Lanza v Codemo - [2001] NSWSC 845

No judgment structure available for this case.

CITATION: LANZA v CODEMO [2001] NSWSC 845

FILE NUMBER(S): SC 20818/97

HEARING DATE(S):

JUDGMENT DATE:
28 September 2001

PARTIES :

Guiseppe Lanza
Codemo Management Pty Ltd t/a Yoogali Engineering Co and Ors

JUDGMENT OF: Wood CJatCL at 1

LOWER COURT
JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER :

COUNSEL : P: L Morris QC with D Conti
D1 and D2 C Hoeben SC
3D discontinued
4D P Greenwood SC with G.D. McNally
5D ADM Hewitt SC with J. Sleight
6D I Wales SC
3-4 xd [SSE] M. McCulloch

SOLICITORS: Freehills
5D: Morag & agnew
6D: McCabes

CATCHWORDS: TORT – Personal Injury – Costs – whether Bullock or Sanderson order should be made – costs between contributing defendants – whether costs incurred by plaintiff reasonable as between plaintiff and unsuccessful defendant – where claims against defendants were independent and alternative

DECISION: See separate minutes of order

- -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

NO.20818 of 1997

WOOD CJ AT CL

WEDNESDAY 28TH FEBRUARY 2001

LANZA V CODEMO MANAGEMENT PTY LTD t/a YOOGALI ENGINEERING CO

JUDGMENT

1 WOOD CJ AT CL: The plaintiff, Guiseppe Lanza, became a quadriplegic as a result of an accident at his place of work in Griffith, on 27 June 1996. He brings these proceedings for damages in respect of the injuries sustained.

THE ACCIDENT

2 The accident occurred while the plaintiff was working from the bucket of a mobile cherry picker, a form of elevated work platform (EWP) attached to a late 1960’s model Austin truck owned by his employers (“Yoogali”). The cherry picker had been built in 1967 and purchased by Yoogali from the Murrumbidgee County Council in the mid 1980’s.

3 The plaintiff was, at the time of the accident, assisting two other men, his brother Marco Lanza, and Mathew Smart, to lift a beam and attached door track, which was to be welded to purlins on either side of the doorway to the shed that they were constructing. The EWP was about 5 metres above the ground, and comprised a bucket whose dimensions were 1260mm, by 620mm, by 920mm deep.

4 Although narrow, the bucket permitted a man, standing within it, to crouch down to reach tools required for the job at hand. It was being used, at the time of the accident, to support the beam which the other two workmen were hauling up by ropes slung over the purlins.

5 The plaintiff was wearing a levitator safety harness, with a December 1995 manufacture date, attached to his upper body with straps over the shoulders and in between his legs. At the rear of the harness there was a D ring attached to an extendable tension strap. That tension strap, which performed the function of an energy absorber, was contained within a pocket, and was secured by sacrificial stitching. In the event of a fall, the sacrificial stitching was designed to break, thereby activating the energy absorber, that would help break the wearer’s fall.

6 An essential element of this fall arrest system, when in use, was the connection of the harness to a fixed point, preferably located at or above the height of the D ring, by way of a lanyard. The lanyard in use was about 1.8m long, and consisted of a plastic coated galvanised 7mm wire cable to which hooks were swaged at each end. They were rated to have a load bearing capacity of 25 kn, well in excess of the relevant Australian standard. One end of this lanyard was intended to be hooked onto the D ring of the harness. The remote or free end was intended to be hooked onto a fixed point, in the present case an eyelet or ring located on the top of the bucket.

7 The hooks were provided with a spring-loaded keeper, which was backed up by a spring loaded latch. This latch had to be depressed to disengage the tongue of the keeper which automatically closed around the load by spring tension.

8 So designed, and assuming all connections were properly made, the harness and lanyard were intended for use as a last resort safety device to arrest the wearer in the event of a fall.

9 The plaintiff’s accident occurred just as, or immediately after, he had crouched down to pick up either a spanner or welder hand piece from the bottom of the bucket. Unfortunately, at that moment, a glass fibre reinforced plastic (GRP) rod, which was part of the levelling mechanism of the bucket, and which was attached to a wire cable, broke as a result of its incomplete lamination, tipped the bucket forward, and propelled the plaintiff from it. The harness did not arrest his fall onto the concrete below.

10 Immediately after the accident it was seen that the remote end of the lanyard was still attached to the eyelet in the bucket. The hook that should have engaged the other end of the lanyard to the harness was not however engaged, and the sacrificial stitching used to hold the shock absorber was intact, indicating that it had not been placed under a full load. No damage was found to the hooks or the catches, and the hook was found to be functioning correctly. The plaintiff was still wearing the harness, which was cut from him by the ambulance officers called to the scene.

11 It was common ground, as confirmed by all the experts, that the cause of the failure of the levelling mechanism was the defective state of the GRP rod, it being agreed by them that the cherry picker was being used well within its safe recommended load of 500 lbs. It was also common ground that proper inspection and maintenance of the cherry picker should have picked up the defective and potentially dangerous condition of the GRP rod.

THE PLAINTIFF’S CLAIM AND THE CROSS CLAIMS

12 The quantum of the plaintiff’s damages have been agreed by all parties, who also accept that the accident was one that falls within the ambit of the Motor Accidents Act 1988. It operates to the exclusion of the Workers Compensation Act 1987, so far as the assessment of common law damages is concerned in relation to the plaintiff’s employers. (S151E(2) of the Motor Accidents Act). For the purpose of the Motor Accidents Act, damages were agreed at $5m plus costs. At common law, free of any legislative cap, they were agreed at $6.2m. plus costs.

13 The proceedings were brought by the plaintiff against the following defendants:

14 The proceedings against Fallright, and Moxham, were based upon common law negligence, and also upon S 75AD of the Trade Practices Act 1974. The proceedings against Kuba were based upon common law negligence alone.

15 Liability to the plaintiff has been admitted by Yoogali, by reason of breaches of the duty of care owed by it in relation to the operation, maintenance and use of the EWP, and in particular in relation to the failure to inspect and detect the extensive surface cracking of the GRP rod that should have led to its replacement. In this regard, it was the case that the relevant Australian Standard called for major inspections of all components after 10 years service and thereafter at 5 yearly intervals. A verdict and judgment have been entered accordingly.

16 No other defendant has admitted liability. All defendants have, however, conceded that there was no contributory negligence by the plaintiff.

17 Each of the defendants has brought a cross claim against the others for contribution or indemnity under the Law Reform (Miscellaneous Provisions) Act 1946. Cross claims have also been framed by some of the defendants pursuant to contract. Those additional cross claims were raised late in the proceedings and have been stood over for further determination, if required. This judgment is confined to the Law Reform (Miscellaneous Provisions) Act claims for relief.

18 Additionally, but alone, Fallright has brought a cross claim against SSE, the designer and manufacturer of the hook that was supplied by Fallright to Kuba, on-sold to Yoogali, and then clipped onto the lanyard used by the plaintiff.

THE ISSUES

19 The issues that remain in the case concern the following matters:

a) Why did the harness not arrest the plaintiff’s fall?

b) If the hook was securely clipped to the harness, but suffered roll out, was its design defective, so as to give rise to liability on the part of Fallright and/or SSE?

c) Did Moxham fail to supply proper instructions with the harness in relation to its use, so as to give rise to liability on its part in relation to the marketing, packaging and labelling of the product?

d) Did the intermediate supplier, Kuba, fail to take precautions in relation to the marketing, packaging and labelling of the complete unit which it supplied to Yoogali?

e) Is the plaintiff entitled to recover damages against any defendant under the Trade Practices Act, if the components respectively manufactured or supplied by them were defective, or if insufficient instructions were supplied, or does S 75I of the Act exclude any such recovery?

f) If any defendant, other than Yoogali, is liable to the plaintiff, what are the respective proportionate responsibilities of those defendants who are liable to the plaintiff?

20 For an understanding of the issues which arise, and which overlap to a considerable degree, it is necessary to record the circumstances in which Yoogali came to acquire the safety harness and attachments, and to note the competing contentions as to the reasons for the plaintiff’s fall from the bucket once the levelling mechanism broke.

21 About six months before the accident (more precisely 23 November 1995) safety inspectors from Workcover found the plaintiff working at the Seaton’s bakery site, from the EWP, without a safety harness. This occurred even though Yoogali had, available for its staff, and the plaintiff used from time to time, a general purpose belt harness. Both the plaintiff and Yoogali were fined. As a consequence, in about March 1996, Yoogali approached Kuba and made known its need for a safety harness suitable for use on its EWP.

22 Mr Mitchell of Yoogali gave evidence of the circumstances in which this information was supplied, and a purchase was made. He phoned Kuba and said that Yoogali had been fined and required a harness suitable for use in a cherry picker, and in other elevated work positions. The employee Andrew, to whom he spoke, said that there was a product that would generally serve their needs. He then faxed down some pages of the catalogue to show the product they were talking about (which was circled) together with the prices. Mr Mitchell sent an order of confirmation, dated 7 March 1996, for two safety harnesses with lanyards which were then supplied. The lanyards were wrapped in individual plastic bags, and the harnesses were contained in fabric storage bags. They were unaccompanied by any manual or instructional pamphlet. No warning or advice was given orally in relation to any matter of which the user should be aware in using the product, or of the safety precautions that could and should be taken.

23 Whether any instructions or swing tags had been attached to the harness itself by Moxham was not established.

24 The plaintiff said that he was certain that the hook had been securely attached to the D ring before the accident. In this regard, he said that the D ring was positioned about mid back, and that he felt the weight of the lanyard dragging down from that position after he hooked up. His brother similarly said that he saw it hanging down from his back, before the accident occurred. No party seriously challenged the evidence of either witness in this regard. I see no reason not to accept it.

25 The fact is that although the hook and harness were connected before the fall, they were found disengaged immediately afterwards. Two possibilities, and only two possibilities were advanced to explain that event:

26 It was accepted that, for all practical purposes, these possibilities were mutually exclusive. If the hook had been properly attached to the D ring, then roll out must have occurred. If, however, it was imperfectly attached to the webbing or obstructed by clothing, then almost certainly the force of the fall would have caused the hook to detach.

27 In relation to the roll out possibility two scenarios capable of triggering that event, were developed. An understanding of each requires an examination of the design features of the opening and closing mechanism of the hook, which was known as a double action hook. To open it, pressure has to be applied to the two latches which are located in opposing positions. The application of opposing compression forces on the two latches will permit the jaws of the hook to be opened.

28 The first scenario for roll out accordingly involved the accidental application of those opposing compression forces, on one hypothesis, when the plaintiff crouched in the bucket, and pressed one side of the hook against the bucket, while the other side of the hook was sitting at right angles to his body. In that position, if the other side of the hook was pressed up against his body, particularly against the hard pack containing the extending strap, then, it was suggested, the combination of the opposing forces could permit the jaws to be released, after which the hook could slide off the D ring. This requires a somewhat unique, although not entirely impossible, combination of circumstances involving pressure imposed in opposite directions at virtually the same time and the positioning of the D ring in a critical configuration so that contact on one side could activate both latches, and also so that the open hook could then slide off the D ring.

29 An alternative scenario for roll out that was explored requires the same combination of critical configuration and opposing pressures, occurring after the fibreglass rod broke and the EWP tipped forward. This hypothesis supposed accidental contact, and the application of opposing pressure on the latches, occurring in the course of the plaintiff’s fall, i.e. it supposed a situation in which the plaintiff struck the side of the bucket, or some other hard object, as he fell releasing him from the harness before he struck the ground.

30 The other possibility of imperfect connection was advanced by the plaintiff, by Yoogali, and by Fallright, as the more likely. It began with the proposition that since it was difficult, if not impossible for the wearer of the harness to visually see or check the connection, he was forced to rely upon sound, or upon a good tug on the lanyard, after connection, to tell whether he was securely hooked up. In these circumstances, it was said there were several possibilities for imperfect connection, including connecting the hook onto or into the webbing attached to the D ring, or to the sides of the D ring, or connecting it in a position where it was left slightly open because of clothing becoming inadvertently jammed in its jaws. As was demonstrated during the trial, any such imperfect attachment could give the user the impression, since it could sound the same and since it could survive a firm test tug, depending on where and how attachment was made, that the hook was properly connected.

31 I will return to these alternatives later when I came to consider the liability of the defendants other than Yoogali. In the meantime, it is appropriate to note that the possibility of inadvertent yet incomplete hook up by a worker, exercising due care for himself, was conceded by all parties, as a reasonable possibility, particularly in a noisy or busy workplace. It was for that reason that contributory negligence was not pressed by any defendant.

32 Some possible solutions to avoid imperfect hook up were canvassed, including:

a) clipping on before donning the harness;

b) moving the position of the D ring higher up the back, or extending the length of the strap; or providing a pack tensioning device that would, in each case, allow the D ring to be pulled out to a position where the connection could be more easily checked visually by the wearer; or

33 In relation to the hook, some other connecting devices were suggested to be preferable, including:

a) a screw gate swivelling hook;

b) a karabiner, or

34 As I have observed, because of the difficulty of reproducing in the work place, the precise circumstances in which inadvertent or unexpected pressure on the hook could result in roll out, it was all but conceded that it was improbable in the extreme, that it was the reason for the hook becoming detached in the present case. Upon a balance of probabilities, it was accepted by all parties other than Moxham that the cause was far more likely to have been imperfect connection.

35 Moxham, however, submitted that, in the absence of any sign of damage to the webbing, there was nothing positively pointing to imperfect connection as the cause. Further it submitted that, in circumstances where a particular event could be related to two independent and exclusive causes, even though one was highly improbable, neither logic nor any theory of probability could favour one of those causes over the other. The plaintiff, it was submitted, could not establish, or eliminate, in this case, either scenario as a possible cause of detachment. The consequence, so it was submitted, was that, absent a positive finding as to the reason for the plaintiff’s harness becoming disengaged, liability could not be attributed to any of the defendants, other than Yoogali. In view of that submission it is necessary to resolve the issue thus raised as to the cause of disengagement in this case.

THE HARNESS DID NOT ARREST THE PLAINTIFF’S FALL

36 In light of that background, and those competing contentions, I turn to the evidence of the plaintiff as to his practice, and as to what he recalled of the accident; and to the expert evidence concerning the harness and the matters that need to be taken into account for its safe use.

37 The plaintiff gave evidence that he always wore the harness, when working from the cherry picker, once it was acquired. This followed upon the general instruction from his father, following the earlier prosecution, to all staff, that anyone who went up in the bucket without wearing the harness would be dismissed. He said that he was not given any specific advice by anyone in respect of the way in which the harness was to be attached, save for some general instructions from his brother as to the way in which it was to be buckled up and adjusted. He also said that he did follow the instructions printed on the indelible label of the harness.

38 He said that he was never warned of the possibility of imperfectly securing the hook to the D ring or webbing, or of the integrity of the hook being interfered with by clothing, or of the need to have a co-worker check the connection, or as to the advisable sequence of attaching the lanyard to the harness and the fixed point.

39 He said that it was his practice to place on the harness first, and then to hook the lanyard onto the D ring, with his right hand behind his back at waist level. He also said that it was not possible for the wearer to visualise the connection being made between the hook and D ring, when following this procedure.

40 In chief, he said that he had no particular recollection of how it was that he fitted the harness, and effected the connection, on the day of the accident. However, I see no reason to believe that he followed other than his usual practice, particularly in the light of the two pieces of evidence previously mentioned. The first was his own evidence that he recalled, before the accident, feeling the weight of the lanyard dragging on his back, and “collecting” him when he moved about. The second was that of his brother Marco, who said that he saw the lanyard hanging down from the harness before the plaintiff fell from the bucket.

41 The plaintiff conceded, in cross examination by Counsel for Fallright, that he could not recall whether he tugged on the harness after he attached it. When cross examined by Counsel for Kuba he said, initially, that he checked the attachment by moving the hook to see if it would shift around inside the D ring. He later corrected this by saying that the check consisted of pulling on the cable, rather than moving it from side to side. “It felt right so I kept working”.

42 He made it clear, in cross examination, that he connected the lanyard to the harness after putting it on and that this occurred after he got into the bucket.

43 It was his recollection that, immediately before the bucket tipped, he had crouched down to pick up the welder, which was in front of him in the bucket. The controls were behind him, he agreed in cross examination, when he did this. He was not aware whether the back of the harness was touching the bucket, but he believed it “would have been fairly close”. He was also not sure whether, in the dynamics of the bucket tilting, his back was struck by it before he fell out, although he thought that may have occurred.

44 It was established that he had been wearing a jumper and jeans positioned beneath the harness, in the way that was recommended. Moreover, he said that the exercise with the cherry picker occupied 5 to 10 minutes, a period of sufficiently short duration as to have made it unlikely that he would have deliberately disconnected the lanyard from the harness, between the time of the initial connection and the fall.

45 It is possible that the plaintiff was in error in his recollection that he bent down to pick up the hand piece to the welder. His brother Marco thought that he was looking instead for a spanner to remove some bolts from the purlins which were in the way. Nothing, however, turns on this difference in their accounts, it being common ground that the plaintiff did crouch down facing the open doorway and beam, just before the fibreglass rod snapped, and that when he did so, his shoulders went below the rim of the bucket.

46 I turn next to the expert witnesses who were called in relation to the likely reason for disengagement of the hook, and in particular in relation to the question whether it was due to roll out or to an unrealised but imperfect connection. In the course of their evidence some attention was given to the development of the Australian Standard, to industry knowledge, to alternative forms of hook and lock, to alternative ways of connecting the lanyard hook to the D ring, and to alternative ways of checking the integrity of that connection.

47 It became clear from their evidence that the problem of roll out had been well recognised, in relation to single action hooks, leading to the introduction of double action hooks. The Australian Standard 1891.1.1995, that was published in March of that year, ie prior to the supply of the subject harness, gave recognition to this so far as it called for double action hooks rather than single action hooks, and so far as it replaced the 1983 standard.

48 In the plaintiff’s case, Dr John 0lsen, an occupational health, safety and rehabilitation consultant, was called. It became clear that he had no substantial complaint in relation to the design of the harness, which he thought complied with the 1995 standard. He also thought it was the right harness for the kind of work which Yoogali undertook. His principal concern, it appeared, was with the hook design, which he said “was such that to disengage the two locks of the double action, compression only was required. This is unlike some double action hooks where tension is required on one side.” One such hook, that was available in 1998, was demonstrated in a Fallright catalogue which was an attachment to his report. Another was the Karabiner type hook.

49 The hook used in the present case did not, in his view, comply with clause 3.3.2 of the 1995 Standard which specified that the springs of the snap hooks are to “be loaded so that when the latches are closed the springs rest in position and are constrained from any movement until deliberate pressure is applied to engage or release the latch”; and further specified that “in order to reduce the probability of involuntary opening, snap hooks and karabiners should be capable of being opened only by at least two consecutive deliberate actions.”

50 He said that he had been able to simulate an accidental opening by applying pressure, in a single direction, on the side of the locking plate of the hook when attached to the harness, ie in a way not requiring two consecutive deliberate actions. He demonstrated this event in the witness box, although not without considerable difficulty.

51 It became apparent that this could only occur in the rare circumstance where the D ring and hook were so configured that, pressure applied directly inwards against the locking plate would generate a reciprocal pressure outwards, when the hook was pressed against the shock absorbing part of the harness. That, he said, would then activate the locks, and allow the D ring to slide out of the hook.

52 In the manner first demonstrated by Dr Olsen, the curve of the D ring was in the uppermost position, the hook was allowed to sag slightly to the left with the eye toward the body of the wearer and the pressure was applied to the safety latch. The same event was demonstrated with the hook reversed, ie with the eye pointing outwards. In this configuration pressure from the wearer’s side activated the safety latch, permitting the hook to snap off, provided it swivelled sideways.

53 The force required to open the main latch, Dr Olsen explained was one of 2kgs, a force which had to be applied in exactly the correct direction, differing according to the way in which the hook was positioned.

54 Dr Olsen conceded that “roll out” occurring in either of these ways would be “necessarily rare” although each was “a possibility”. He regarded the exercise undertaken as one involving a simultaneous action, in the sense that it depended upon the generation of simultaneous, reciprocal but opposing forces.

55 He acknowledged that he had not endeavoured to simulate roll out by a blow to the hook as distinct from a sustained pressure upon it. He also acknowledged that the safety catch had to be depressed for some distance before the hook would open, and that there had to be a sideways movement for the open hook to come off the D ring. He further agreed that the natural tendency of the hook and lanyard was to follow the forces of gravity to the floor, thereby pulling the D ring downwards, and that it was also the natural tendency of the hook, once slipped into the D ring, to lie to one side or another, rather than to sit perpendicular to the back.

56 It follows that the second simulation of roll out that he demonstrated was less likely to occur since the optimum circumstances for it required the hook to be as close as possible to 90 degrees to the wearer’s back. Although, for the first simulated roll out that he demonstrated, the D ring was at an angle, he acknowledged that it also could not occur where the D ring was flat against the wearer’s back.

57 Apart from the double acting tension and compression hook that he thought appropriate, Dr Olsen said that a Karabiner would have been a better option since it could not be opened by a single pressure. He did, however, acknowledge that the Karabiner would be more fiddly to use, particularly if secured to a D ring behind the wearer’s back, because of the need to twist the screw that brings it to a closed position. Moreover, he conceded that a user may not be able to tell whether the screw gate was fully closed, that Karabiners are able to work themselves undone through vibration and possibly through rubbing against clothing, and that some wearers may not bother to screw up a knurled mechanism of the kind deployed in a Karabiner.

58 The double acting tension and compression hook he thought would be easier to use than the Karabiner, but “slightly more difficult” to operate than the one used on the plaintiff’s harness.

59 Another alternative means of connection that was explored, in cross examination of this witness, was the one that employed a mechanism permitting permanent, or at least semi permanent closure, and that can only be undone, once fixed, with an implement such as a screwdriver, spanner or pair of pliers. One that Dr Olsen spoke of was a shackle. Another, that was identified in the evidence of Dr. Turner, was a tube nut connector, normally referred to by its brand name, Maillon, that can be made even more secure by application of Lock Tight glue.

60 The other aspect of the case explored by Dr. Olsen related to the method of attachment of the hook to the D ring. One possible solution for improvement that he offered, involved a small extension of the D ring strap, by about 300 to 400mm, to improve the ability of the wearer to visualise the connection. Another solution was to make that connection before donning the harness, or to have someone else make the connection.

61 The problem of effective connection that he identified in this regard, was that previously mentioned, namely the difficulty, if not the impossibility, of the wearer being able to see the D ring on the harness when attempting to attach the hook to it, with the risk of incomplete closure due to some impediment, or due to connection to the webbing or some part of the harness other than the D ring.

62 In cross examination, he admitted that the provision of an extended D ring strap would cause the lanyard and ring to hang lower on the body of the wearer than the preferable mid back point of attachment. This, he conceded, could present its own dangers, so far as the attachment may become more prone to compression through leaning against or pushing against other objects, if worn at waist level, and in so far as there would be a greater likelihood of snagging. His evidence in relation to this aspect of the case is best encapsulated in the following answer:

“If you look at the purposes that you might put this harness to, it is probably better to have it the way it is. For use in a cherry picker, I would rather have the extension.”

63 Finally, Dr Olsen was of the view that it would have been desirable for the harness to contain an indelible instruction, in respect of the security of the connection of the lanyard onto the D ring. That, he said, might also include instructions to the effect that the connection ought to be made before the harness was donned, and/or that its integrity should be checked by a co-worker, and/or that the connection should be made by the co-worker. He agreed, in cross examination, that it was not possible to warn against every possible mishap, and that warnings should be confined “to the main risk associated with the use of the equipment”.

64 Dr Olsen made it clear that he was unwilling, if not unable, to determine which of the possible competing causes of detachment identified, had occurred in this case, regarding this as a matter for the Court.

65 Dr Turner, an engineer employed by Workcover New South Wales and Chairman of the Standards Australia Committee for Industrial Belts and Harnesses, was called in the case of Fallright. He was asked to examine the subject harness and lanyard after the accident, in order to report on the suitability and condition of its components. The effect of his report was that the hooks used were properly to be regarded as double action hooks, within the intent of the Standard. He also said that the signage and markings on the harness conformed with clause 5.2 of the 1995 Australian Standard. He found no fault with any of the individual components.

66 He agreed that, while the 1995 standard had led to a great improvement, double action hooks were not infallible, and that, dependent upon them being placed in a particular orientation, they were still susceptible to simulated roll out.

67 So far as the 1995 Standard dealt with the need for deliberate pressure to engage and release the latches, he said that he regarded this as directed to the need for the spring not to be in tension when the lock is closed; and also to the need to ensure that when the device was closed, the spring was contained and not vulnerable to being activated accidentally by a side load or by some external object pushing against it.

68 His evidence in relation to this aspect of the case, and in particular the likelihood of there having been a roll out through compression, is best encapsulated in the following passage of his evidence:

69 He regarded the Fallright (SSE) hook as safe to use in relation to fall arrest equipment, and added that he was unaware of any problem with its use in the workplace. In a letter to the plaintiff'’s solicitors dated 25 March 1999, he said that it was acknowledged that some double acting hooks were susceptible to simulated roll out, and that the hooks involved in the accident “were one of the easiest to demonstrate this potential”. In the course of his cross examination he explained that he was speaking of simulated roll out. He accepted that while roll out with a hook of the kind used here was extremely rare, that could occur if both sides of the locking mechanism were compressed by an action in a single direction, ie if it could be held and retained in the correct orientation, and the necessary movement of the hook on the D ring could be achieved.

70 He agreed that there were locks available in 1995, including those in the Fallright catalogue that could not suffer hasp unlocking as the result of pressure in a single direction, and required separate and consecutive movements for that to occur. However, he said, they could also be shown to roll out in a different circumstance, ie if the lanyard was twisted in a particular way, albeit that it would be “very rare and very difficult to achieve” the necessary orientation, and “in real life virtually impossible “to do so”.

71 Karabiners, he said, were appropriate for use with fall arrest equipment. They had advantages in terms of their light weight and flexibility of use; and disadvantages so far as they may not meet the standard for strength when loaded across the gate, so far as they depend on the worker winding the knurled nut up tight to secure a lock, so far as they tend to go missing in the workplace (because of their other potential uses), and so far as they can become undone by rubbing up against another surface or object (if done up finger tight) or through vibration. He pointed out that they can also give a false positive if screwed up tight against some obstruction in the gate, especially if done up out of sight.

72 The semi permanent or permanent connectors, such as the maillon, he said could overcome this problem but they could also cause problems in certain applications, for example, where the worker had to move around because of the risk of having the lanyard caught or snagged. Additionally, he said the use of a permanently fixed lanyard could be uncomfortable if the worker was required to get into a vehicle, in which event it might dig into his back. The risk of tube nut connectors coming undone through vibration or friction, he said could be overcome by the application of Lock Tight glue, and to that extent they had an advantage over karabiners.

73 It was his experience that wearers of harnesses of the kind used in this case made the D ring connection by going over the top rather than from below (the way that the plaintiff did it). He had not seen any difficulty with this, and he did not regard it as a dangerous or inadvisable practice to hook up after the harness was donned.

74 He also did not see any difficulty in the way of a worker making a physical check himself to confirm proper connection. This he said was normally done by giving the hook a wiggle to check that it was moving freely within the D ring.

75 He did, however, agree in cross examination, that any form of safety equipment that involved a worker attaching something behind his back, had inherent dangers arising out of the fact that the worker could not see the precise point of attachment and that in the hustle and bustle of work, a mistake could genuinely be made when effecting the attachment. He also conceded that if the hook had been firmly attached to the webbing or clothing of the worker, then a pull on the lanyard may leave the worker with the incorrect belief that he was properly attached. He did, however, indicate that it would be more likely, if there were an imperfect connection, for the hook to pull off whatever it was attached to, when tugged. Another false positive that could appear to an operator, in the event of the hook being enmeshed in the clothing or webbing, he accepted, was the reassurance of the weight of the lanyard.

76 In relation to the provision of additional instructions upon the harness, Dr. Turner pointed out that there was a limitation, in a practical sense, in that there was not a large amount of room available.

77 By reason of his belief that there was nothing inherently unsafe in connecting the hook to the D ring after the harness was in place, he did not think, subject to one qualification, that there was any point in placing upon it any additional instruction or warning of the kind that Dr. 0lsen had identified. The qualification was expressed in the following terms:285

“If it was not possible to do a physical check I would agree there should be some sort of instruction to get another person to check it or to put it on first or to do something else that removes that problem, yes.”

78 Generally, in relation to instructions and the attitude of the Australian Standards Committee, he said: 286

“One of the problems with harnesses is actually convincing people to wear them in the first place and the larger and bulkier they are to make room for signage the less likely they would be to be worn, so the committee has actually looked at that aspect and decided that whilst there is a whole host of information that could possibly be put on, especially to allow them to be used by, say, an untrained person who would just simply read what is on the harness, it was considered that they should only be used by persons who have had some training in their use and are competent to use them and a lot of things would be covered in that training and most would be self evident anyway, but would be worth reinforcing in either an instruction sheet that goes with it and/or in the training.”

79 He agreed that there was room for a stark warning to be included on the harness as to the need for integrity in the connection, although he thought it would be less important than a number of other possible warnings.

80 He also agreed that it was a reasonable condition to apply to the equipment that its use be limited to “trained personnel aware of the dangers of the conditions” in which it was to be used, and that “use by persons without appropriate training and incapable of assessing the danger of conditions of use" should be prohibited. Additionally, he agreed that it was reasonable that these matters be brought to the attention of a potential user, by way of operation manual or safety pamphlet or otherwise.

81 In Dr Turner’s letter to the plaintiff’s solicitor, previously mentioned, he also drew attention to the different work practices which might follow, dependent upon whether the lanyard used was a fibre rope or webbing lanyard, or a heavier wire lanyard. In normal work conditions he thought that a worker using the heavier lanyard was more likely to disconnect from the harness end, than from the bucket end, because of the inconvenience of carrying the lanyard around; whereas the worker with the lighter lanyard was more likely to disconnect from the bucket end.

82 Each, he pointed out, had its own problems. Reconnection to the harness involved a connection out of view, which “introduced the potential to catch clothing in the hook and prevent correct closure … thus negating the latching mechanism and significantly increasing the likelihood of the hook becoming detached”. While leaving the lanyard connected to the bucket had the potential of making it “easier to forget to reconnect upon re-entering the bucket.” Notwithstanding these risks he did not consider it necessary for this to be the subject of any specific instruction, since it depended on the work that was being undertaken, the type of lanyard in use and other considerations.

83 As to the reason for the failure of the safety equipment in the present case, Dr. Turner thought it unlikely, but not impossible, to get a roll out from the dynamics of the plaintiff moving about in the bucket. In particular, he indicated that, while he accepted that roll out could be simulated if the hook was held in the correct orientation, he expected that in use, it would fall sideways, ie in a position where it would be unlikely to receive the compression forces that would activate it.

84 The more likely scenario he thought (assuming initial attachment) was a false hook up to the webbing, or interference to full hook closure attributable to an obstruction.

85 The final expert called in the trial, also in Fallright’s case, was Dr. Emerson, a safety engineer, who formerly was a safety officer with the Sydney County Council. It was his view that the individual components that made up the harness, in this case, were suitable for use in general purpose applications, taking into account the need for compatibility, and also the fact that the effectiveness of the device was subject to its weakest link. He also said that this kind of equipment was specifically designed for people working in elevated places or platform vehicles, and was therefore aimed at a market of users who, in the ordinary course, would be expected to receive ongoing training in their use.

86 So far as the lanyard was concerned, he noted that there may be a slight inconvenience factor in the added weight of the 7mm steel wire lanyard, as compared with the lighter fibre lanyard. On the other hand, the effect of gravity would be more likely to keep it in its optimum location when it was less likely to twist in the way that might lead to the inadvertent roll out that can occur in certain configurations. The probability of that event occurring he thought to be “quite remote”.

87 Similarly to Dr Turner, he had a concern whether a screw gate karabiner could withstand the stress that it would be required to meet, if loaded across the screw mechanism. He also drew attention to the convenience aspect, the awkwardness of rotating the knurled screw behind the shoulder blades, the difficulty in testing to ensure that the screw was fully tightened, the problem of it moving with vibration, and its consequent proneness to revert to a single action hook. For those reasons, he thought karabiners to be more useful for emergency rescue activities, and sporting activities, such as ocean racing and mountaineering, than for the kind of application with which this case was concerned.

88 He similarly acknowledged in cross examination that in the early 1990’s there were hooks available that required forces in different directions to release the hasp.

89 The optimum position for the D ring he said, was between the shoulder blades of the wearer. The triangular portion of the harness onto which the container for the energy absorbing strap was stitched, he agreed, would normally lie against the wearer’s back, with the D ring between his shoulders and facing upwards. The triangle, he also agreed, would have the effect of compressing or restraining the wearer’s clothing, reducing the risk of it being caught in the hook.

90 So far as his experience went, he expected that a user would hook up by lifting his hand from below, as the plaintiff said that he had done, and not from above, as Dr Turner thought appropriate. The latter manoeuvre he did not think would be practical, although he accepted that ultimately it depended upon the individual to determine which way suited him. He added that he would test the connection once made, by pulling on it - in a way that he later described as “a reasonably sharp tug not sufficient to pull the (sacrificial) stitching”.

91 Hooking up in this fashion, and in circumstances where the wearer’s clothing was restrained, made it most unlikely, in his view, for the user to accidentally catch up a jumper on the hook. He agreed, however, that he had not conducted any practical experiment to test this view.

92 In cross examination by Mr Hoeben SC, he was taken back to the tug needed to test the connection:

“But you accept, do you not, that it can happen that a person could tug on the hook of the lanyard and the hook not release and yet the hook still not be properly connected?

A: depending on the way that the tug was applied. I suspect a lateral tug might just pull it a bit further along in the sandwich if you understand what I mean whereas a pull in the direction of the fall that would be arrested would click very clearly in such a way that you would know you were hooked on clearly.”

93 This was taken a little further by Mr Morris QC:

“Q. Doctor, a right handed man pulling out from the body on the lanyard, assuming it to be hooked into the webbing, may only be forcing the hasp of the hook falsely fixed more firmly into the webbing, might he not? A. He could well be, yes, yes.”

“Q. Now, I want to take the severed harness which is Exhibit D. A right handed person could easily engage the webbing? A. I would concede that, yes.

Q. And tug it very firmly indeed? A. Yes, I would concede that.

Q. And not dislodge it; is that right? A. Yes.

…

Q. Could partially engage the D and get a metallic sound from the hook and I demonstrate your Honour partly across the holding portion of the D and pull it? A. Yes.

Q. Very vigorously and still not disengage it? A. And the confounding thing would be you would get that metallic --

Q. The sound? A. Yes, yes.

Q. You have mentioned metallic sound in your first report? A. Yes, yes. For example, if it dropped into the bottom of the bucket you would hear it if it did that.

Q. yes, but you can make a firm affixation which would reaffirm a user that he has made a correct connection? A. Well, I would have to agree with that and I have never denied that in any way.”

94 In relation to the risks of imperfect connection, and in relation to the need for a warning or instruction his position was initially encapsulated in the following passages of evidence:

“Q. … what I am suggesting to you is that a system which involves the connection of the red hook end of the lanyard to the D ring on the harness such as been shown to you would always have the inherent danger of the connection being incorrectly made if it had to be done behind the back and you couldn’t actually see or visualise it? A. Yes, there is a remote possibility that the red hook could become sandwiched in a way and not actually on the hooked over the D ring. It could be inadvertently connected in the wrong way irrespective of any clothing. That is a remote possibility.

Q. Why do you say remote, doctor? A. Well, if you are using these things on a day to day basis and if you have been exposed to any training you would have it in your mind that it is necessary to tug at it and ensure that it is satisfactorily hooked on. It is such an easy test to undertake.

Q. On the assumption that you are a busy workman? A. yes.

Q. You have got your mind focused on the job. You have used the equipment before? A. yes.

Q. You propose to attach the red hook from underneath? A. yes.

Q. As you have demonstrated. You believe you have done so. You give it a tug. It holds apparently. Would you not reasonably believe that you had made a proper connection? A. Well, it would be hinged to a large extent on just how you went about that tug. I know how I would go about the tug and how I have done it in the same situation. Its, you know, it can be a life and death situation and you really do need to make sure that the tug is correct.

Q. But I think, as you have indicated, Doctor, familiarity does sometimes breed a little element of carelessness? A. Yes, well, there is no doubt in my mind that what you say is correct. I have had many many years of examining just those things, that we are not always dealing with a perfect world and a perfect set of conditions and this error does creep in, of course.

Q. So an organisation designing a harness which is intended to be used in a life and death situation such as you have described ought have it in mind, would you agree, that a person who is obliged to connect a key part of the apparatus, that is the lanyard to the harness behind his or her back where they can’t see it might make a mistake? A. I can see that a mistake could follow, but it doesn’t necessarily follow that strict instructions ought to be issued to that extent because it is such a blatantly obvious thing, to my mind anyway, but I am an engineer --

Q. Would it be helpful, Doctor, do you agree, that in the instructions that went with the harness when it was supplied to the end user, to the employer, to have a requirement that either the lanyard be connected to the D ring before the harness was put on or that the connection of the D ring to the lanyard should be checked or visualised by a fellow worker? A. I have got to answer you to the effect that it would be a helpful thing, but I don’t see it in any way as being essential. It has got to be helpful, but, again, it depends on the nature of the supervision, how well it is explained. It is blatantly obvious why you need this device.”

“Q. But equally Doctor, would you not agree with me that the simplest and by far the safest method would be to have a protocol or a direction that the lanyard was to be connected to the D ring before the harness was put on? A. That would, of course, reduce the risk completely. Yes, I would agree that it is a good protocol, but, again, I would say it is not essential, but it would be useful, but then you have got another practical aspect. You have got the added weight of a 1.75 metre length of, you know, wire to cart around and in some cases it would be convenient to undo that hook. You have got to sort of balance this again with the wearer acceptability. This has been my biggest problem in field work and supervising field work, to ensure the safeguards are used. They are useless if they don’t and they are passive requirements.”

95 He did agree that there was room on the inside of the harness for an instruction such as “affix lanyard to the D ring prior to putting on harness”. This was taken a little further in the following passage of evidence:

“…in the business of safety any instructions are advantageous, but they are not essential in every case. There must be a proper understanding of the use of this equipment. Now, that is a supervisory function as well.

Q. Well, is it thereby suggested that when this equipment is marketed a manual should be provided with it setting out in the clearest possible terms the instructions to be delivered to those who use it before it is used? A. Well, of course, I would have to agree with you, that’s desirable, but its not necessarily essential. Its a good marketing strategy to do that.”

96 He also agreed that in his report of 2 February 1998, he had suggested that hooking up before donning he harness was the procedure that should be followed. In cross examination he explained this passage of his report in the following way:

“A. Well, that would be a logical preference. It’s not essential for that to happen and there are reasons of inconvenience where you have to lug the extra weight of the lanyard around that would negate that, but from a common sense point of view, yes, it’s a good alternative option.”

97 The risk of imperfect connection having been conceded by Dr Emerson as noted above, Mr Morris took him back to the need for an instruction in the following passages of cross examination:

“Q. Where the D can’t be visualised that’s more than just a theoretical risk, isn’t it? That is a very real risk? ?A. Yes, there is a risk, but in this document you drew my attention to, there is a requirement for training and these things ought to be known.

Q. But also don’t you think that is a requirement for instruction? A. Oh yes.

Q. You see, it could be simply placed opposite this indelible instruction on exhibit D, couldn’t it? A. Well, of course it could be, but it is not usual to do that. You --

Q. But the critical thing to do which the harness is directed is it is saving the man’s life? A. Well, that is the whole basis of it.

Q. And there are two pieces of metal where you could hook it? A. yes.

Q. There (indicated) and higher on the D (indicated) and pull it so you were falsely assured you were secured? A. yes.

Q. And that might not be necessarily obvious to a user unless he was continually forewarned of it. That is fair, isn’t it? A. Yes, it would. In this principle of the tug you are really rattling the thing around to ensure that it is on the D because you have got metal to metal there, not metal to fabric.

Q. But, look, you can get it on there (indicated) and rattle it around, can’t you? A. To a lesser extent, yes, of course.

Q. But you see, every time the man picked up the harness whether it be from Kennards or during the course of his employment there would be a warning that it should be properly secured to the D ring and that it should be placed on the D ring when the harness is put on it? A. yes, well, I would agree with that, but these things are so obvious in the way they are - there’s no engineering tricks to this. They are simple devices. A simple hook overing is not a complex phenomena, that is, anyone would recognise the requirements to hook it on in a proper manner.”

98 As previously mentioned, Dr. Emerson regarded instruction in the use of the harness as important, both initially and with a supervisory and hook up component. He did not regard it as adequate to leave it to a co-worker to give some quick instruction as to the way in which the harness was to be donned, and the buckles adjusted. That, he said, is how accidents happen.

99 As to causation, it was his opinion, based upon the experiments that he had carried out in relation to the gravitational effect of the lanyard, that the possibility of the hook having been properly attached, and having then suffered roll out, as the result of pressure upon the latches, was a “very very unlikely event”, and later as an “extremely remote possibility”. He added that the “minimum probability of (the conditions required for that event) being met, in the scenario that (he) evaluated, would make it almost impossible for me to say that this (hook) could have inadvertently rolled out.” His position was perhaps best encapsulated in the following passage of evidence:

“Q. You would say that although not utterly impossible, it could only be the result of a freakish combination of circumstances? A. An extremely freakish. You have to depress the first catch at least 7 millimetres in order for the second or the hook to start to move off its position where it would afford maximum safety and that requires a pressure 180 degrees out of phase. Now, a static pressure possibly could cause an out of phase movement if pressure was applied in that direction, but it would not be a simultaneous action. It would be a consecutive action as required by the standards.”

100 This was taken a little further by Mr Morris QC:

“Q. And indeed I suggest to you that the hook in Exhibit F which is the red hook can be opened by pressure in a single direction? A. I wouldn’t agree with that. No, it has to be in pressure 180 degrees in opposition or out of phase.

Q. You see, if pressure is directed against the face of both hooks, against a fixed object? A. yes.

Q. they will open, will they not? A. Against the fixed object, but certainly not simultaneously because there is a time lag and accidents of separation of damaging in energy and time and space there is a time lag of at least the time it takes for 7 millimetres of that safety catch to be depressed before the main tongue will open. So it is not simultaneous, it is a consecutive action.

Q. But it can be done by a non deliberate movement, can’t it? It can be done by accidental movement, can’t it? A. It could be, but to simulate that kind of situation in the scenario that we are talking about whereby this accident occurred would be most most difficult. I have tried to and I have been through it many times, like in simulated tests.”

….

Q. But that could occur accidentally if the hook was forced up against the side of a cherry picker bucket, couldn’t it? A. But that’s not in any way compatible with the evidence where the plaintiff is leaning forward and you have also got the effect of the gravity of a reasonably heavy metal lanyard that’s dragging the hook into the optimum safety position and for this to happen, and I mean I have got to be impartial to survive in this industry, as you know, and I mean I can turn the thing back on itself and push it against some object and probably demonstrate to you how that could all be done, but that’s not demonstrating how it could possibly have been done at the time of the injury occurrence.”

…

Q. Do you agree that it is easy to demonstrate it with these hooks? A. I have demonstrated it by fiddling with it myself that it can be done, but in this very unlikely circumstance it has to be in a certain configuration which I can’t, I cannot equate with the facts given to me of this accident.”

101 The circumstances of roll out of this kind occurring was left between the witness and Mr. Morris QC as something that was “possible but highly unlikely”. In his view, the “most likely scenario” was one of imperfect connection.

102 Reports from two further experts were tendered. They were not called as witnesses, and their reports provided little by way of additional insight into the cause of the accident, or in relation to the issues that arise.

103 Dr. Griffiths, a bio medical and mechanical engineer, agreed that it was possible to demonstrate an inadvertent release of the double acting hook, and also agreed that there are closed hooks available that provide more secure methods of guarding against inadvertent hook opening. However, he did not agree that inadvertent release was simple to achieve or likely to occur. He said that, assuming the lanyard was attached at one end to the bucket, and at the other end to the rear of the neck of the safety harness, gravity would have held it down and in tension. In that position he thought it “difficult to see any possible contact that the wearer ... could have had, to have caused a simultaneous release of the double-acting safety catches”. Later in his report he said "it would be very difficult, if not impossible, to demonstrate a realistic inadvertent unlatching of the safety lanyard from the upper point of the harness on a real person in a real cherry picker bucket.”

104 The final report of this kind came from Dr Ward of Insearch, an engineer and academic in the areas of management, and industrial safety and risk.

105 As to the hook, he said that it was possible to depress the safety latch by pressing the side of the hook against a surface such as the bucket wall, by a definite and deliberate action, but then the keeper latch would be in the clear and unlikely to be in a position to be also depressed, so as to allow the D-ring to slip out of the hook. Moreover, a person standing in the bucket would have the hook hanging down from the D ring and lying flat against his back, in an orientation that would make pressing the safety latch against the wall very difficult. He also thought it very difficult, due to the limited size of the bucket, for a person to bend over into a position where the safety latch could press against the bucket wall. In a later section of his report, when commenting on Dr Emerson’s report, he made it clear that he thought accidental roll out through hook compression to be “almost impossible.” This conclusion was supported by his later unsuccessful attempts to replicate accidental roll out while wearing the harness, and bending and squatting in the bucket of the Yoogali cherry picker. He also supported Dr Emerson’s opinion, contradictory of Dr Olsen’s assessment, that the latches could be operated simultaneously, since the safety latch must be depressed first, after which the keeper latch may be opened.

106 He observed in relation to the other aspect of causation, that “it is possible, but difficult and awkward for a person already wearing a harness to secure the hook onto the D ring; my impression is that it makes better sense for the worker to don the harness and then have another (person) snap the hook into place.” His further experiments, with the harness donned, led him to the view that while he could reach over his shoulder, pick up the D ring with one hand, while holding the latch open with the other hand, and snap the hook into place, he could not do this by reaching from below, although he recognised that a more supple person might be able to do so.

107 In its case, Moxham called Ian Travers the Technical Support Manager of that party. Although not strictly qualified as an expert, by reason of his absence of qualifications in engineering or ergonomics, he had considerable experience in fall protection equipment, acquired over his twenty-odd years with the company.

108 He said that in 1995, there were a variety of hooks and connectors on the market, including two that would achieve the objective of ensuring that a worker could not detach the lanyard from the harness. They include the tube nut connector previously mentioned, which produces a semi permanent fixture since it requires a tool to open and close it, and a hammer lock which requires a hammer and drill to punch out a locking pin.

109 He also said that in some circumstances a strong permanent attachment was desirable, but in other circumstances undesirable. Despite objections to this evidence, so much would appear to be common sense, since as Mr. Travers explained, some work activities with a permanently attached lanyard could be either a nuisance or dangerous, for example where there was a risk of snagging or being caught in moving machinery.

110 The point that Mr. Travers sought to emphasise, in relation to the various hook options available, was that their choice ultimately depended upon the purpose for which the fall arrest device was to be used, the harness being marketed to take whatever hook anybody elected to place upon it, ie subject to the components being compatible - a matter taken up in the 1983 Standard.

111 In cross examination he agreed that it had been known for many years that it was essential for the D ring and hook to mate, so that it would not be possible for the ring to bring pressure on the snap hook latch in a way that might release it. This was also recognised in the 1983 Standard.

112 He said, as is shown on the diagram attached to the harness, that the proper position for the D ring to be positioned is on the wearer’s back, between the shoulder blades. That is a position at which he thought that it could be reached by the wearer from above, but not from below. In this position, as he demonstrated, the triangle containing the energy absorber operated to restrain any clothing worn under the harness, thereby reducing the risk of the hook being caught up in it.

113 He endeavoured to demonstrate, in a way that was not at all apparent to me, that the wearer could visualise the connection between the D ring and hook, when the latter was lifted vertically, by turning his head. There was some possibility of this being, in the position in which the model for his demonstration was wearing the harness, if the lanyard was pulled at a fairly sharp angle to the side, but not, so it seemed to me, without a great deal of difficulty and uncertainty.

114 While accepting the possibility that the user might fail to effect a secure connection when the act could not be visualised, or when something was caught between the jaws of the hook, he did not believe that it would be easy to get into that situation, and added that a visual or tactile check, before applying a load, would discover it.

115 As to instruction, Mr Moxham explained there was a swing tag attached to the harness which it supplied and shipped in stowage bags contained in individual cartons. That tag comprised a small booklet with text on four sides.

116 The text of that swing tag, suggested to be of relevance in the present case included the warnings:

“Take care of it (the harness). Your life may depend on it”,

“the lanyard used with this harness must be secured to the D ring placed high on the harness between the shoulder blades”.

117 Otherwise, all that it specified in relation to the hook was:

“Always check snap hook latches. The latch on the levitator hook is robust and made of alloy steel. With harsh treatment, however, latches may distort. Before and after every use the latches on the snap hook should be checked for free movement over the full travel.”

118 This clearly was in the context of ongoing inspection of the snap hook before and after use. Nothing was provided by way of caution in effecting the connection.

119 Mr. Travers agreed that the information on the swing tag was the totality of the warning that Moxham had thought necessary to provide with the harness in 1995/1996, although he suggested that by pointing to the 1983 Australian Standard 2626, it should be understood as incorporating its provisions, even though the reference was in the context of advice as to “Care of the harness - Inspection and Maintenance”, rather than to its use.

120 This document did contain advice to the effect that the harness was not to be used if the risk of free fall exceeded 1.8 metres, a matter he explained that depended substantially upon the height of the fixed point to which the free end of the lanyard was attached, and also advice as to destruction of the product once a fall had been sustained using it. Otherwise, it contained instructions as to the way in which the harness was to be donned, and the way in which the body belt, leg straps and shoulder straps were to be fastened, buckled and adjusted as the case may be. It was silent as to the attachment of the lanyard, save for the advice that it should be secured to the “D ring placed high on the harness between the shoulder blades”.

121 Mr. Travers said that Moxham now provided, with the harness, a two-page information pamphlet in relation to harnesses, lanyards and snap hooks. It would seem from his later evidence that this pamphlet was introduced in about October 1999, and followed introduction or modification of the Australian Standard 1981.1. In relation to snap hooks, it commences by stating that it is the responsibility of the owner to ensure that the instructions are understood by all users, and also to ensure that training of users in the use, care and inspection of snap hooks is provided. Although these instructions are no doubt intended to relate to snap hooks provided by Moxham, the instructions given are more general and are given in the context of their use in conjunction with a safety harness.

122 Among other things this document warns the user not to “allow the locking hook to be nearest to your body ... the latch could be pushed against waist or leg and accidentally opened.” In a diagrammatic way it shows permitted and forbidden configurations as to the position of the hook. The purpose of such instruction, he accepted, was to avoid accidental roll out, of the kind discussed by the other witnesses, when a force in one direction was likely to activate the release mechanism. It was evident that he regarded the occasion for its occurrence as extremely rare, although apparently not so rare as to exclude it from any instruction pamphlet.

123 The pamphlet contains additional instructions, as follows, under a heading in capital letters: “SNAP HOOKS WARNING”:

“Do not rely on the feel or sound of a snap hook closure. Always visually check that the latches are fully engaged before applying a load”;

“Do not use a snap hook on equipment that will create a side loading on the latches”;

“Do not attach foreign objects to D rings. They may prevent the correct engagement of the hook, or give the user a false indication of the hook closure” and

“Do not allow the latches of the snap hook to be pushed from either side by the D ring, rope, branches, twigs, or any other obstruction in a narrow space. This could allow ‘roll out’ to occur.”

124 Some of the above warnings are supplemented by diagrams as to correct and incorrect procedures and are clearly directed to potential problems of imperfect closure, false indication of closure and accidental roll out through compression forces or loads applied to snap hooks.

125 It was Mr. Travers’ assessment, as became clear in his cross examination by Mr. Morris QC, that he thought the risk of accidental roll out, both with single acting and double acting hooks, to be extremely remote. The chances of that occurring he thought had decreased after the introduction of double action hooks. The circumstances required for its occurrence, and the possible antidote, were explained most clearly in the following passage of his evidence:

“Q. But the rollover condition or the risk of it, although it may be slight, is brought about by confining the space between the D ring and the lanyard hook by pressing up against a solid object, isn’t it? A. I assume you mean roll out?

Q. The roll out, yes? A. Yes, yes. To bring a double acting hook circumstance, to bring in a roll out situation, you have to apply three forces from my understanding, one to each side of the hook to engage it and they actually can’t be simultaneous. Many hooks, actually I am not sure about this one will actually lock up if you apply them simultaneously. You bring in the secondary latch and the primary latch and then there has to be an unhooking motion as well.

Q. Some safety hooks, double acting hooks can open by a force in one direction creating an equal and opposite force on the other latch, can’t they? A. provided there is something on the other side to actually press against that’s theoretically possible, yes.

Q. And there are and were in 1995 hooks available which instead of requiring force in one direction required tension in the opposite direction and pressure on one side of the hook, is that right? A. Tension in the opposite direction?

Q. Well, instead of force in one direction the keeper of the security had to be pulled out and then the other one pushed, if you follow me? A. I think I know what you are talking about now. If its what I think it is, yeah, I can visualise there is a hook on the market that might be interpreted like that.”

126 Of immediate significance for the alternative hypothesis for disengagement is the warning which the pamphlet contains concerning the use of snap hooks, mentioned above (para 123).

127 The information in the pamphlet Mr. Travers agreed, was proper advice. Somewhat contradictorily, however, he said that he saw no reason to agree with the proposition that this was wisdom known to Moxham in the 1990’s, or with the proposition that it was not safe for a user to assume that he was connected to an unseen D ring by feel. He thought that the connection could be checked by feel or by a jerk on the hook. This was taken further by Mr Morris QC, in the following passages of his cross examination:

“Q. Now, would you agree with me that it would be unwise to rely upon feel to determine if it were properly attached when the attachment is invisible? A. If you had no other opportunity, in other words, I would say the feel that was your very very last resort. Alternatives were getting someone to look at it connecting, taking the harness off and look at it yourself. Any one of a number of things.

Q. And equally unwise because you can get a false hook up on the bottom of the D ring can’t you? You can get a false - ? A. Not easily. To get a false hook up there what you have go to do is push that webbing right across so it is not an easy thing to do (witness indicated) so you have gone to your main one there, if you did that, say you managed to do that, and you took a fall on that, it would obviously tear out and do a bit of damage to the hook I would imagine, but you could certainly --

Q. What about partial engagement where the eye of the hook goes in between the parallel bars at the bottom of the D:? A. We wouldn’t recommend that at all.

Q. No, but you would get the sound of metal closure wouldn’t you? A. Not really, no. As you saw, the latch was held off there.

Q. No, but like that (indicated) I demonstrated the sound to you. You see your warning? A. Even then when it was held off like that when the latch was held, when the gentleman was showing it was partly in. When it would come on a load it would engage.”

128 Somewhat defensively and most unconvincingly, he sought to justify the absence of any earlier specific warning in these terms, upon the basis that it was “common sense that you would visually check your connection”; and/or upon the basis that it was not called for in the earlier 1983 Standard; and/or upon the basis that at least some of the hooks currently available (ie from 1999 or thereabouts) have stamped on them a caution as to the need for the wearer to make sure the latch was closed properly; and/or upon the basis that cross reference to care and use standard 2626 of 1983 might fill the gap.

129 He accepted that the indelible warning on the harness was intended to last for its working life, and that the aim of the instructions and picturegrams upon one of its straps, was to instruct the potential wearer, in the interests of his safety. He agreed, additionally, that there was room upon the other strap of the harness for a warning as to the need for care with the snap hook closure; and that the printing of indelible labels is not expensive in the overall cost of the harness.

130 He recognised the possibility that the harness could be used outside a formally supervised environment - for example by someone hiring a cherry picker from an equipment hire company. He added, however, that Moxham “would not recommend the use of the product unless it is being used by someone who is trained in (its use) with appropriate matching equipment.” He suggested that advice to that effect was supplied with the leaflets that go with the product, and that Moxham provided training, free of charge, to potential consumers. Examination of the swing tag pamphlet (Ex 14) he agreed, contained no such suggestion, compared with the later pamphlet (Ex N) which provided:

“Warning” properly trained personnel must only use this equipment”.

131 As previously mentioned, reference to AS 2626 was made in the context of the recommendation for regular inspection of the belt and harness assembly, and the leaflet gave no indication that the purchaser or user should further access the standard in a way that might bring home the need for training or care in relation to snap hook closure.

132 Mr. Travers said that apart from the present case, no similar incident of harness failure and fall had been reported to him. Although he had difficulty in seeing how the plaintiff’s fall could have been due to him not making a proper connection, either because of the interruption of his clothing, or hooking the webbing, it is clear that he thought the alternative of accidental roll out through the hook striking the wall of the bucket, even more unlikely due to the combination of circumstances that are required for its occurrence.

133 Obviously, it was his favoured view that the plaintiff had not made any form of connection at all, particularly since he thought there would have been signs of damage to the webbing or stitching. This possibility, however, I would exclude in the light of the evidence of the plaintiff and of his brother, and in light of the improbability of the plaintiff having gone to the trouble of hooking the lanyard to the bucket, yet not to his harness.

134 The one point upon which all of the witnesses were agreed was that the value of the harness as a safety item was dependent upon the integrity of the connection of the lanyard to the D ring. Equally, they were agreed that there had to be a compatibility of all of the components (a matter confirmed in the 1983 Standard clause 3.3 - ie prior to the requirement for double action hooks), and that the device was only as good as the sum of all of its parts. This is an important consideration in the case of a piece of equipment that is designed to provide a last line of defence against a potentially catastrophic fall, of the kind the plaintiff suffered.

135 Having regard to the general thrust of the expert evidence, and of Mr. Travers’ evidence, I am of the view that accidental roll out can be excluded. That follows from my assessment that it was utterly improbable, in the work position of the plaintiff, for there to have been the combination of circumstances required for an accidental disengagement of the hook, occurring either when the plaintiff bumped the back of the bucket when he bent down, or when the bucket suddenly and unexpectedly, tipped forward. For this to occur the hook and D ring had to be so positioned for compression force on one side to generate a reciprocal force in the opposite direction sufficient to open the two latches, and for that force to be maintained for a sufficient time to allow the hook to open and slide off the D ring. Additionally, it required the D ring and hook to be so positioned that they could slide apart while the jaws of the hook remained open.

136 While this event could be simulated in a static position, with the hook and D ring placed or allowed to fall into the necessary configuration, as Dr Olsen showed in the witness box, yet conceded was “a most unusual configuration” (Report of 23 March 2000), the chances of this occurring in a dynamic work situation appear to me to be so remote as to be safely excluded in this case. Furthermore, the assumption that the plaintiff may have pressed the hook against the side or back of the bucket while bending or squatting to search for a tool, is at best dubious, since such a movement would be more likely to move the hook away from any such point of contact.

137 Both Dr. Emerson and Dr. Griffiths made this latter point with some clarity in their reports. It was made even more positively by Dr. Ward, who endeavoured, without success, to achieve the kind of contact with the bucket wall, and the orientation of the D ring and hook, that would produce roll out, by wearing the harness and squatting and bending in the bucket of the Yoogali cherry picker, in various positions including those that might have been adopted by the plaintiff when bending or squatting to search for a spanner or welder.

138 The extremely remote possibility of roll out occurring in the situation in which the plaintiff was working was accordingly recognised by all of the witnesses who dealt with this issue, including Mr. Travers.

139 Upon a balance of probabilities, and in accordance with the passage from Bradshaw v McEwans Pty Ltd cited in Luxton v Vines (1952) 85 CLR 352 at 358, I am satisfied that the cause of the disengagement was imperfect connection of the lanyard, due either to attachment of the hook to the webbing, or to the side of the D ring, or due to interrupted closure when caught up by the plaintiff’s clothing. This is not a case of a choice between conflicting inferences of equal degree of probability capable of resolution only by conjecture. That there was an attempt at connection, and belief on the plaintiff’s part as to connection, follows from the evidence I have previously mentioned from him and from his brother.

140 Although there was some suggestion by the experts that the plaintiff would have heard the hook fall to the floor of the bucket if it had been imperfectly connected, this overlooks the more likely event that the ‘connection’ continued until the force of the fall pulled the hook off whatever it was to which the imperfect attachment was made. It also overlooks the problem of hearing such a noise in a working environment in which equipment is being used, and a worker is engaged in a task.

141 This disposes of the case so far as Fallright and SSE are concerned, since there was no suggestion of any other deficiency in the hook, that could have contributed to the failure of the fall arrest device to prevent the plaintiff’s fall.

142 Although a number of other kinds of hooks were shown to be available, such as a Karabiner, a screw gate swivelling hook, a hook that requires tension on one side and pressure on the other side, and that does not respond to reciprocally opposed forces, tube nut connectors and so on, clearly the choice of hook, and particularly the decision as to whether to use one that would involve a permanent or semi permanent connection, would depend upon the job for which the harness was required. In some applications, as the evidence showed, a permanent attachment would be undesirable or uncomfortable or even dangerous. In other situations, it could be advantageous.

143 Connecting a Karabiner or different form of snap hook behind the wearer’s back would not be any easier than the hook used in this case; and the form of hook that does not respond to reciprocal opposing forces may itself suffer from roll out if it is subjected to forces from different directions, it being accepted that no form of hook other than one that is permanently connected, can be totally immune to roll out.

144 No case was particularised, or pursued, against the hook manufacturers and suppliers for the absence of any relevant warning of the kind that now seems to be stamped on hooks, concerning the need to ensure or to check the integrity of the connection, a fact that emerged for the first time in the evidence of Mr. Travers. In those circumstances, it would be inappropriate to consider an “instruction case” against those parties, or to consider whether any such responsibility should be shared with the harness supplier, given the many potential applications of snap hooks - this being a matter of which the parties had no notice or opportunity to explore.

145 In all these circumstances, I am unpersuaded that the design of the hook had anything to do with the accident, or that the possible but rare condition of roll out was a causative factor in this case.

146 The finding I therefore make in relation to the first issue in that the harness failed to arrest the plaintiff’s fall because the hook was not properly connected to the D ring, even though the plaintiff understood that to have been the case.

HOOK DESIGN - LIABILITY OF FALLRIGHT AND SSE

147 I therefore find this issue in favour of Fallright and SSE. Specifically, no occasion arises for either of these parties to be found liable to the plaintiff or to the cross claimants for any reason associated with the design or supply of the hook. They are entitled to a verdict accordingly.

HARNESS DESIGN AND INSTRUCTIONS - LIABILITY OF MOXHAM AND KUBA

148 No complaint was made, nor could it have been, in relation to the design of the harness which all the expert witnesses regarded as complying with the relevant Australian Standard, and as suitable as a general purpose fall arrest device. Similarly, no fault was found, or complaint made in relation to the lanyard. The sole complaint pursued was in relation to the absence of any sufficient instruction as to the use of the harness and lanyard, and the absence of any sufficient warning concerning the risk of the event which I find prevented the plaintiff’s fall from being arrested.

149 In substance, the claim against Kuba and Moxham depended upon proof that there were relevant risks that were not identified by those defendants, and that information as to the various procedures that were available that would eliminate or avoid those risks should have been provided.

150 Each of the expert witnesses recognised that there was an inherent danger in effecting a connection to the harness, while it was being worn, that depended upon a hook being connected unseen to a D ring behind the wearer’s back. However done, and wherever the D ring was placed on the back of the wearer, it is extremely difficult if not impossible for the connection to be visualised. As was demonstrated in the witness box, it is possible, when making a connection, to gain the impression both by sound and by feel, that it was properly made. Moreover, the evidence established, as noted earlier, that while a firm tug on the hook, or sliding it along the D ring, could reveal an imperfect connection, that was not necessarily or inevitably so. Either way, a false positive could be generated if the wearer was to connect up behind his back, and to make either of the suggested tests, unchecked by a co-worker or supervisor.

151 The risk of an imperfect connection being made was in my view both real, foreseeable and neither fanciful or far-fetched. The potential consequences of it occurring were significant since the integrity of the connection was the one thing that stood between a safe arrest in the event of a fall, and death or serious injury.

152 As I have noted, several possibilities or safeguards for an improved or safer means of connection were explored. The suggestion advanced, at one point, of increasing the length of the extension strap to which the D ring was connected, or of allowing greater slack in the energy absorber device, was ultimately shown to be impractical, and can be dismissed.

153 The other possibilities examined cannot however be dismissed, either as impractical, or as other than as sensible precautions, that should have been taken and that would have prevented the failure of the harness to arrest the plaintiff’s fall. Each of them would in my view have led to that result. They were:

a) having someone else make the connection;

b) having someone else check that the connection was properly made, and/or

154 That the risk was real was graphically demonstrated during the evidence, it being the case that there were places on the harness fairly close to the D ring, both webbing and metal, to which the hook could be inadvertently attached. Moreover, it was demonstrated that tugging on the hook could readily give a false positive.

155 The plaintiff said that, had an instruction been included within the indelible label, to the effect that the lanyard should be hooked onto the D ring before the harness was fitted, then he would have followed it. It may be assumed, from the evidence that he gave in relation to instructions or warnings of this kind, that had one been supplied in relation to the other two matters identified, then he would have also complied with them.

156 He said that he was never warned of the risk of securing the hook on the lanyard only partially to the D ring, or to the webbing, or of the integrity of the connection being affected by the hook being jammed by an article of clothing, or of the desirability of having a co-worker make the connection or check it before using the bucket.

157 In my view, his evidence in these respects was credible and understandable. Absent specific training, or a warning concerning the risk of imperfect connection, I am not persuaded, despite the evidence of some of the experts to the contrary, that the risks or the solutions were so obvious as not to require the provision of an appropriate instruction, ie assuming, for the moment, the existence of a duty of the kind pleaded, resting upon Moxham and Kuba, a matter to which I will next come.

158 While both the risks and the solution may have been obvious to the experts, either because of their concern with safety matters, or because of their familiarity with the use of such equipment in the course of their work, the same cannot be assumed of the casual user, or of the worker who is required to don and use the harness in a noisy and busy work environment, where he may be preoccupied with other activities.

159 As I have observed earlier, instructions concerning the way in which the harness was to be worn, and the need for care in its maintenance were provided, in a permanent form, by way of an indelible label. That it was thought necessary for users to have such advice and a permanent reminder of their terms, indicates that they were regarded as of some importance and that it was practical to supply them in this way.

160 Donning and buckling up the harness in the correct manner is only the first step. Equally important for a device designed to prevent the catastrophic consequences of a fall from an elevated position, is anchoring the harness by means of a lanyard to a secure point at one end, and to the worker at the other end.

161 Although some of the experts suggested that an instruction as to this critical step was not necessary, or was less important, for example, than other possible warnings, or that the manufacture and supplier were entitle to assume an understanding by a consumer and user as to the need for care with the connection, I am unable to agree with that view. The need for it, in view of the risk of error and of receiving a false positive and the potentially devastating consequences of an imperfect connection, was in my view compelling.

162 There was no practical problem or inconvenience in its provision, as is demonstrated by the current pamphlet and the caution now stamped on the hooks themselves. Moreover, as Mr. Travers conceded, the cost of an indelible instruction would not have been of any significance, and there is room for it on the harness. Equally, the cost of adding a suitable paragraph in the advice on the swing tag, or in a pamphlet, or manual or product brochure, provided with the harness, would have been insignificant. Both the provision of suitable advice in the accompanying literature and upon the harness itself would significantly add to the safety of the product, and in my view would have avoided the situation which occurred in this case.

163 That there was a particular need for such an instruction was in fact supported by the evidence of Mr. Travers, and of the other witnesses who spoke of the need for the training of workers who are to use such harnesses.

The question which then arises is whether, in the general circumstances outlined, and in the light of the nature and extent of the risk, and the consequences of an imperfect connection, a relevant duty attached at law to Moxham and/or to Kuba, either at general law or otherwise, to provide an instruction or warning along with the harness (Moxham) or with the complete unit (Kuba)?

In my view, Moxham owed a duty of care to an end user to supply such information and instructions in relation to the harnesses which it supplied, so as to ensure their safety in use. The existence of that duty I regard as established, not only by the element of forseeability as defined in Wyong Shire Council v Shirt (1980) 146 CLR 40 at pp 47 to 48, but also by the element of proximity which must be accepted as existing between a supplier and a consumer or end user of a product placed upon the market by that supplier, and by the vulnerability of a person in the position of the plaintiff, upon whose life, the effectiveness of the fall arrest device was likely to depend: Crimmins v Stevedoring Industry Finance Committee (1999) 167 ALR 1; Perre v Apand Pty Ltd (1999) 198 CLR 180; and Pyrenees Shire Council v Day (1998) 192 CLR 330.

166 As manufacturer and supplier of the harness, I am satisfied that Moxham knew, or ought reasonably to have known, by reason of the planned location of the D ring between the wearer’s shoulders, that a user would be unable to visualise the necessary connection of the lanyard to it, and that there was a realistic risk of imperfect connection occurring, with potentially disastrous consequences if the device was called upon to arrest a fall. As such it should, in my view, conformably with the duty of care resting upon it, have drawn attention to that risk, and have provided clear instructions and warnings of it, and of the need for the wearer to hook up before donning the jacket, or otherwise to have a co-worker make or visually check the connection before placing himself in a situation, where there was a potential for a fall, and not to rely simply on the feel or sound of a snap hook closure.

167 Such warning and instruction, I am satisfied should have been included in the company’s product brochure. It should also have been provided to potential consumers and users in the form of an instruction pamphlet. It should additionally have been included in an indelible and permanent label on the harness itself, so as to bring the relevant matters to the attention of any worker using the product. The latter precaution was in my view important, having regard to the fact that the end user may not have been the buyer.

168 It was submitted that the Australian Standard provided the measure of Moxham’s duty to the plaintiff, and that since the harness generally complied with its requirements, there was no breach of that duty. This submission is not made good.

169 Mere compliance with a Standard, or even with common practice, does not solely or even primarily determine whether negligence exists or not: Florida Hotels v Mayo (1965) 113 CLR 588 at 593; Rogers v Whitaker (1992) 175 CLR 479 at 487; Mercer v Commissioner for Road Transport & Tramways (1936) 56 CLR 580 at 589. Evidence as to practice, or as to the existence of a Standard remains relevant, and it may help in determining what proper care and skill requires to be done in a particular context. However, in the end it is for the Court to adjudicate upon what is the appropriate standard of care: Ainsworth v Levi NSWCA 30 August 1995 unreported; Shead v Hooley [2000] NSWCA 362; and The Council of the Shire of Muswellbrook v Lettice [2000] NSWCA 359. In the present case, I am of the view that the problem was insufficiently addressed by those responsible for the Standard, and I consider that the standard of care resting upon the parties called for specificity in the instructions as to the way in which the worker should be hooked up, and as to the possible dangers that exist in this regard.

170 In my assessment, the same considerations applied to Kuba in relation to the existence of a duty of care, as applied to Moxham. The elements of forseeability, proximity and vulnerability mentioned earlier had no less force or relevance for Kuba, as the party who put together the entire package, and then supplied it to the plaintiff’s employer.

171 It may be accepted that the mere fact of entry into a contract for the sale of goods does not necessarily establish a duty of care: Laundess v Laundess (1994) Australian Torts Reports 81-316; Cavanagh & Phegan; Product Liability in Australia, p.510; and Fleming The Law of Torts in Australia, 9th ed. p. 457. The existence of the duty depends upon the nature of the goods sold, the risk involved and the extent to which that risk was known to, or should have reasonably been known to the supplier. In the present case, Kuba was informed of the precise application for which the equipment was needed, it knew that the harness was to be used in relation to work at heights greater than 1.8 metres above ground level, an activity that had a potential for injury through fall, and it knew or ought reasonably to have known, of the risk of the imperfect connection of the lanyard to the harness.

172 Moreover, Kuba was not merely an intermediate supplier which passed on a product manufactured by Moxham. It matched a lanyard and hooks to the harness, it repackaged them and it held itself out as expert in the field of safety equipment.

173 It is obvious that Yoogali sought its advice as to the appropriate product for that reason, and that it relied upon that advice in purchasing the two harnesses with their associated components, as effective and complete fall-arrest devices.

174 The reasoning in decisions such as Hadley v Droitwich Construction Co Ltd (1967) 3 All ER 911 and Anderson v Corporation of the City of Enfield (1983) 34 SASR 472 supports the existence of a duty of care on Kuba’s part.

175 I am similarly satisfied that Kuba should, conformably with the duty of care attaching to it, have warned, by advice in its catalogue, and by appropriate instruction, included in a pamphlet or user’s manual supplied with the product, both of the risk identified, and of the way that it could be overcome.

176 While it may not have been appropriate for it to tamper with the Moxham harness by adding a label of its own, it could have asked that company, as its supplier, to affix a further label, or alternatively it could have included the necessary instruction pamphlet with the product when it on sold it, along with the lanyard and hooks which were to be attached to it. The information and warning it should have provided, conformably with the duty resting upon it, was in my view, co-extensive with that expected of Moxham.

177 Similarly, I am satisfied that Kuba cannot rely upon compliance of the harness, and of the associated components, with the Australian Standard as negating any breach of its duty of care.

178 Finally, I observe in relation to the various submissions advanced by Kuba and Moxham in relation to causation, that I am satisfied had the necessary warning and instructions been supplied when the harness was sold, and indelibly inscribed on the harness, that the plaintiff would have followed them. His evidence in that regard I accept. I am not persuaded that written instructions would have been ignored had they been supplied to Yoogali, particularly in view of the fact that it, and the plaintiff, had been recently prosecuted. Causation in the sense explained in Chappel v Hart (1998) 195 CLR 232 has been established.

179 In those circumstances, I find that negligence has been established against each of Moxham and Kuba, and that the plaintiff is entitled to recover damages, in the agreed uncapped sum of $6.2m against each of those parties.

RECOVERY UNDER THE TRADE PRACTICES ACT

180 This issue relates potentially only to Moxham, the plaintiff’s claim against Kuba being one based solely upon negligence.

181 The relevant provision upon which reliance was placed is S 75AD, of the Act, which is in the following terms:

“75AD If

a) a corporation in trade or commerce, supplies goods manufactured by it; and

b) they have a defect; and

c) because of the defect, an individual suffers injuries;

then:

d) the corporation is liable to compensate the individual for the amount of the individual’s loss suffered as a result of the injuries; and

f) … “

182 For a plaintiff to succeed upon a claim based under this section, he must first show that the goods had a “defect”, as defined in S 75AC of the act. That section provides:

“75AC(1) [interpretation] For the purposes of this Part, goods have a defect if their safety is not such as persons generally are entitled to expect.

75AC(2) [Relevant circumstances] In determining the extent of the safety of goods regard is to be given to all relevant circumstances including:

a) the manner in which and the purposes for which they have been marketed; and

b) their packaging; and

c) the use of any mark in relation to them; and

d) any instructions for, or warnings with respect to, doing or refraining from doing, anything with or in relation to them;

e) what might reasonably be expected to be done with or in relation to them; and

f) the time when they were supplied by their manufacturer.”

183 A claim brought under S 75AD is however excluded in the circumstances specified in S 75AI of the Act, which is in the following terms:

“75AI Section 75AD, … does not apply to a loss in respect of which an amount has been, or could be, recovered under a law of the Commonwealth, a State or a Territory that:

a) relates to workers’ compensation; or

b) …”

184 Part VA of the Act, within which these provisions are included, was introduced by Act No 106 of 1992. The Explanatory memorandum for the Bill, pursuant to which it was introduced, provided:

“40. The new Part VA is being introduced as a consumer protection measure. Loss caused by work-related injuries has therefore been excluded, as it is considered that this field is comprehensively regulated under existing worker’s compensation regimes. Similarly, loss which is regulated by way of international agreement has also been excluded.”

185 It is here the case the plaintiff’s injuries were caused by a work related injury. It is also the fact that the plaintiff has already recovered some amounts under a law of a State which relates to worker’s compensation, from Yoogali or its insurers.

186 The question which arises is whether S 75A1 operates, where the plaintiff is entitled to independent recovery from his employer under a law relating to worker’s compensation, to bar all recovery under S 75AD; or operates to limit recovery to such sums of money that would otherwise be recoverable beyond any cap arising under the relevant workers compensation legislation; or operates to limit recovery in relation to those heads of loss for which recovery is not possible under the relevant workers compensation legislation.

187 The section is ambiguous, and it is accordingly appropriate to have regard to the explanatory memorandum, a reading of which inclines me to the view that a person in the position of the plaintiff, who has the protection of workers compensation legislation, cannot also bring a claim under the Trade Practice Act against a corporation where goods manufactured and supplied by it have a relevant defect, that leads to an injury to the plaintiff in the course of his work.

188 It was argued, however, by the plaintiff, that the present was not a case in which a loss “could be recovered” under workers compensation legislation, because of the operation of S 151E of the Workers Compensation Act which required the plaintiff to seek recovery under the Motor Accidents Act. However, recovery under that Act is confined to recovery for fault, whereas the plaintiff was also entitled to receive benefits, without proof of fault under the Workers Compensation Act, and has in fact received such benefits.

189 In my view, that is an answer to the plaintiff’s submission. It follows that the S 75AD claim against Moxham must fail.

CLAIMS FOR CONTRIBUTION OR INDEMNITY

190 The final determination of the cross claims was stood over for separate consideration, once the issues of primary liability were determined, in particular to allow the parties to consider if necessary the various amendments that were made during the proceedings, or shortly before the matter came on for hearing, raising additional claims in contract. Having regard to the findings which I have made in relation to the absence of liability so far as Fallright and SSE are concerned, the need for any further determination of those questions now appears to be academic.

191 So far as I can see, there is, accordingly, no impediment in the way of dealing with the remaining cross claims of Yoogali, Moxham and Kuba, at least so far as they arise under S5 of the Law Reform (Miscellaneous Provisions) Act 1946.

192 Upon that basis, although subject to further consideration, if I am incorrect in that assumption, I shall proceed to announce my findings in relation to those cross claims.

193 The relevant principles in this regard are well known, and do not require restatement other than to note that they are as laid down by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492. In essence, consideration needs to be given to the relative culpability of each defendant, and to the causal potency of their negligence.

194 In dealing with this issue it is fundamental to note that the primary cause of the plaintiff’s fall was the failure of the cherry picker, an event for which Yoogali alone was responsible. The responsibility of Kuba and Moxham for the failure of the safety equipment to arrest that fall was only a secondary cause of his injuries. Without the failure of the cherry picker, there would have been no fall and no injury to the plaintiff.

195 It must follow, in my view, that the primary and most significant cause of the plaintiff’s accident and consequent injuries, was the negligence of Yoogali in connection with the absence of proper maintenance of the cherry picker, and not providing safe equipment or a safe place of work. The responsibility of Kuba and Moham was secondary to that of Yoogali.

196 I do not, however, consider Yoogali to have been in any better position than the plaintiff was, in having an appreciation of the relevant risks or the need for safeguards in the use of the fall arrest device.

197 It had no particular expertise in relation to the wearing or use of safety harnesses, and in the circumstances outlined above, it had received no indication as to any particular need for training its staff in relation to the kind of problem which emerged on this occasion, let alone any caution as to the risks of imperfect attachment, and of the available safeguards or procedures to be followed to avoid such matters, nor had it been invited by Kuba to have its workers trained in the use of the harness and associated equipment which that party supplied to it. Had the position in these respects been otherwise and had Yoogali then ignored those matters, its culpability and the causal potency of its negligence, would have been substantially increased, both by reason of the absence of training and of supervision.

198 So far as Moxham and Kuba are concerned, I find their responsibility to be equivalent since each claimed expertise, each was involved in the supply of the equipment, and each had an opportunity and occasion to provide proper instruction and advice in relation to the use of the product, in the form either of an indelible marking (in the case of Moxham) or a pamphlet or instructional manual (in the case of Kuba).

199 Taking these matters into account, I assess the relative percentage responsibilities for the purposes of the Act, as follows:

Yoogali 70%

Moxham 15%

Kuba 15%

MOTOR ACCIDENTS ACT CAP IN RELATION TO CROSS CLAIMS AGAINST YOOGALI

200 Subject to any need for further consideration of the cross claims I turn, finally, to deal with the issue of law that concerns the way in which an apportionment is to be worked out in a case where the liability of Yoogali is capped by Statute at $5m, yet that of the other defendants is uncapped.

201 Yoogali’s liability arises under Part 6 of the Motor Accident Act 1988. Had the plaintiff’s accident not been a motor accident within the meaning of that Act, then his damages would have been awarded under the Workers Compensation Act 1987.

202 Section 151E(2) of that Act provides that Division 3 of Part 5 does not apply to an award of damages to which Part 6 of the Motor Accidents Act applies. That Division does not however include S 151Z, which is found in Division 5 of Part 5 of the Act.

203 Section 151Z(2) is in the following terms:

“(2) If, in respect of an injury to a worker for which compensation is payable under this Act:

a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker’s employer; and

b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,

the following provisions have effect:

c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable;

d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages”.

204 The question which then arises is whether, notwithstanding the fact that the plaintiff’s damages were awarded under the Motor Accidents Act, S 151Z (2) of the Workers Compensation Act still has work to do. Although the matter is not free from doubt, it is my view that, not having been specifically excluded by S 151E(2), it does apply to the present case. Assuming that to be correct, it would require the percentage of the employer’s share for the responsibility for the injury to be applied, not to the full amount of the damages against the third party ($6.2m) but to the damages assessed in accordance with the formula provided under the Motor Accidents Act ($5m).

205 This accords with the purpose of S 151Z(d) identified in Grljak v Trivan Pty Ltd (1994) 35 NSWLR 82, which was one of preventing a worker from recovering more directly from his or her employer, than could have been recovered had the employer alone been responsible, yet without increasing the net burden on the other tortfeasors.

206 It follows, in my view, that any apportionment calculation should be based on the uncapped liability of the non Yoogali defendants ($6.2m) with Yoogali’s maximum exposure to all parties being limited to its capped liability ($5m). The decisions in Unsworth v Commissioner of Railways (1958) 101 CLR 73; and Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199 at 201 and 202, tend to support this conclusion so far as they decide that contribution cannot be recovered against a tortfeasor with a limited liability for damages to a plaintiff, in excess of that which the tortfeasor is liable to pay to the plaintiff.

CONCLUSION

207 The plaintiff is accordingly entitled to a verdict and judgment against Yoogali for $5m, and against Kuba and Moxham for $6.2m. I will reserve the making of final orders in respect of the plaintiff’s claims against Kuba and Moxham, and in respect of the cross claims, in case the parties wish to pursue further submissions in that regard. All questions of costs, including those of SSE and Fallright, will be similarly reserved.

208 I publish these reasons for the consideration of the parties. The proceedings will be relisted for further hearing in relation to any reserved issues upon a date to be fixed.

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Last Modified: 12/19/2001

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Citations

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15

Doble Express Transport Pty Ltd (Administrator Appointed) v John L Pierce Pty Ltd [2016] NSWCA 352

Baden Cranes Pty Ltd v Smith [2013] NSWCA 136

J & V Pesl v Ray Smith Tractors & Anor [2007] NSWCA 74

Cases Cited

18

Statutory Material Cited

0

Luxton v Vines [1952] HCA 19

Vairy v Wyong Shire Council [2005] HCA 62

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

CITATION:	LANZA v CODEMO [2001] NSWSC 845
FILE NUMBER(S):	SC 20818/97
HEARING DATE(S):
JUDGMENT DATE:	28 September 2001
PARTIES :	Guiseppe Lanza Codemo Management Pty Ltd t/a Yoogali Engineering Co and Ors
JUDGMENT OF:	Wood CJatCL at 1

COUNSEL :	P: L Morris QC with D Conti D1 and D2 C Hoeben SC 3D discontinued 4D P Greenwood SC with G.D. McNally 5D ADM Hewitt SC with J. Sleight 6D I Wales SC 3-4 xd [SSE] M. McCulloch
SOLICITORS:	Freehills 5D: Morag & agnew 6D: McCabes
CATCHWORDS:	TORT – Personal Injury – Costs – whether Bullock or Sanderson order should be made – costs between contributing defendants – whether costs incurred by plaintiff reasonable as between plaintiff and unsuccessful defendant – where claims against defendants were independent and alternative
DECISION:	See separate minutes of order