted into the newly positioned socket the bulge is now on the bottom and does not interfere with the hinge. However there are aircraft with the earlier configuration still in service. Accordingly there are presently two configurations still in service.

Mr Maguire explained his understanding of why the change was made as follows:

"Because through the wear and tear of the pins they are, they fall out basically and we lose ground power. Worst case scenario, drains the batteries of the aircraft, which is a cost impediment and an operational impediment."

Alltrack's practice when assembling the connectors

Alltrack was aware as at 2006 that Virgin operated two types of aircraft, 737-700 series and 737-800 series, both of which were NG aircraft and that normally only Virgin aircraft would use Bays 31-40.

There is a substantial issue in the case as to the way in which the connectors were assembled and whether Alltrack had a system regarding the orientation of the bulge. The evidence is not consistent. It is not clear whether, as the plaintiffs contended, Alltrack had a system in place for assembling such GPLs with the bulge on the left up until 2005 and there was a rogue technician who did not appreciate the significance of the positioning or whether, as Alltrack contended, there was simply no system at all.

Mr Berry's evidence is inconsistent on this topic. There is a difference between the statements made by Mr Berry in 2011 to an investigator, Lisa Thompson, employed by Hughes & Associates who was engaged by UGL, on the one hand and the evidence of his statement in the proceedings and his sworn evidence on the other.

In his 2011 statements Mr Berry made the following admissions about the situation as it was in April 2006:

"Alltrack has been setting up the orientation of the bulge on the side of the socket where the neutral phasers are located since 2001/2002" ([15] in Ex F; and [14] in Exhibit H)

"There is a bulge on one side underneath the shrink material caused by the shape of the connector. However we ensure that it is aligned in relation to the location of the holes of the socket in such as way that is [sic] does not cause a problem. If the bulge is around the wrong way it does interfere with the door on some aircraft." ([11] in Ex F and [11] in Ex H)

"If the bulge was oriented the wrong way around the ground crew may have problems getting it in. If the orientation is correct and the bulge is on the opposite side to the door it should go in with the appropriate force." ([28] in Ex F and [27] in Ex H)

I shall leave to one side the question of the location of the "neutral phasers" referred to in the first passage extracted since the proceedings were conducted on the basis that the connector marked Exhibit P was similar to those in use at the time of Ms Kay's accident and that the bulge when oriented on the left did not impact on the hinge to the hatch. After I had reserved my decision, Alltrack applied for leave to recall Mr Maguire to put certain propositions to him. I refused leave on the basis that the case had been conducted on a certain forensic basis and that the proceedings had concluded.

Mr Berry accepted in his oral evidence that if the pins in the connector are in a horizontal configuration (two rows of three pins), the position of the bulge is important because if it is on the wrong side it can cause additional friction when the shroud comes into contact with the hinge of the hatch.

Mr Berry's evidence in the 2011 statement was reiterated in his oral evidence as follows:

"I have no consideration as to whether they were vertical or horizontal. I could say that we have assembled these connectors since 2000 and the assembly of that would have been on the left-hand side or towards the neutral, sorry, towards the neutral and it may or may not have come in contact with the hinge on the door."

However, later in his oral evidence, he suggested that the orientation of the bulge depended on the particular technician who assembled the connector. Mr Berry defended Alltrack's putative lack of a system in the following passage in his cross-examination:

Q. The location [of the hatch on the left or the right] is important, isn't it?

A. Not to me.

Q. Why not?

A. Because all I need to do is provide a connector which is an ISO standard which fits to the fitment in the aircraft.

Q. You need to provide a connector that fits the aircraft, don't you?

A. And that is built to the standard.

Q. Yes, but the connector that you assembled can be connected in two different ways involving the orientation of the bulge?

A. Yes.

Q. And you know that connected one way, it fits respectably easily into an aircraft; connected the other way there are problems?

A. With one particular aircraft, apparently.

Mr Berry said that Alltrack was not aware of the problem until April 2006 after Ms Kay's accident and did not accept that it ought to have been aware of it prior to that time. He said further, of Alltrack's role:

"All I need to do is provide that standard system and it will connect to any aircraft."

Mr Berry said later in his evidence that as far as he knew the connectors had been assembled since 2000 in such away as would have interfered with the hinge. In other words, he appeared to accept, using the language of his 2011 statements, that the connector had been assembled the "wrong" way since 2000.

The 2011 statement (Ex F) also contained the following statement in [22], which was self-serving:

"If there was a fault with any of the GPUs we would be notified of it, normally, within 24 hours. If the bulge had been on the wrong side, the socket would not have been able to be connected to the aircraft pins. I would say that the potential for any fault to be noticed would have been very high in the two weeks before replacement of the cable in March and the incident in April 2006."

Mr Berry accepted in oral evidence that he was incorrect in considering that if the bulge was on the wrong side of the connector, the socket would not be able to connect to the aircraft pins. He said that it could still be connected although it would require additional force, which is consistent with the statement also set out above.

It follows that, in my view, his conclusion about the likelihood of the matter being brought to his attention was misplaced. Since the aircraft could still be connected to ground power although the bulge was on the wrong side, the fault would not necessarily be detected since any additional force required would not necessarily be attributed to the position of the bulge.

In my view, the evidence is insufficient to determine whether it is more probable than not that Alltrack had a practice of orienting the bulge on the left (correct) hand side of the connector but that something happened to change that practice, which is why the majority of connectors were configured the wrong way around at the time of the inspection in April 2006, or whether Alltrack had always, or at least commonly, assembled them incorrectly. Although one might think that if the latter were the case, it might have come to someone's attention beforehand, I regard this as no more than speculation since the evidence does not establish how often the connectors were replaced for other reasons, including that the pins became distorted, or general wear and tear meant that they needed to be replaced.

The replacement of the connector at Bay 33 in February 2006

On 9 February 2006 Alltrack was called out to do some work on the connectors on Bay 33, which was completed by the date of its invoice to UGL, 14 February 2006. This work involved replacement of the cable, which occurred at the bay itself, when it was installed into the GPU. The connector itself was attached to the cable and the shroud applied at Alltrack's workshop off-site.

For reasons that follow, I find that the connector at the GPL at Bay 33 was assembled with the bulge on the right (incorrect) side. Mr Berry, its Managing Director, accepted that if the bulge was on the right side then that would be the "wrong" way to do it for NG aircraft.

The incident on 2 April 2006

Ms Kay commenced working at 5 pm. It was the fourth day of her four-day shift. At 10.30 pm she was called upon, for the first time that shift, to connect an aircraft to the GPU by inserting the connector into the socket. She had not previously noticed that the connector was asymmetric in that it had a bulge on one side and she did not notice this on that night.

When she attempted to insert the connector into the socket of the aircraft at Bay 33 she found that it would not go in. As she was trying to force the connector into the socket she felt pain in her right shoulder and dropped the connector. Ms Kay repeated in evidence what she told Mr Dohrmann, the expert retained by her solicitors for the purposes of the proceedings, that she persisted for two minutes in trying to get the connector into the socket because the task was more difficult than usual and this was longer than she would normally have to spend to get a connection.

The defendants submitted that there was a substantial inconsistency between Ms Kay's versions of how the accident happened and contended that she had in effect given two different versions as follows:

(1) The task was heavy and difficult, as it always was. When she felt pain she stopped (Scenario 1).

(2) The task was unusually difficult and involved Ms Kay persisting in trying to force the connector for two minutes before she felt injury to her shoulder (Scenario 2).

I do not consider the line between the two scenarios to be as clear or significant as the defendants contended. I am satisfied from the evidence referred to elsewhere that the GPL at Bay 33 had the bulge on the right and that therefore the connector was in fact harder to insert into the socket because of the additional resistance occasioned by contact with the hinge that it would have been had the connector been properly configured. As to the length of time during which Ms Kay persisted in trying to make the connection, I am not satisfied that her estimate of two minutes was necessarily reliable. My finding is that when Ms Kay tried to insert the connector into the socket she found it to be even more difficult than usual and accordingly she applied additional force. She persevered because of the relative urgency of the task. The force she applied was insufficient to overcome the resistance and make the connection. However it was sufficient to injure her shoulder. The pain from her injury caused her to desist from the task.

Ms Kay reported the incident immediately to Mr Maguire. She applied ice to her shoulder in the office at the airport. She did not appreciate at the time that her accident related to any fault in the connector that made its insertion into the socket more difficult. She believed at the time that she had hurt her shoulder because she had been doing a heavy job overhead. She filled in an injury report form on the evening of 2 April 2006 in which she described the incident as follows:

"While applying the ground power lead to a/c [aircraft] on bay 33 I felt pain in my right shoulder."

Neither Ms Kay, nor Mr Maguire, inspected the actual connector on the night of the accident. Nor does the evidence establish that the actual connector that Ms Kay was lifting at that time was photographed, although there is a photograph of a connector with a frayed shroud in evidence.

On the following day Ms Kay consulted her general practitioner, Dr Brett Thompson and had an ultrasound and a MRI. She had physiotherapy and some Cortisone injections.

She filled in a workers compensation claim form on 8 April 2006 and an employee's record of injury form on 2 May 2006.

In none of her reports of injury referred to above did Ms Kay refer to the fact that she had met with unusual resistance when trying to insert the connector into the socket.

Jetcare's investigation of the cause of the accident

As a result of the injury sustained by Ms Kay, Jetcare asked one of its employees, Bob Gilliland, a LAME who, like Ms Kay, specialised in avionics, to investigate the incident. By email dated 11 April 2006, he reported as follows to Jetcare, including to its Occupational Health and Safety Manager, Greg Searle, and John Mafrici, its Line Maintenance Manager:

Attached herewith, photos of the ground power leads in Sydney. You will note that there is a hump on one side of the plug. This should be to the rear of the aircraft when inserted into the ground power recess. If the plug is assembled with the hump to the front of the aircraft, the plug jams against the lower hinge of the ground power access door, thus preventing the plug from mating with the aircraft power receptacle or conversely, such mating a very difficult task. The damage caused by this incorrect assembly can be seen in one of the photos where the hinge has torn the shield from the plug.

This incorrect assembly has been carried out on the ground power leads at bays 31, 33, 34, 36, 39 and 40. Although the plug on bay 35 is correctly assembled, it has a very thick heat shrink shroud on it which is showing signs of excessive interference with the aforementioned hinge.

To prevent further injury to personnel and damage to aircraft and/or plugs, the gound [sic] power leads at these 7 bays have been rendered unserviceable until SACL (who have been advised of the situation) have rectifications carried out. Bays 32 and 38 are correctly assembled and are considered satisfactory for continued use.

So far as the evidence revealed, this was the first time that Jetcare had become aware of the significance of the bulge being on one side or the other. The evidence did not establish that Jetcare had any prior system of inspection. Indeed the evidence of Mr Maguire suggested that Jetcare had not inspected them in the past. Jetcare simply reported a defect to SACL when a connector was no longer able to deliver quality power to an aircraft .

The position of the bulges in other connectors at the Virgin Bays at T2 in the period leading up to the accident

The other evidence that is relevant to how the bulge came to be assembled the wrong way around on the connector at Bay 33 derives from Mr Gilliland's investigations. The evidence establishes that, as at 11 April 2006, the connectors for many of the GPLs at the Virgin bays were on the wrong side and had been for some time. It was common ground that no relevant work had been done on the connectors between 2 April 2006 and 11 April 2006. Accordingly the situation as revealed by the inspection on 11 April 2006 reflected the situation as at the date of Ms Kay's accident.

As a result of Ms Kay's accident and the subsequent investigation, UGL issued a work order to Alltrack on 11 April 2006 which contained the following description of the problem that affected the GPLs at Terminal 2:

Virgin have reported that there is a problem with the ground power unit plugs. If you contact Virgin engineering on extension 7637 they will be able to explain. Apparently, the ones on bays 32 & 38 are OK, the rest on the Virgin pier are NOT being used by Virgin staff due to injuries. If you ring them they will give you more details, but it is something about a protrusion on one side of the plug, it is on the correct side on bays 32 & 35, but is on the wrong side on bays 31, 33, 34, 35, 36, 39, 40.

Mr Berry's handwriting appears below the description and reads as follows:

Discussed issue with Ramp Manager (Virgin, Patrick). Problem arises on 737 ground power access hatch moulded section of connector fowles [sic, fouls] hinge section of Hatch door, depending on orientation of moulded section.

Solution replace nominated connectors. Bay 34 & 36 have worn cable suggest replacement of cable.

Alltrack invoiced UGL for the work performed on 12 April 2006 on the same day. The description of work performed by Alltrack was as follows:

Electronics Repairs on Site,

Inspected connectors at each bay

nominated Bays 31, 33, 34, 35, 36,

39, 40.

Connector rear moulding can fowl [sic]

ground power hatch door if the rear

moulding of the connector is

assembled on the top side of the

connector. Requires the moulding to

be rotated 180 deg on initial

assembly.

Solution is to replace connectors,

Bay 34 & 36 have worn cable,

suggest replacement of cable.

The evidence of when work was last done on the relevant connectors in bays 31-40 is summarised in the following table:

Bay number
Orientation of bulge
Date cable/ connector last replaced at that bay
31
Right
16 November 2005
32
Left
33
Right
9-14 February 2006
34
Right
Prior to 1 July 2005
35
Right
28 September 2005
36
Right
Prior to 1 July 2005
37
Used as a car park
Not applicable
38
Left
39
Right
Prior to 1 July 2005
40
Right
19 October 2005

The table shows that of the nine bays, only two had the GPLs correctly assembled. Of the seven that had the bulge on the wrong side, three had had work on the connectors done prior to 1 July 2005, one on 28 September 2005, another on 16 November 2005. The connector at Bay 33 was the most recently installed. The evidence established that there had been no complaint to Alltrack about the problem until April 2006, after Ms Kay's accident.

Expert evidence

No experts were called to give oral evidence. However, the reports of Mark Dohrmann (retained on behalf of Ms Kay), Roger Fairfax (retained on behalf of UGL) and Robert Casey (retained on behalf of Alltrack) were tendered. A joint expert report following a conclave between the experts was also tendered. The expertise of each of the experts was accepted. Mr Dohrmann is a consulting engineer and ergonomist who has worked in occupational health and safety since 1976. Mr Fairfax is qualified in aviation safety and safety science. Most relevantly for present purposes, he was the manager of Ground Safety for Qantas from 1983 until 1991 and had previously worked for Qantas in the Engineering Facilities Department which involved provision of ground support equipment for the service and maintenance of jet aircraft. He subsequently worked for Workcover. Dr Casey is a mechanical engineer who has also taught aerospace propulsion at undergraduate and postgraduate level for 16 years. He has a good working knowledge of commercial aircraft types, their systems and components.

The experts' joint views as to the suitability of the cable and connector appears from their answer as follows:

Question 1: Was the GPU equipment that the plaintiff used on the date of her accident appropriate for the Boeing 737 electrical power socket?

Answer: Yes, on the proviso that the bulge did not foul the hinge to any significant extent.

The experts considered the only applicable standard to be ISO 461, which deals with connectors for ground electrical supplies, and that the connector complied with the standard. The standard provides at clause 5.3.1.1, that for 6-pin plugs the force shall not be greater than 445N (approximately 45.4 kg).

It was common ground that the weight of the connector and cable that Ms Kay lifted on the night of the accident was approximately 9.5 kgs and not, as Ms Kay said 20 kg. The experts agreed that the level of force required to insert the connector into the socket was relevant to Ms Kay's injury. Mr Fairfax and Dr Casey considered that the fact that Ms Kay was working in an overhead position was also relevant to the cause of her injury.

Dr Casey explained that because there is no latch that mechanically connects the connector to the socket, the joint between the two parts is dependent on the friction between the two holding them together. This friction prevents the connector from dropping out of the socket. The friction must be overcome with manual force when the connector is pushed into the socket to achieve a connection. Mr Dohrmann opined that the connector normally slotted in readily to the socket.

Dr Casey considered that if the bulge was problematic because it fouled the hinges on Boeing 737's and only Boeing 737's were serviced at Bay 33, it would have been prudent to ensure that the bulge on the connector at that bay was oriented so that it was suitable for these aircraft.

The experts considered that it was possible that people who were taller or stronger than Ms Kay would be able to insert the connector into the socket without incident, even if the bulge was on the right hand side and met with some additional resistance through contact with the hinge on the hatch door.

The experts identified provisions in the Occupational Health and Safety Regulation 2001 (NSW) that imposed a duty on employers to eliminate risks arising from manual handling or provide a means of modifying the risk. The experts considered whether Jetcare ought to have provided steps to assist persons such as Ms Kay to gain access to aircraft components that were otherwise beyond their comfortable reach. Mr Fairfax considered that steps ought reasonably to have been provided to Ms Kay. However, Mr Dohrmann considered that provision of steps or a ladder would have been unnecessary or contraindicated by reason of the following three matters: first, the practice of moving close to the aircraft when the aircraft was still moving; secondly, the lack of need for height adjustment where low force or only coarse manipulation was required and thirdly, the availability of alternative solutions.

Dr Casey explained, uncontroversially, that it is much more difficult to apply large forces above one's head than, say, at chest level.

Mr Fairfax and Dr Casey considered that if Jetcare was aware of the specific difficulty encountered by Ms Kay, having regard to the difference between her height, 1.5m, and the height of the socket above ground, 1.8m, Jetcare should have provided a set of steps or a ladder.

Mr Dohrmann explained the physical mechanism of the injury suffered by Ms Kay as follows:

"At the shoulder, between the deltoid muscle and the acromion, there is loose connective tissue, within which is located the sub-deltoid bursa. When the arm is abducted or flexed, part of the rotator cuff, as well as the sub-acromial bursa are compressed under the acromion. If the movement is continued or done with moderate force, it can cause inflammation and swelling of the fascial tissue, tendon and the bursa. Pain and limitation of motion can follow. The inflammation of the tendon may subside, but the resultant fascial and bursal inflammation can persist, causing stiffness and limited movement of the shoulder."

He also said that it is well-known that overhead lifting can result in shoulder injury which may result in permanent functional disability. He considered that Ms Kay was placed at risk of injury because she was required to lift a significant weight to a height above her shoulder and had to use considerable force to insert a connector into a socket in what should have been a routine operation.

I accept the analysis of Mr Fairfax that because of Ms Kay's height, every time she inserted the connector into the socket she was at the extremity of her reach if not using a set of steps to gain additional height. Mr Fairfax said that in his long experience of working in aviation, sets of steps have always been used at airport terminals.

The experts agreed that it was not Alltrack's responsibility to maintain the aircraft socket. They answered in the negative question 21:

Have you been briefed with any evidence to suggest that the most recent preventative maintenance work carried out by Alltrack prior to the incident required or involved an inspection of any aircraft receptacles or sockets?

Causation

There is a substantial factual issue of causation in the instant case. The defendants contended that Ms Kay had not established that her injury was caused by any additional friction caused by the impact of the bulge on the hinge of the aircraft hatch. Jetcare (and Ms Kay) contended that the real cause of the injury was the bulge being on the wrong side and that there was no need to provide steps since Ms Kay had been able to perform the task of connection up until the time of the accident without injury.

The plaintiffs bear the onus of proof of all facts relevant to the issue of causation: s 5E of the Civil Liability Act 2002 (NSW). The general principles applicable to causation are set out in s 5D. They include a requirement for factual causation as well as "scope of liability" which refers to the appropriateness of extending a person's liability to the harm caused. I am indebted to Allsop P for his Honour's consideration of the principles and their genesis and the recent cases in Zanner v Zanner [2010] NSWCA 343 at [1]- [12].

The distinct nature of the two questions, factual causation and scope of liability, was explained by the High Court in Wallace v Kam [2013] HCA 19 at [11]-[16] and Adeels Palace v Moubarak [2009] HCA 48; 239 CLR 420 at [41]-[45]. I propose to address factual causation first. The issue of "scope of liability" will be addressed below when I consider the liability of the parties.

Factual causation

I accept Ms Kay's evidence that one of the aspects of the task of connecting the connector to the aircraft that made it difficult for her was that she was required to do it overhead and that it would have been easier had she been able to do it at head height because of the better vision it would have afforded and also because she would not have had to position her arms at such an angle to reach the socket.

Ms Kay gave evidence that her workplace was dominated by men, most of whom were taller and of a bigger stature than she is. Although she was able to connect an aircraft to a GPU, it was difficult for her to do so at any time, even when the bulge was on the correct side. The two reasons for that difficulty were the relative force required to overcome the friction referred to above and her height, which required her to reach over her head and therefore required her to exert more force than had the connector been parallel to the ground when she inserted it into the socket.

The plaintiffs have established that the GPL in Bay 33 had the bulge on the wrong side. I am satisfied that this had the effect that greater force was required to obtain an electrical connection than had the GPL been correctly configured for the NG aircraft with the bulge on the left. Indeed, Ms Kay was unable to overcome such friction on the night of her accident and had to desist as a result of the injury she sustained. I do not regard it as significant, much less determinative, that she did not appreciate at the time that the bulge was on the wrong side and that this accounted for the particular difficulty of the job.

I accept the opinion of the experts that greater forces are required to obtain a connection when the person endeavouring to insert the connector into the socket is working overhead.

The defendants referred to what has become known as the "sequence of events" reasoning, which was exemplified in Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538 and contended that it was not available in the present case. In that case a worker performed two strenuous tasks and then collapsed and died of coronary thrombosis. There was expert evidence, which was accepted by the arbitrator, to the effect that death from coronary thrombosis could not generally be related to exertion. The Supreme Court of South Australia overturned the arbitrator's finding, and the employer appealed to the High Court. The High Court dismissed the appeal. Rich ACJ said, at 563-564:

"I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology. When he finds that a workman of the not-so-young standing attempts in a posture calculated by reason of the pressure on the stomach to disturb or arrest the rhythm of the heart a very strenuous task not forming part of his ordinary work and then collapses almost immediately and dies from a heart condition, why should not a court say that here is a strong ground for a preliminary presumption of fact in favour of the view that the work materially contributed to the cause of death?"

This dicta has been subsequently been distilled into the proposition that an inability to call lay or expert evidence that shows the precise way that something has happened is not fatal (see Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 at 317 per Mason P). In Forst's Case the mere description of what the plaintiff was doing when he collapsed and later died, was sufficient to give rise to the presumptive inference of a causal link.

Honore & Hart, Causation in the Law, (2nd ed 1959, Clarendon Press) at 408 refer to the type of enquiry in Forst's Case as an "explanatory inquiry", since the task of the court is to discover the cause or causes of a physical event. This is to be distinguished from a failure to warn case (or indeed most negligence cases) where the inquiry is referred to as a "hypothetical inquiry".

The defendants submitted that the presumptive inference ought not be drawn in the instant case because there were other inferences available to explain the cause of the accident and the strength of the inference that B (the plaintiff's injury) was caused by A (the bulge being on the wrong side) was affected by the number of times that B has been seen to follow A in the relevant factual context: X and Y (by her tutor X) v Pal (1991) 23 NSWLR 26 at 33 per Mahoney JA.

As to the first matter, Mr Lloyd relied on the following expert opinion in support of the proposition that there were other inferences available:

Question 8: Was this accident caused by a failure to ensure that the equipment was properly maintained?

We do not have enough information to answer this question. Within the information that is currently available there is conflicting information as to the role of the bulge on the plug and whether or not, it fouled the hinges on the doors to any significant degree. If the bulge did not foul the hinges to any significant degree then we believe that this accident was not impacted by the plug's maintenance.

There are other possible explanations for this accident which do not relate to the bulge on the plug, namely the overall weight of the plug and wires as they are supported, the force required to insert the plug into an aircraft electrical power socket and the operator's posture at that time. These explanations are not related to the plug's maintenance.

As to the second matter, Mr Lloyd submitted that there is no evidence that Ms Kay had not had to exert that level of force previously to insert a connector into a socket and indeed, having regard to her work and the preponderance of faulty connectors, one could infer that she had previously been able to achieve a connection to ground power notwithstanding that the bulge was on the wrong side.

The question whether an inference of causation ought be drawn is a question of fact in respect of which expert evidence is relevant and admissible. The inference of causation in the legal sense is a deduction from the evidence: Seltsam Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [79]-[88] per Spigelman CJ.

Mahoney JA's observation in X and Y (by her tutor X) v Pal above about the limitations of the "presumptive inference" were made in the context of proceedings where the issue was whether the mother's syphilis caused her child's dysmorphia and mental retardation and the expert evidence failed to establish a causal connection. I regard the present case as being in a different category. That a shoulder injury can be caused by exertion, particularly where the upper limb is extended overhead was accepted by the experts. Whether Ms Kay was actually injured by reason of the additional force required to overcome the extra resistance created by the bulge being on the wrong side is a question of fact, not one of expert opinion although expert opinion can assist in determining the question of fact. In X and Y (by her tutor X) v Pal, the presumptive inference was obviously inappropriate because dysmorphia and mental retardation are caused by many other conditions than syphilis. However the presumptive inference does, in my view, have a role in the present case.

That others were not injured, or would not have been injured had they been required to insert the connector at Bay 33 that day, is not determinative. That Ms Kay may well have effectively inserted a connector with a bulge on the right in the past is also not determinative. I do not accept Mr Lloyd's submission that the absence of injury from incorrectly configured connectors points strongly away from the inference of causation. Ms Kay's injury was an accident of the kind which might have been, even was likely to have been, caused by her height and lack of physical strength. There is no sufficient reason to conclude that she would have been injured even if the bulge had been on the correct (left) side. Indeed the presumptive inference is, in my view, available that she injured herself precisely because she was required to exert more force than would have been necessary had the bulge been on the correct side.

I do not regard the present case as substantially different from one where a worker is required to lift a weight which is accepted to be too heavy to safely lift by hand. An inference can be drawn if a worker is injured when lifting the weight that it was the heaviness of the weight that caused the injury, even where the worker has, and other workers have, previously lifted that same weight without sustaining injury. It is not regarded as necessary in such a case specifically to adjudge whether the worker would have been injured on that day if required to lift a weight of, say, half the mass of the subject weight since the presumptive inference is available to be drawn.

In the answer set out above, the experts postulated other causes for Ms Kay's injury. However, I regard these other possible causes as speculative and not sufficient to displace the inference that it was the additional resistance created by the bulge which caused (in the sense of making a material contribution to) Ms Kay's injury. It was not, however the only cause.

In my view the injuries sustained by Ms Kay were as a result of two immediate causes:

(1) the additional force on her body and particularly her shoulder because she was working overhead; and

(2) the additional force she was required to exert to get a connection because the bulge was on the wrong side.

The forces referred to in (1) above could have been reduced had Jetcare provided stairs to elevate Ms Kay so that she would not have to work overhead. The additional force referred to in (2) above would not have been required had the connector been properly assembled. Had Jetcare inspected the GPLs prior to the accident, as it did subsequently, it would have discovered the incorrect configuration and it would have been rectified by reporting the default to SACL, who in turn would have informed UGL who would have required Alltrack to correct it (as in fact happened subsequently). Had Alltrack assembled the GPL correctly, the additional force would not have been required.

Whether the respective parties had a duty to take the precautions referred to above which would have averted the accident and whether, if so, it is appropriate that their liability extend to Ms Kay's harm will be addressed below.

Liability

The risk of harm

The relevant risk of harm for the purposes of the Civil Liability Act 2002 is the risk that someone would suffer physical injury when inserting, or endeavouring to insert, the incorrectly assembled connector into the socket by reason of the additional force required.

Potential liability of Jetcare

The role of Jetcare is relevant to calculations under s 151Z(2)(c) and (d) of the Workers Compensation Act 1987 (NSW). It is accordingly necessary to determine its notional liability, had it been sued in negligence by Ms Kay.

The nature and extent of an employer's duty of care to its employees is well established. It is a non-delegable duty and derives from the degree of control exercised by the employer over the workplace and welfare of the employee. In Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 Mason J said at 687-688:

The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has not choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken.

The duty of care an employer owes to its employees extends to the safety of equipment, which includes a duty to ensure that it is inspected from time to time so that reasonably detectable defects can be identified and rectified: TNT Australia Pty Limited v Christie [2003] NSWCA 47; 65 NSWLR 1 at [50] per Mason P, citing Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; 200 CLR 121 at [102] per Kirby J.

The question is what a reasonable person in Jetcare's position would have done to take precautions against the risk of harm as set out above. For the following reasons I consider such a person would have provided steps for workers to use to insert the connectors into the sockets, inspected the equipment to see whether it had been correctly assembled and, if it was necessary to insert an incorrectly assembled connector into the socket to connect an aircraft to ground power, permit only relatively strong workers to perform the task, and warn them that greater force would be required to make the connection.

There was no evidence to establish that the burden of providing steps or inspecting equipment generally would have been particularly onerous for Jetcare. Indeed Jetcare did not adduce any evidence of a system of inspection.

Although Mr Dohrmann expressed some reservations about the provision of steps, neither of the other two experts considered there to be any practical impediment to their provision and use to assist a worker to perform such a task. I am satisfied that if Jetcare had provided steps to Ms Kay she would have used them. Indeed it was not suggested to the contrary.

I consider that the duty of care that Jetcare owed to Ms Kay required it to provide a set of steps for her to use when inserting the connector into the socket of the aircraft. Its failure to do so exposed her to a foreseeable risk of injuring her shoulder by having to lift a weight above her head. Although an alternative would have been to prevent persons of such stature from performing that role, I do not consider this to be reasonably required since it would effectively prevent those of such stature from occupying such positions and invite invidious comparisons between the relative strengths and heights of each sex and the relative heights of different racial and ethnic groups or individuals.

I consider that the duty Jetcare owed to Ms Kay and its other employees to take reasonable care for their safety required it to inspect and test the equipment that they used in the course of their duties to ensure that it was suitable for the task. It was not enough, in my view, to leave it to the employees themselves to report any problems that they came across when performing the tasks since their concentration on the specific task and the speed with which they were required to perform some tasks would tend to compromise their capacity to notice problems with the equipment. I do not regard it as an answer that the connector could be forced into the socket and establish a connection to the ground power if sufficient force was used since the force required was such as to damage the integrity of the shroud around the connector and expose the worker to the risk of injury occasioned by the greater force required.

By failing to provide steps and by requiring her to use a GPL which reasonable inspection would have revealed to be defective, Jetcare failed to take reasonable care to avoid exposing Ms Kay to unnecessary risks of injury.

The defendants also relied on Jetcare's failure to warn Ms Kay of the risk of injury if she used a GPL with the bulge on the right. In my view Jetcare ought not to have required its employees to connect an aircraft with the bulge on the wrong side because it exposed them to an unnecessary risk of injury. However, if an aircraft had to be connected to ground power before the defect could be rectified, Jetcare was, in my view, obliged to warn an employee that greater force would be required because of the incorrect configuration.

The incorrect configuration was not an obvious risk within the meaning of s 5F of the Civil Liability Act 2002. Although the asymmetry could be detected on close inspection, the attention of the maintenance engineers was not directed to it. I accept that their attention was focussed on the configuration of the pins so that they could insert the connector into the socket the right way around. That the defect went undetected for a considerable period by persons who were familiar with the use and operation of such equipment, and who in fact used it, is powerful evidence of its not being an obvious risk. In the circumstances of this case, I do not accept that Jetcare could have fulfilled the duty of care that it owed to Ms Kay by warning her that greater force would have been required, since her strength was not great relative to that of other workers, such as Mr Maguire, and she ought not to have been required to exert herself to overcome the increased resistance.

Jetcare was Ms Kay's employer. As such it had a particular duty to take reasonable care to safeguard her from physical injury. It was in a position to inspect the equipment. It knew of her stature and the conditions in which the task was to be performed. I consider that it is appropriate that responsibility for the harm ought be imposed on Jetcare in accordance with s 5D and that the damages ought be adjusted accordingly.

The question of apportionment will be considered after contributory negligence and the liability of the defendants has been addressed.

Contributory negligence

Section 5R of the Civil Liability Act 2002 provides that the principles applicable in determining whether a person has been negligent are also applicable in determining contributory negligence. The standard of care required is that of a reasonable person in Ms Kay's position and is to be determined on the basis of what she knew or ought to have known at the time.

The defendants relied on the majority's (Basten and Emmett JJA's) construction of s 5R of the Civil Liability Act 2002 in Boral Bricks Pty Limited v Cosmidis (No. 2) [2014] NSWCA 139 and in particular the following passage from the reasons of Basten JA at [99]- [100]:

Assuming that the requirement that people should take responsibility for their own lives and safety is now reflected in s 5R, and was intended to override the approach of Murphy J in Watt, there is a question as to whether the statements in Talbot-Butt still reflect the law in this State. The potential dangerousness of heavy machinery and fast vehicles can no doubt be applied universally, although the consequence of its application will vary depending on whether one, both or neither party is in control of such a vehicle. On the other hand, applying the general principles in s 5B(2) one could approach the matter differently. Thus, the probability that harm would occur if care were not taken and the likely seriousness of the harm would operate differentially with respect to the driver of the forklift and the pedestrian, but with the same result. That is, no distinction is made between the fact that in from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, whilst from the perspective of the pedestrian, it was the likelihood of serious harm which was to be considered. If the plaintiff were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware, of the likely presence of pedestrians, and if each were equally careless, liability should be shared equally.

A purposive approach to the operation of s 5R (and s 5B) requires that this approach be adopted.

I do not consider that the construction of s 5R in Boral Bricks v Cosmidis (No. 2) leads to the conclusion that Ms Kay was contributorily negligent. While it may be accepted that a pedestrian ought appreciate the harm that contact with a forklift may cause, I do not consider that Ms Kay was unreasonable in persisting in a task that required resistance to be overcome to perform it, even where the connector had been correctly configured.

Ms Kay explained in her evidence that she persisted in trying to insert the connector into the socket because the engines of the aircraft were running and she was focussed on getting the connection so that the aircraft could switch its engines off and the passengers could disembark. Although she admitted in cross-examination that if there was a problem with inserting the connector into the socket, it was a good idea to stop to see what the problem was, I am not satisfied that this answer was not affected by hindsight.

The evidence which I have accepted that greater force was required to insert a connector which had been incorrectly assembled tends to suggest that a worker who was trying to insert a connector would have appreciated the requirement for greater force and would reasonably have realised that something was wrong and desisted from the task. However, I do not consider this is be a reasonable conclusion to draw. As the evidence set out above shows, there was a range in the force required to connect even properly configured connectors which depended on the length of time in service and whether the pins were as straight as they had been when new. Furthermore it was a task that was performed, as Jetcare and Alltrack would have known, under time constraints which would reasonably lead a person in Ms Kay's position to persist in the task rather than desist to ask for assistance or make further investigations.

Mr Maguire's evidence is also probative. He did not notice that the bulge was on the wrong side and nor, to his knowledge, did any other worker. The evidence of how many GPLs had been incorrectly configured and for what period they had been in service indicates that many workers would have pushed them into the aircraft, notwithstanding the need for greater force, without realising the reason for the need for greater force.

In these circumstances I am not satisfied that Ms Kay contributed to her injuries by failing to take precautions against the risk of that harm. She could not use any steps since none was provided. It was not unreasonable of her not to notice that the bulge was on the wrong side or to persist in the task when she met with resistance. The defendants' submissions as to why contributory negligence ought be found against Ms Kay are in my view reasons for assessing Jetcare's portion of liability as being much higher than Alltrack's. They do not however persuade me that she was guilty of contributory negligence.

Liability of UGL

There is no privity of contract between Jetcare and UGL. The parties to the UGL contract were SACL and UGL. UGL effectively purported to subcontract its obligations to SACL under the UGL contract to Alltrack. However, the plaintiffs rely on the terms of the UGL contract as relevant to the duty of care owed by UGL to Ms Kay and therefore it is necessary to address them.

Under the contract, UGL was required to carry out the "Services" (as defined). By cl. 2.3(e) it warranted that it would, without limiting any of its other obligations:

(i) exercise (and ensure that its subcontractors exercise) the standard of skill, care, diligence and innovation in the performance of the Services that would be expected of an expert professional provider of the Services;

(ii) ensure that the Services are fit for their intended purpose; and

(iii) ensure that the Assets meet any requirement relating to the performance of the Asset set out in this Contract.

Clause 8.7, which concerns subcontracting, provides that UGL:

(a) must not without the prior written approval of SACL's Representative, which will not be unreasonably withheld, subcontract any work described in the Contract Particulars except to a subcontractor named in the Contract Particulars, or otherwise approved by SACL;

(b) will be fully responsible for the Services despite subcontracting the carrying out of any part of the Services;

(c) will be vicariously liable to SACL for all acts, omissions and defaults of its subcontractors (and those of the employees and agents of its subcontractors) relating to, or in any way connected with, the Services.

Clause 8.8 which governs co-ordination of subcontractors provides that UGL must:

. . .

(b) provide and direct all necessary personnel to administer, supervise, inspect, co-ordinate and control the subcontractors engaged by it;

Part E of the Specification sets out the technical requirements in respect of building electrical systems to be performed on the Contract buildings including preventative maintenance (PM). The so-called PM items include the GPUs. The PM tasks are defined by reference to the periods at which they are to be undertaken. The annual PM and 2-monthly tasks to be carried out on GPUs include relevantly:

Check rubber seals

Visual check of all components

Check secondary cables and plugs

Insulation test on secondary cables

Mr Cummings SC, who appeared on behalf of UGL, contended that its obligations under the UGL contract did not give it any control over the workplace or the system of work. UGL's primary submission was that it did not owe a duty of care to Ms Kay. It sought to distinguish its position from that of the appellant in Adeels Palace v Moubarak, which was addressed by the High Court at [23]-[26].

I do not accept this submission. I consider that UGL's responsibilities to SACL, who was relevantly the occupier of the airport, to maintain the ground equipment at the airport, gave rise to a duty of care to those who used the equipment which it had a contractual duty to maintain. In my view the duty required UGL to take reasonable care to perform the maintenance itself or to engage a reputable contractor to perform such maintenance.

The evidence established that Alltrack was a well-qualified contractor which had been performing the same job at Sydney Airport before the UGL contract was entered into. That UGL would be liable to SACL for any breach by Alltrack of its contractual obligation to maintain the equipment is a matter of contract, not of tort. That circumstance does not make the duty of care in tort non-delegable. Indeed it could not reasonably be contended that the duty of care that UGL owed to Ms Kay was non-delegable (Cf. Kondis v State Transport Authority(1984) 154 CLR 672 at 679 per Mason J, Deane and Dawson JJ agreeing).

The plaintiffs contended that because the precise terms of the contract between UGL and Alltrack were not established by the evidence (it being an oral contract which was based on a course of conduct), UGL had not established that it had in fact delegated the duty of care that it owed to Ms Kay to Alltrack. They relied on what Hodgson JA said in Bevillestra Pty Limited v Liberty International Insurance [2009] NSWCA 16 at [53] and [60] of the purported delegation by an occupier to a cleaner:

[53] Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps.

...

[60] In the absence of evidence as to instructions given to cleaners and security personnel and absence of evidence as to actual practice, the Court is left in a position where it just does not know what was the role of the cleaner and what was the role of the security guard and perhaps others in relation to the detection of spillages; or how the reduction in personnel impacted on the question of detection of spillages as opposed to other services provided by the cleaner.

Although the contract between Alltrack and UGL was not in writing, its terms were, in my view, sufficiently established by the evidence. Alltrack was obliged to perform all requisite preventative and unscheduled maintenance on certain items of equipment at the airport that included the GPUs.

The evidence established that UGL issued a work order to Alltrack, which would perform the work and issue an invoice to UGL, which would pay the invoice. In that way, UGL controlled the maintenance required and the payment for the work done by Alltrack which was described in the invoices. I reject the plaintiffs' submission that there was a "gap" between what UGL undertook and what Alltrack undertook. No such gap has been established.

I am not satisfied that a reasonable person in UGL's position would have taken any precautions other than to engage a reputable contractor to perform the work and monitor it administratively (by documents and payment arrangements): see generally Bevillestra Pty Limited v Liberty International Insurance per Hodgson JA at [52]-[57] (Gyles AJA and Nicholas J agreeing) and Transfield Services (Australia) Pty Limited v Hall; Hall v QBE Insurance (Australia) Pty Limited [2008] NSWCA 294; 75 NSWLR 12 at [54] per Campbell JA, Beazley JA agreeing. The work involved specialised tasks, for which expertise was required. There was no suggestion that UGL had, or that Alltrack lacked, the technical expertise to carry out the tasks required of UGL under the UGL contract. Nor did it have any control over Ms Kay's conditions of work or whether the equipment was inspected or tested by Jetcare. Accordingly, on general principles and by reason of s 5B of the Civil Liability Act 2005, UGL is not negligent.

For these reasons, I am satisfied that UGL discharged its duty of care, which was delegable, to Ms Kay by engaging Alltrack to perform the maintenance work on the GPLs attached to the GPUs on the Virgin bays. It did not owe any residual non-delegable duty to Ms Kay. Accordingly it is not liable to Ms Kay and is not liable to Jetcare on its claim for an indemnity.

As I have found that UGL is not liable, it is not necessary to address UGL's submissions further. However, Mr Cummings made detailed submissions on causation on behalf of UGL, which were adopted by Alltrack. I shall refer to them as the defendants' submissions.

Liability of Alltrack

The plaintiffs' case was against Alltrack in substance that:

(1) Alltrack had a practice of assembling the connectors with the bulge on the left and that this practice continued until about 2005;

(2) When work was done on the connector to the GPU in Bay 33, a technician engaged by Alltrack assembled the connector with the bulge on the right, which was the "wrong side" and amounted to a casual act of negligence for which Alltrack was liable;

(3) When Ms Kay tried to connect the connector to the socket on 2 April 2006 she could not do so because the bulge was on the wrong side and the additional exertion required caused her injury.

Alltrack's defence was:

(1) Although individual technicians might have had particular practices when assembling connectors, there was no direction given to them by Alltrack as to how the connectors for the GPUs in Virgin's bays in Terminal 2, including Bay 33, ought be assembled;

(2) It did not matter how the connector was assembled when the connection plugs were in a vertical configuration (two columns of three) rather than a horizontal configuration (two rows of three) because the bulge was, in that event, either on the top or on the bottom and would not impinge against the hinge of the hatch;

(3) Alltrack had designed the connector in accordance with the international standard (ISO 461) and the assembly at all times complied with the standard in that the connection could be achieved with the bulge on the right, albeit that there was friction between the hinge and the bulge that meant that greater force was required to achieve the connection.

(4) Alltrack was not told by Jetcare how the aircraft sockets were configured and could not be expected to know, or find out, how they were configured and had no reason to know that it was preferable to assemble the connector so that the bulge was on the left side so as to avoid friction with the hinge of the hatch.

(5) Jetcare had not, at any time prior to 12 April 2006, informed Alltrack that its workers were experiencing any difficulty in inserting the connector into the socket and no scuffing of the bulge had been brought to Alltrack's attention so as to put it on notice that it was incorrect to assemble the connector with the bulge on the right.

(6) Accordingly there was no foreseeable risk of harm if the bulge was positioned on the right rather than the left.

(7) Alltrack was required to do work on parts for several types of aircraft, including for SACL at Sydney Airport and on aircraft operated by the Department of Defence. It would be unreasonable to expect it to inspect the aircraft into which the parts it assembled would be put to ascertain the precise configuration of the aircraft. Any aircraft could, effectively, park in any bay and that because the arrangement whereby aircraft were connected to ground power was not standard, it could not reasonably be expected to make a prediction as to which side of the connector the bulge should be located when it assembled it in its workshop.

(8) Because Jetcare's responsibility was so great relative to Alltrack's, Alltrack should be regarded as being no more than the vehicle which created the opportunity for the employer's breach to occur: Environment Agency (formerly National Rivers Authority) v Empress Car Co. (Abertillery) Limited [1999] 2 AC 22 at 31.

In my view, Alltrack owed a duty of care in 2006 to persons who used the GPLs that it maintained at Bays 31-40, to ensure that it assembled the bulge on the connector to the left so that the shroud did not come into contact with the hinge on the door, which had the effect of diminishing the useful life of the connector because of the inevitable abrasion and increasing the amount of force required to make the connection. I reject the argument that it fulfilled the duty merely by ensuring that the connector conformed to the relevant international standard. The purpose of the connector was to connect NG aircraft to ground power. Its purpose was compromised when there was contact between the bulge and the hinge. Reasonable care required Alltrack to orient the bulge so as to avoid such contact.

The risk of harm, being injury to a worker who was required to use extra force, was, in my view, reasonably foreseeable by Alltrack, notwithstanding the long use and lack of complaint. Although the risk had not ensued prior to Ms Kay's accident despite many connectors being incorrectly configured, I do not regard the risk of harm as insignificant. A reasonable person in Alltrack's position would have taken those precautions.

The factors listed in s 5B(2) of the Civil Liability Act must also be considered. Although the probability that harm would occur if care were not taken was relatively low having regard to the number of uses and the lack of complaint or earlier incident, I consider that it was a matter of time before someone such as Ms Kay was injured because the exertion required to overcome the extra resistance was too great for her. The likely seriousness of the harm was moderate. The burden of taking steps to avoid the risk of harm was not, in my view, particularly great. Alltrack held itself out as having the requisite specialist expertise. Although it maintained several types of aircraft for several airlines, I consider that its duty of reasonable care required it to acquaint itself with the physical attributes of each to ensure that the parts were configured in a way that suited the particular aircraft on which they were to be used or installed. I do not regard the experts' unanimous answer to questions 1 and 21 in the joint report as foreclosing this finding, which involves an application of the law.

The activity that created the risk of harm is aircraft maintenance and operation. Such maintenance needs to be done reasonably efficiently and cost-effectively for the benefit of the travelling public. I regard the social utility of this activity as being considerable. If parts are properly configured the tasks to be performed can be done as expeditiously and efficiently as possible without exposing the participants to avoidable risk of injury. Furthermore I infer that the useful life of the connectors was reduced when the bulge was on the wrong side because of the additional force required to make the connection and the consequent increase in wear and tear occasioned by contact between the shroud and the hinge.

For these reasons Alltrack was negligent when it configured the GPL at Bay 33 in February 2006 so that the bulge was on the right.

I consider that it is appropriate that the scope of Alltrack's liability extend to the harm caused to Ms Kay. I reject its submission that its conduct merely provided the occasion for Jetcare's breach. Responsibility for the harm should be imposed on it, subject to apportionment which will be considered below.

Apportionment

The determination of the relevant contributions of tortfeasors, or putative tortfeasors, is an exercise of discretionary judgment that requires the Court to assess the relative culpability and causal potency of their negligent acts: Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; 59 ALJR 492 at [8] and [10].

On the one hand Jetcare failed, as I have found, to take account of Ms Kay's stature, the effects of which could have been ameliorated by the provision of steps. It had no system of inspection for the GPLs such as would have revealed the problem and alerted Alltrack to the need to ensure correct assembly and reconfigure incorrectly assembled connectors. On the other hand, Alltrack ought to have known that the bulge should have been on the left because of its specialised knowledge and experience, both generally and at Bays 31-40.

In my view, Jetcare's degree of culpability was significantly greater than Alltrack's and the causal potency of its negligence was also much higher. I assess Jetcare's relative contribution to be 75%.

Ms Kay has been able to continue living her life in a relatively uninhibited way. She has used the time both before and since the termination of her employment to retrain and applied her newly gained skills for her personal advantage by project managing her own home. I note from the video surveillance that it is a substantial, apparently high quality, residence with impressive landscaping and an unorthodox and striking design and use of materials. I consider that once these proceedings have concluded she will probably engage in remunerative employment, either as an employee, on her own account or as part of her uncle's business.

I infer from Ms Kay's abandonment of her claim for gratuitous assistance that she is largely unhindered in her domestic activities. The video surveillance showed her as active and unimpaired physically, and interactive and cheerful from a social point of view. She slipped in and out of the BMW convertible that she purchased new in January 2011 without any apparent impairment. She was not shown to do anything which it is agreed she cannot do, such as lifting weights overhead or lifting significant weights, but she was able to do more than her share of carrying picnic items and closed the lid of the boot of her car with apparent ease. She was also able to sit for long periods both on a supported canvas chair and on the ground without any apparent discomfort. She was also able to lift her right arm above shoulder height.

The level of function and movement that Ms Kay exhibited on the video which was taken on 17 January 2012 was substantially greater than she was prepared to demonstrate either to Dr Gliksman on 30 January 2012 or to Dr Sonnabend on 24 January 2012.

I assess her non-economic loss as 30% of the worst case which is equivalent to $127,000.

Economic loss

It is common ground that Ms Kay's past economic loss to 31 July 2009 is $70,000 (being the difference between what she actually earned with Jetcare and what she would have earned had she not been injured).

The difficulty with assessing economic loss after that date is that, for the reasons given above, I am not satisfied that Ms Kay has seriously attempted to obtain remunerative employment since the termination of her employment, although she has been assiduous in obtaining suitable qualifications and experience. Furthermore I am not satisfied that, but for the injury, Ms Kay would not have retrained in another field in order to equip herself for a less-physically demanding career for the second part of her working life.

Furthermore she has spent a considerable time since her accident engaged in project managing her own home which has been, I assume, to her financial advantage. Her resume suggests a substantial earning capacity.

It is common ground that Ms Kay has a residual earning capacity. Mr Kelly SC, who appeared on her behalf, submitted that she has a residual earning capacity of between one third and one half of her pre-accident earning capacity. The defendants submitted that I should find that her loss of earning capacity after 31 July 2009 is of the order of $500 net per week.

The defendants have identified two possible job options: first, an engineering manager or avionics maintenance planner with a range in the order of $2,000 to $2,300 per week; and secondly, a project manager, with a salary range in the order of $1,350 to $1,730 per week. I consider both occupations to be within Ms Kay's physical capacity and qualifications. Although it appears to be more likely that she will be in business on her own rather than work as an employee, this evidence is some indication of what her earnings would be in the latter capacity.

But for the accident, I consider that Ms Kay's most likely future circumstances would have involved her making a transition to full-time property development, perhaps in her forties, fifties and sixties when it was likely that the physical work associated with being an aircraft maintenance engineer would become too onerous for her. Because of the nature of her work as a LAME, which involved shift work, she may well have been able to run those two careers in tandem for a period. The evidence is insufficient to perform a calculation of her economic loss with any degree of precision. The accident has deprived her of the physical capacity to continue with her first career. However, it does not, in my view, impede her capacity to earn income in the other avenues which I have found are open to her and would probably have been pursued by her in the long term in any event.

In these circumstances I accept the defendants' submission that a buffer of $500 per week is appropriate for the period from 1 August 2009 to the date of this judgment for the past, and a buffer of $500 per week for the future until Ms Kay reaches the age of 55. I do not consider that she would have been able to work as an aircraft maintenance engineer beyond that age but for the accident because of the difficulties she encountered in her thirties doing the heavier tasks associated with that occupation. Accordingly, I am not satisfied that the injuries she sustained in the accident will be productive of economic loss beyond that age. The discount of 15% ought be applied to the amounts for future economic loss.

The agreed percentage of 11% for past superannuation ought be applied to the figure for past economic loss and 14% for the future.

The Fox v Wood component is agreed at $42,375.

Damages for domestic assistance

As noted, Ms Kay abandoned her claim for damages for this head, both as to the past and the future.

Summary of damages

I note that the parties have asked me to make findings on damages in order that short minutes can be prepared after calculations have been performed based on my findings.

Ms Kay's claim for damages

I have reduced the numerical aspects of these findings in respect of Ms Kay and included them in the following table with the agreed figures.

Head of damage
Amount
Non-economic loss (30%)
$127,000
Out of pocket expenses (agreed)
$66,838
Future treatment (agreed)
$25,000
Past economic loss to 31 July 2009 (agreed)
$70,000
Past economic loss of $500 per week from 1 August 2009 to date of judgment
To be calculated
Future economic loss of $500 per week to age 55 less discount of 15% for vicissitudes
To be calculated.
Past superannuation (11% agreed)
To be calculated.
Future superannuation (14% agreed)
To be calculated.
Fox v Wood (agreed)
$42,375
Domestic assistance (agreed as abandoned by Ms Kay)
NIL
Sub-total
To be calculated.
Discount for contributory negligence
NIL
Sub-total (same figure as for sub-total above)
To be calculated.
Less s 151Z(2)(c) deduction on account of Jetcare's 75% responsibility
To be calculated.
Total damages under the Civil Liability Act 2002
To be calculated.

It is accepted that Ms Kay is precluded from recovering any amount from Jetcare because her permanent impairment has not been assessed as at least 15%: s 151H of the Workers Compensation Act 1987. Accordingly the only deduction applicable under s 151Z(2)(c) is 75% of the damages by reason of Jetcare's responsibility.

Jetcare's claim for indemnity

Jetcare has established its entitlement to indemnity against Alltrack, although not against UGL. Its entitlement to indemnity is reduced by the amount of its responsibility for the injuries to Ms Kay: s 151Z of the Workers Compensation Act 1987.

Defences: Limitation Act 1969

Alltrack alleged that Ms Kay's action against it is time-barred.

Ms Kay's cause of action against Alltrack accrued on 2 April 2006. Accordingly, subject to Division 6 of the Limitation Act 1969 (NSW), her claim became statute-barred on 2 April 2009.

Section 50C relevantly provides that a cause of action is not maintainable unless it is brought within three years of the cause of action being discoverable by the plaintiff. Section 50D relevantly provides:

Date cause of action is discoverable

(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:

(a) the fact that the injury or death concerned has occurred,

(b) the fact that the injury or death was caused by the fault of the defendant,

(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

It is common ground that the relevant fact for present purposes is "the fact that the injury was caused by the fault of Alltrack". The issue is whether the plaintiff knew or ought to have known that fact prior to 20 September 2009, being a date three years before Alltrack was joined to the proceedings. Alltrack bears the onus of establishing that the cause of action was discoverable before that date: see the authorities referred to by Beazley JA at [26] in State of New South Wales v Gillett [2012] NSWCA 83.

The chronology of the knowledge of Ms Kay and her solicitor concerning Alltrack

In about February 2009, Ms Kay instructed Slater & Gordon, a firm of solicitors, to act on her behalf. Michelle Allard, a solicitor, initially took instructions from Ms Kay. The statement of claim against SACL was filed on 27 March 2009. Relevantly it contained the following particulars of the negligence alleged in [6]:

"Dismantling a power plug and putting it back together in a "back to front" configuration." ((ii))

"Failing to carry out maintenance on plant and equipment including the power leads and plugs in a proper and workmanlike manner." ((iv))

SACL filed its defence on 17 April 2009 and its cross-claim against UGL on 2 July 2009. On 24 June 2009 a subpoena was issued to UGL at the request of SACL. The schedule to the subpoena required production of the following documents:

All documents relating to any work whatsoever performed upon the 400Hz ground power unit/s located in Bay 33 of Terminal 2 of Sydney Airport, for the period 1 January 2006 to 30 June 2006, pursuant to the Contract No 704 for Comprehensive Facilities Maintenance between United Group Services Pty Ltd and Sydney Airport Corporation Limited.

UGL produced documents in answer to the subpoena on 28 July 2009.

There were two categories of documents produced: work order lists and invoices issued by Alltrack to UGL. Among the invoices produced was an invoice dated 14 February 2006 that recorded that Alltrack was called out to Bay 33 on 9 February 2006 and identified that there was a cable fault which required the cable to be replaced. Another invoice of the same date charged for "cable assembly". Of perhaps greater significance is the invoice dated 12 April 2006 which recorded a call-out to T2 on that day, and which is set out in full above in the section dealing with Jetcare's investigation of the cause of Ms Kay's accident.

Alltrack issued a further invoice to UGL dated 1 May 2006 for the removal and replacement of the ground power socket at Bay 33.

Ms Kay was cross-examined about these invoices. She agreed that the invoices showed that Alltrack was the entity that was doing work on the GPUs and associated cables at Bay 33.

On 15 July 2009 Ms Kay and Mr McKenzie, her junior counsel, conferred with a solicitor from Slater & Gordon who was not Roshana May. At that conference Ms Kay was told that there was someone other than SACL who was responsible for ongoing maintenance at the airport, namely UGL.

Ms May took over carriage of the matter from Ms Allard at some time in July 2009. Ms May accepted in cross-examination that she appreciated from her review of the particulars of negligence in the statement of claim that the complaint in particular (ii) was essentially one against the person who had configured the plug in the "back to front configuration".

At some stage before swearing an affidavit on 15 September 2009 in support of Ms Kay's application to join UGL Ms May examined the documents produced on subpoena by UGL. She admitted that at that time the question of who had performed work on the cable at Bay 33 was "actively" and "upper most" in her mind. In the course of her cross-examination she explained that she conducted a "very detailed analysis" of the first six pages (the work order documents) but "not necessarily the Alltrack documents". Ms May accepted that documents produced in answer to a subpoena would be likely to be responsive to that subpoena and that as the schedule had specified work done on GPUs in Bay 33, it is likely that the documents produced related to such work.

Ms May was cross-examined about the invoice dated 14 February 2006. She accepted that she probably read it at the time but did not recall what she then understood by it. Ms May did not recall, when cross-examined, what she understood by the second invoice dated 14 February 2006 or what, if any, conclusion she drew as to whether the work was performed by Alltrack and what the relationship was between Alltrack and UGL.

When questioned about the invoice dated 12 April 2006, Ms May accepted that rotation of the moulding by 180 degrees was the very thing that Ms Kay was alleging had gone wrong on 2 April 2006.

Ms May said in evidence that she did not recall sending copies of the subpoenaed documents to Ms Kay and that it was unlikely that she would have done so.

An amended statement of claim was filed on 16 October 2009 which joined UGL to the proceedings as the second defendant.

On 7 July 2010 UGL, which had changed its solicitors, filed a General Case Management (GCM) Document which stated, at [1.3]:

"The second defendant is currently investigating as to whether there may be a basis for a cross-claim against a company known as Alltrack GSE Pty Limited."

On 4 April 2011 Alltrack produced documents on subpoena that included work orders addressed to Alltrack from UGL and tax invoices issued to UGL concerning the provision of maintenance services at Terminal 2, Sydney Airport. These documents had been among those produced on subpoena on 28 July 2009 referred to above.

On 4 May 2011 Ms May contacted UGL's solicitor to ask whether UGL intended to file a cross-claim against Alltrack.

On 9 February 2012, UGL served Mr Berry's statement dated 20 December 2011. This is the statement referred to above which was tendered by Jetcare and Ms Kay as constituting admissions against Alltrack.

Ms Kay's motion to join Alltrack as a defendant was listed on 7 May 2012. At that time UGL had not cross-claimed against Alltrack. Ms May filed an affidavit in support of the motion in which she deposed that she had applied to join UGL as a result of the documents produced on subpoena in July 2009 as a result of which it became apparent to her that there were work order lists directed to UGL to provide services in respect of preventative and corrective maintenance to SACL. She also deposed that, as a result of documents produced on subpoena by Alltrack on 4 April 2011, it became apparent to her that there were work orders directed to Alltrack from UGL and invoices from Alltrack to UGL regarding such work. Ms May deposed further:

"Prior to the receipt of the documents under subpoena from Alltrack GSE Pty Limited I did not have any clear indication that any other entity was involved in the maintenance of the equipment used by the plaintiff in the course of her work on or about 2 April 2006 when she was injured, other than the second defendant."

On 7 May 2012 the Registrar declined, on the basis of the form of the pleading, to make the order for joinder sought by the plaintiff.

Under cover of letter dated 30 August 2012 Ms May received a statement of UGL's cross-claim against Alltrack which had been filed on 6 August 2012. By reason of the filing of the cross-claim, Alltrack became a party to the proceedings. Ms May deposed that until she received the cross-claim she was not aware of the contractual relationship between UGL and Alltrack and understood when considering the cross-claim that there was an unwritten contract between the two pursuant to which Alltrack did the actual maintenance work relating to GPUs and the relevant power sockets.

Ms May deposed in her affidavit:

"Prior to that occasion the plaintiff was not aware and could not be aware of the nature of the contract between the second and third defendant and whether there had been any delegation or proposed delegation of responsibility for the maintenance work under the contract between those parties.

In relation to my discussions between the plaintiff as to the cause of her accident, it has always been her belief that the maintenance activities for all the ground power units at Terminal 2 at Sydney Airport was carried out by Sydney Airport Corporation Limited and she had no knowledge of the relationship between Sydney Airport Corporation Limited and the second and/or third defendant in relation to the maintenance of those assets."

The plaintiff renewed her application to join Alltrack by motion that was listed before the Registrar on 17 September 2012, who made the order granting leave to the plaintiff to file a further amended statement of claim to join Alltrack. The further amended statement of claim was filed on 20 September 2012.

Ms May is an experienced solicitor. She was admitted on 1 November 1985. She practises in the areas of industrial law, workers compensation and common law personal injury. Her principal area of practice is workers compensation. I am satisfied that, when she inspected the documents produced on subpoena by UGL at some time prior to 15 September 2009, she ought to have known that Alltrack was the entity that had incorrectly assembled the connector and that if that was the cause of Ms Kay's injury, Alltrack was at fault. It ought, in my view, have been apparent to her from the invoices that there was a contractual relationship between Alltrack and UGL as a result of which Alltrack performed the relevant work on the connectors, and in particular on the connector at Bay 33 which was implicated in Ms Kay's accident.

I am not satisfied, however, that Ms Kay knew of these matters until after 20 September 2009. There is no evidence that she had actually been shown the invoices or that their contents had been discussed with her before that date.

The knowledge required of the plaintiff for s 50C and s 50D of the Limitation Act

Alltrack has not established that either Ms Kay or Ms May knew that Alltrack was at fault prior to 20 September 2009, although it has, in my view, established that Ms May ought to have known that Alltrack was at fault prior to that date. The question is whether the plaintiff ought to have known that Alltrack was at fault. In other words, is the plaintiff fixed with Ms May's constructive knowledge?

Alltrack submitted that the reference in s 50D of the Limitation Act 1969 to the plaintiff's knowledge ought properly be construed as being a reference to the knowledge of the plaintiff either on her own account or by reason of the knowledge of her solicitor (whether actual or constructive), which is imputed to her. Mr Lloyd referred to the following passage from Bostick Australia Pty Limited v Liddiard [2009] NSWCA 167 in support of his contention:

37 His Honour said, at [65], that on the facts as he had found them and from Mr Liddiard's statements of 18 March 2004, 13 December 2004 and 13 October 2006, Mr Liddiard "had no sufficient awareness of the role of Bostik in the system of work he followed when injured". His Honour found that the opportunity to know or have any awareness of Bostik's role did not occur until 3 November 2006, when Mr Trainor received the letter dated 31 October 2006 from Bostik's solicitor, which attached Mr Lynch's statement of 23 March 2004. His Honour concluded, that up until 3 November 2006, Mr Liddiard:

"... understood his work was for and at the direction solely of Mr Lynch as his employer and he had no knowledge of the arrangements which were later shown to exist between Bostik and Brolton."

Mr Lloyd submitted that the passage implied that the knowledge of Mr Liddiard's solicitor was relevantly Mr Liddiard's knowledge for the purposes of determining when the cause of action was "discoverable" within the meaning of s 50C of the Limitation Act 1969. Mr Lloyd accepted that there was an apparent inconsistency between this finding (and what it implied) and other decisions of the Court of Appeal to the effect that it was the plaintiff's knowledge that was determinative.

I do not regard the passage in Bostick Australia Pty Limited v Liddiard as standing for the proposition for which Mr Lloyd contended. In that case Mr Liddiard's cause of action arose on 30 January 2003. His statement of claim was filed on 13 June 2007. Accordingly, the relevant date for considering when the cause of action was "discoverable" by Mr Liddiard was 13 June 2004. Because Mr Liddiard's solicitor did not discover the arrangements between Brolton Industries Pty Limited, the plaintiff's employer, which was relevantly the labour hire company, and Bostik Australia Pty Limited (Bostik), the occupier of the premises at which the plaintiff was injured, until 3 November 2006, the plaintiff himself would have had no means of knowing that he had a cause of action against Bostik until at least that date. That was sufficient to have the effect that the proceedings were brought within time. Accordingly, it was not necessary to determine when after 3 November 2006 the plaintiff knew what his solicitor knew, or indeed whether his solicitor's knowledge ought be attributed to him, since even if the plaintiff himself knew on that date, the proceedings were within time.

The construction of s 50C and s 50D and in particular the constructive knowledge (imported by the words "ought to know" in s 50D(1)) was addressed by Basten JA in Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454. His Honour (with whom Ipp and Macfarlan JJA agreed) said:

The objective test - "ought to know"

[57] The next question was whether the plaintiff's mother ought to have known each of the facts identified in sub-s 50D(1). The answer to that question must depend upon the effect of sub-s (2). It purports to provide a definition of what is covered by the phrase "ought to know". That description is premised on an assumption that the person had not taken all reasonable steps to ascertain the facts, or a particular fact, requiring an assessment to be made of what would have been ascertained had such steps been taken.

[58] In most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff (or the parent of a plaintiff) to satisfy the element of taking "all reasonable steps". (In some circumstances there may no doubt be a question as to whether the plaintiff's instructions were adequate or whether other limitations prevented the solicitor from taking proper steps in a timely fashion: no such question arose in the present case.)

[59] The phrase "ought to have known" can mean either that the person should have inquired as to a fact (the active sense) or that he or she should have been told of the fact (the passive sense). In this context, 'should' connotes a culpable omission, either by the person who should have known, or by the other person who should have supplied advice or information. If the limitation period had been intended to commence, not because of a failure on the part of the putative plaintiff to take reasonable steps, but because of the failure of another person, that could and should have been made clear. Rather, the expression "ought to know" was identified by reference only to what the putative plaintiff "would" have found out, if he or she had taken all reasonable steps. That language is apt to engage the active sense of the expression only. Further, the word "would" (rather than "should") is inconsistent with any expectation of an inquiry into the conduct of the potential source of information or advice.

[60] It was not suggested that, in the 26 day period after the accident, the plaintiff's mother should reasonably have taken any step which she did not take. Accordingly, unless the plaintiff's mother in fact had the relevant knowledge, the defence must fail.

[61] It may be added that, even if an inquiry into whether the solicitor acted reasonably were called for, the State neither called evidence to show that he had failed, nor cross-examined him to suggest that he had failed, to take particular steps which he should reasonably have taken in order to supply the mother with appropriate advice or information.

[Emphasis added.]

In State of New South Wales v Gillett, the Court of Appeal was invited to reconsider the correctness of Basten JA's reasoning in Baker-Morrison v State of New South Wales. Beazley JA (McColl, Campbell, Young and Whealy JJA agreeing) upheld his Honour's construction of s 50D, although the challenge to the reasoning was focussed on the last sentence of [57] rather than the relevant passage for present purposes, which appears in [59] and is emphasised in the extract above.

This construction of s 50D was applied in Baggs v University of Sydney Union [2013] NSWCA 451 where the plaintiff's engagement of solicitors to advise her and act in her interests was regarded as being sufficient to show that she had not failed to take reasonable steps or that the taking of all reasonable steps required her to second-guess her solicitor's advice or to seek a second opinion: see [34]-[36] per Meagher JA (Macfarlan and Hoeben JJA agreeing).

On the basis of Basten JA's reasoning in Baker-Morrison v State of New South Wales, it is necessary to enquire whether there was any relevant failure on Ms Kay's part to take reasonable steps. In February 2009, Ms Kay had engaged a reputable firm to act on her behalf. Ms May, who took over the matter in July 2009, is an experienced solicitor with an established reputation. In my view, Ms Kay was entitled to assume that she would be given all relevant advice and information by Ms May. Ms Kay was not reasonably required to interrogate Ms May as to the steps she was taking or insist on perusing for herself the documents produced by UGL on subpoena on 28 July 2009 on the footing that her own expertise might shed further light on them. Ms Kay's lack of knowledge that Alltrack was at fault prior to 20 September 2009 was a result of Ms May's failure to appreciate the gravamen of the documents she had examined and her failure to advise the plaintiff accordingly. Ms Kay's ignorance was not a result of any failure by her to take reasonable steps.

Accordingly, Alltrack has failed to establish that Ms Kay knew or ought to have known that her injury was caused by Alltrack's fault at a date prior to 20 September 2009. Her claim is therefore not time-barred.

Conclusion

As referred to above, the parties have asked me to publish my reasons in order that they can calculate the relevant sums and provide draft short minutes before final orders are made.

Orders

I make the following orders and directions:

Proceedings 297470 of 2009

(1) Judgment for the second defendant.

(2) Judgment for the plaintiff against the third defendant.

(3) Reserve the question of costs.

(4) Direct the parties to perform calculations as to quantum and to prepare short minutes of order to reflect my reasons and provide draft short minutes to my Associate within seven days of this judgment.

(5) Direct the parties to contact my Associate within seven days to list the matter for argument on costs, if costs orders are not agreed.

Proceedings 146777 of 2012

(1) Judgment for the first defendant.

(2) Judgment for the plaintiff against the second defendant.

(3) Reserve the question of costs.

(5) Direct the parties to contact my Associate within seven days to list the matter for argument on costs, if costs orders are not agreed.

**********

Decision last updated: 06 June 2014

Medium Neutral Citation:	Kay v Sydney Airport Corporation Limited [2014] NSWSC 744
Hearing dates:	19, 20, 21, 22 and 23 May 2014
Decision date:	06 June 2014
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	Proceedings 297470 of 2009 (1) Judgment for the second defendant. (2) Judgment for the plaintiff against the third defendant. (3) Reserve the question of costs. (4) Direct the parties to perform calculations as to quantum and to prepare short minutes of order to reflect my reasons and provide draft short minutes to my Associate within seven days of this judgment. (5) Direct the parties to contact my Associate within seven days to list the matter for argument on costs, if costs orders are not agreed. Proceedings 146777 of 2012 (1) Judgment for the first defendant. (2) Judgment for the plaintiff against the second defendant. (3) Reserve the question of costs. (4) Direct the parties to perform calculations as to quantum and to prepare short minutes of order to reflect my reasons and provide draft short minutes to my Associate within seven days of this judgment. (5) Direct the parties to contact my Associate within seven days to list the matter for argument on costs, if costs orders are not agreed.
Catchwords:	TORTS - Negligence - Causation - two immediate causes of injury - additional force on plaintiff's shoulder due to her working overhead which ought to have been mitigated by provision of a ladder by employer -additional force required to be exerted to obtain a connection between aircraft and ground power unit due to third defendant's incorrect orientation of bulge -presumptive inference of causation from sequence of events open - fact that plaintiff had inserted incorrectly configured connectors in the past or the fact that other workers would not have been injured when inserting connectors not determinative - No contributory negligence - Second defendant discharged duty to plaintiff by engaging a reputable and well-qualified contractor (the third defendant) to perform work and maintenance on airport ground power units CIVIL PROCEDURE - Limitations - plaintiff's cause of action not time-barred - Whether the plaintiff knew or ought to have known that the injury was caused by the fault of the third defendant - Plaintiff's solicitor's constructive knowledge not to be imputed to plaintiff- Plaintiff's engagement of reputable solicitors sufficient to show that plaintiff had not failed to take reasonable steps - Plaintiff's lack of knowledge that third defendant was at fault not a result of any failure on her part to take reasonable steps
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5B, s 5E, s 5R Limitation Act 1969 (NSW), s 50C, s 50D Occupational Health and Safety Regulation 2001 (NSW) Workers Compensation Act 1987 (NSW), s 151H, s 151Z
Cases Cited:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538 Baggs v University of Sydney Union [2013] NSWCA 451 Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454 Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 Bevillestra Pty Limited v Liberty International Insurance [2009] NSWCA 16 Boral Bricks Pty Limited v Cosmidis (No. 2) [2014] NSWCA 139 Bostick Australia Pty Limited v Liddiard [2009] NSWCA 167 Jones v Dunkel (1959) 101 CLR 298 Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; 59 ALJR 492 Seltsam Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; 200 CLR 121 State of New South Wales v Gillett [2012] NSWCA 83 TNT Australia Pty Limited v Christie [2003] NSWCA 47; 65 NSWLR 1 Transfield Services (Australia) Pty Limited v Hall; Hall v QBE Insurance (Australia) Pty Limited [2008] NSWCA 294; 75 NSWLR 12 Wallace v Kam [2013] HCA 19 X and Y (by her tutor X) v Pal (1991) 23 NSWLR 26 Zanner v Zanner [2010] NSWCA 343
Texts Cited:	Honore & Hart, Causation in the Law, (2nd ed 1959, Clarendon Press)
Category:	Principal judgment
Parties:	2009/297470 Anna Kay (Plaintiff) Sydney Airport Corporation Limited (1st Defendant) United Group Infrastructure Pty Limited (2nd Defendant) Alltrack GSE Pty Limited (3rd Defendant) 2012/146777 Toll Aviations Engineering Pty Ltd (Plaintiff) UGL Infrastructure Pty Ltd (1st Defendant) Alltrack GSW Pty Ltd (2nd Defendant)
Representation:	Counsel: 2009/297470 H Kelly SC/T McKenzie (Plaintiff) P Cummings SC/R Taperell (2nd Defendant) DA Lloyd (3rd Defendant) 2012/146777 N Polin (Plaintiff) P Cummings SC/R Taperell (1st Defendant) DA Lloyd (2nd Defendant) Solicitors: 2009/297470 Slater & Gordon Limited (Plaintiff) Sparke Helmore (1st Defendant) Cantle Carmichael Lawyers (2nd defendant) GSG Legal (3rd Defendant) 2012/146777 Hicksons Lawyers (Plaintiff) Cantle Carmichael Lawyers (1st Defendant) GSG Legal (2nd Defendant)
File Number(s):	2009/297470; 2012/146777
Publication restriction:	Nil

Bay number	Orientation of bulge	Date cable/ connector last replaced at that bay
31	Right	16 November 2005
32	Left
33	Right	9-14 February 2006
34	Right	Prior to 1 July 2005
35	Right	28 September 2005
36	Right	Prior to 1 July 2005
37	Used as a car park	Not applicable
38	Left
39	Right	Prior to 1 July 2005
40	Right	19 October 2005

Head of damage	Amount
Non-economic loss (30%)	$127,000
Out of pocket expenses (agreed)	$66,838
Future treatment (agreed)	$25,000
Past economic loss to 31 July 2009 (agreed)	$70,000
Past economic loss of $500 per week from 1 August 2009 to date of judgment	To be calculated
Future economic loss of $500 per week to age 55 less discount of 15% for vicissitudes	To be calculated.
Past superannuation (11% agreed)	To be calculated.
Future superannuation (14% agreed)	To be calculated.
Fox v Wood (agreed)	$42,375
Domestic assistance (agreed as abandoned by Ms Kay)	NIL
Sub-total	To be calculated.
Discount for contributory negligence	NIL
Sub-total (same figure as for sub-total above)	To be calculated.
Less s 151Z(2)(c) deduction on account of Jetcare's 75% responsibility	To be calculated.
Total damages under the *Civil Liability Act* 2002	To be calculated.