Rivett Arboricultural & Waste Equipment Hire Pty Ltd v Conor Patrick Evans - [2007] SASC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
RIVETT ARBORICULTURAL & WASTE EQUIPMENT HIRE PTY LTD & ORS v CONOR PATRICK EVANS & ORS
[2007] SASC 108
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
29 March 2007
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
EMPLOYMENT LAW - RIGHTS AND LIABILITIES AS BETWEEN EMPLOYER AND THIRD PERSONS - LIABILITIES OF EMPLOYER - FOR TORTS OF EMPLOYEE - FOR WHAT ACTS LIABLE -- COURSE OF EMPLOYMENT AND SCOPE OF AUTHORITY
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES
TRADE AND COMMERCE - TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION - CONSUMER PROTECTION
Appeal against findings of liability - the first respondent (Conor) was injured whilst using a wood chipper that was manufactured by the first appellant (Rivett), retailed by the second appellant (Arbor) and owned by the third respondent and cross-appellant (WMC) – the second respondent (Christopher) suffered psychological injury as a result of witnessing Conor's injury - Conor worked for a voluntary organisation that had use of the wood chipper on WMC’s premises – trial Judge found that Rivett, Arbor and WMC breached duties of care owed to Conor and Christopher - the Judge apportioned responsibility - 70% against Rivett and Arbor and 30% against WMC – Rivett, Arbor and WMC appealed on the grounds that they were not liable that Conor was contributorily negligent and that the Judge erred in apportioning liability – Rivett and Arbor further appealed on the ground that the Judge erred in rejecting the claim against the fourth respondent (Mr Zwar)– duty of care and scope of duty of WMC, Rivett and Arbor – whether WMC was vicariously liable for the actions of Mr Zwar – contributory negligence – apportionment - consideration of Trade Practices Act 1974 (Cth) – Held: Appeal and cross-appeal dismissed.
Trades Practices Act 1974 (Cth) s 52, s 53(aa), s 53(c) and s 75AD; Occupational Health Safety and Welfare Act 1986 (SA) s 19, s 23 and s 24A; Wrongs Act 1936 (SA) s 17C; Civil Liability Act 1936 (SA) s 20, referred to.
Fox v Percy (2003) 214 CLR 118; James v Williams (2003) 228 LSJS 232; Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors [2005] SADC 172; Graham Barclay Oysters P/L v Ryan (2002) 211 CLR 540; Perre v Apand Pty Ltd (1999) 198 CLR 180; Pyrenees Shire Council v Day (1998) 192 CLR 330; New South Wales v Lepore (2003) 212 CLR 511; Fitzgerald v Penn (1954) 91 CLR 268; March v E & MH Stramare Pty Ltd (1990) 171 CLR 506; Bennett v Minister of Community Welfare (1992) 176 CLR 408; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Chappel v Hart (1998) 195 CLR 232; Betts v Whittingslowe (1946) 71 CLR 637; Donoghue v Stevenson [1932] AC 562; Suosaari v Steinhardt [1989] 2 Qd R 477; Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313; Proctor & Gamble Pty Ltd v Australian Slatwall Industries Pty Ltd [2001] NSWSC 398; Slatwall Industries Pty Ltd [2001] NSWSC 398; Wyong Shire Council v Shirt (1980) 146 CLR 40; Wilkins v Dovuro (1999) 169 ALR 276; Griffiths v Arch Engineering Co Ltd [1968] 3 All ER 217; Winward v T.V.R Engineering [1986] BTLC 366 CA; Laundess v Laundess (1994) Aust Torts Reports 81-316 (61,870); McPherson’s Ltd v Eaton & Others (2005) 65 NSWLR 187; Imperial Furniture Pty Ltd v Automatic Fire Sprinklers Pty Ltd [1967] 1 NSWR 29; Clarke v Army and Navy Co-operative Society Ltd [1903] 1 KB 155; Watson v Buckley, Osborne Garrett & Co Ltd and Wyrovoys Products Ltd [1940] 1 All ER 174; Cuckow v Polyester Reinforced Products Pty Ltd (1970) 19 FLR 122; CSR Ltd v Wren (1998) 15 NSWCCR 650; Andrews v Hopkinson [1957] 1 QB 229; Fisher v Harrods Ltd [1966] 1 Lloyd’s Rep 500; Thompson v Johnson and Johnson Pty Ltd [1991] 2 VR 449; Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307; Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359; Lanza v Codemo Management Pty Ltd [2001] NSWSC 845; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Darwin Bakery v Sully (1981) 51 FLR 90; Van Den Heuvel v Tucker (2003) 85 SASR 512, considered.

RIVETT ARBORICULTURAL & WASTE EQUIPMENT HIRE PTY LTD & ORS v CONOR PATRICK EVANS & ORS
[2007] SASC 108
Full Court: Doyle CJ, Duggan and Gray JJ

DOYLE CJ. I would dismiss each of the appeals before the Court. I agree with the reasons given by Gray J, subject to one matter.
The trial Judge found that the injury to the plaintiff occurred when the glove that the plaintiff was wearing became caught on foliage being fed into the wood chipper. As Gray J says, it is probable that the plaintiff was operating the machine in an unsafe way. It is probable that he was standing so that his head and shoulders were below the control bar that operated as a safety device. Standing in that manner, he was able to be drawn into the wood chipper without his body striking the control bar. On the basis of these findings, the fact that the infeed chute was not at least 1,400 millimetres long played a part in the occurrence of the injury, because that meant that the plaintiff had less time to react to the situation and it meant that his hand reached the roller sooner than it would have. It follows that a lack of proper training and the design of the wood chipper were together causes of the plaintiff’s injury.
On that basis, it is established that the breaches of duty found by the trial Judge, and supported by Gray J, on the part of WMC (Olympic Dam Corporation) Pty Ltd, on the part of Rivett Arboricultural & Waste Equipment Hire Pty Ltd In Liquidation and on the part of Arbor Products International (Aust) Pty Ld In Liquidation together caused the plaintiff’s injuries. That is a conclusion to be reached as a matter of fact and as a matter of law, and so causation is made out. This probably seemed self-evident to the trial Judge.
Accordingly, it is not necessary to consider whether causation is established on the wider basis considered by Gray J, and in particular on the basis that it suffices to find that the injury occurred within an area of foreseeable risk. Causation is established, in my opinion, on the basis of what might be called ordinary principles of causation. In Van Den Heuvel v Tucker [2003] SASC 110; (2003) 85 SASR 512 in a joint judgment Duggan J and I said at [97]:
… as things stand High Court authority is contrary to the proposition, at least as a general rule, that proof of an injury occurring within an area of foreseeable risk is proof of causation, unless the defendant is able to prove that the breach had no effect.
I adhere to that view. In the circumstances, because it is not necessary to base my decision in the present case on anything other than accepted principles of causation, I am content to leave the matter there.
I would hear the parties as to the question of costs and on any incidental matters.
DUGGAN J. I would dismiss the appeals.
I agree with the reasons of Gray J subject to the matter raised by the Chief Justice. In Van den Heuvel v Tucker[1] the Chief Justice and I did not accept as a general proposition that causation would be established upon proof of an injury occurring within an area of foreseeable risk unless the defendant could prove that the breach had no effect. However, Gray J is of the view that this proposition of law provides an alternative basis for causation in the present case.
[1] [2003] SASC 110; (2003) 85 SASR 512.
I adhere to the view expressed in the joint judgment in Van den Heuvel v Tucker. However, I agree that causation in the present case is established in accordance with accepted principle.
GRAY J:
Introduction
This appeal concerns the legal responsibility for injuries incurred in the course of voluntary labour. The plaintiffs, both young adolescents, were engaged with their family in a community fundraising and environmental activity that benefited a public company. An obviously dangerous machine was being used. In issue is the legal responsibility of the manufacturer and the supplier of the machine, as well as that of the public company.
On 28 April 2000, Conor Patrick Evans (“Conor”), a plaintiff and respondent, then aged 17 years, was operating a Rivett wood chipping machine (the “wood chipper”).[2] His right arm was drawn into the wood chipper, and he suffered a traumatic amputation of his right hand above the wrist and associated soft tissue injuries to his arm and shoulder.
[2] The description “wood chipper” is used in these reasons to refer to the machine Conor was using when injured. Other wood chippers are differently described.
Conor’s younger brother, Christopher Michael Evans, (“Christopher”) also a plaintiff and respondent, was present at the time of the incident. Christopher heard his brother scream and turned to see him holding his badly injured right arm. Christopher suffered psychological injury.
The wood chipper was manufactured by Rivett Arboricultural and Waste Equipment Hire Pty Ltd (“Rivett”), a defendant and appellant, and supplied by Arbor Products International (Aust) Pty Ltd (“Arbor”), also a defendant and appellant. Nicholas Rivett was a director of both Rivett and Arbor. The wood chipper was sold to WMC (Olympic Dam Corporation) Pty Ltd (“WMC”), another defendant, respondent and cross appellant.
The wood chipper was made available by WMC to a group of volunteers called the Green Machine. The wood chipper was kept on WMC’s premises and maintained and serviced by WMC. Conor and Christopher volunteered with Green Machine. It was in that capacity that they suffered their injuries.
Conor and Christopher claimed damages against Rivett, as manufacturer, Arbor, as retailer and supplier and WMC, as owner and provider of the wood chipper, occupier of the premises where the injury occurred, and an entity for whose commercial benefit the wood chipper was being operated.
The plaintiffs’ claims at trial may be summarised as follows:
-against Rivett, in negligence at common law as manufacturer, and for breaches of sections 52 and 75AD of the Trade Practices Act 1974 (Cth);
-against Arbor, in negligence at common law as supplier, and for breaches of sections 52, 53(aa) and 53(c) of the Trade Practices Act;
-against WMC, in negligence at common law, for breaches of sections 19, 23 and 24A of the Occupational Health Safety and Welfare Act 1986 (SA), and for breach of section 17C of the Wrongs Act 1936 (SA).[3]
[3] Now section 20 of the Civil Liability Act 1936 (SA).
Rivett and Arbor claimed contribution and indemnity from WMC. Rivett and Arbor also sought contribution and indemnity from Green Machine personnel John Zwar and Patricia and Michael Evans, the plaintiff’s parents, on the basis that they were the plaintiff’s supervisors at the time of the injury.
WMC claimed contribution and indemnity against Rivett and Arbor.
Rivett, Arbor and WMC also claimed that Conor had been guilty of contributory negligence.
Following a hearing in the District Court, on 23 December 2005 the trial Judge found that Rivett, Arbor and WMC had breached duties of care to both Conor and Christopher. Conor’s damages were assessed at $1,084,451.53 and judgment was entered in that amount. Judgment was entered for Christopher in the amount of $20,000. No reduction was made for contributory negligence. The Judge apportioned responsibility - 70% against Rivett and Arbor and 30% against WMC. The claims against Mr Zwar and Conor’s parents were dismissed.
Issues on Appeal
Rivett and Arbor challenge the Judge’s conclusions that they were liable for damages. In the alternative, they dispute the Judge’s apportionment. Rivett and Arbor further complain that the Judge was in error in rejecting the claim against Mr Zwar and in finding that Conor was not guilty of contributory negligence.
WMC challenges the Judge’s conclusion that it was liable for damages to the plaintiffs and, in the alternative, disputes the Judge’s conclusions on apportionment. WMC also complains about the finding that Conor was not contributorily negligent.
In Fox v Percy,[4] Gleeson CJ, Gummow and Kirby JJ summarised the approach to be taken by intermediate appellate courts:[5]
The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. …
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
…
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”.
The foregoing principles govern this appeal.[6]
[4] Fox v Percy (2003) 214 CLR 118.
[5] Fox v Percy (2003) 214 CLR 118 at [22] – [23], [25] (footnotes omitted)
[6] James v Williams (2003) 228 LSJS 232 at [26]-[27].
Background
Before coming to address the issues on appeal it is necessary to consider the background to the incident leading to the plaintiffs injuries.
The Incident
On Saturday 28 April 2000, Conor was working at the Green Machine yard on premises owned and occupied by WMC, in Roxby Downs, South Australia. At the time, Conor had worked as a volunteer with the Green Machine for 2 to 3 years. Throughout the afternoon, Conor dragged foliage towards the wood chipper, fed foliage into the wood chipper, loaded the chipped material onto the trailers of customers and generally cleaned up.
The Judge described the incident as follows:[7]
[7] Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors [2005] SADC 172 at [14]-[16].
Conor said that around 5:00 pm, it was towards the end of the day, he still had some further vegetation to be mulched. The material was at ground level and he was behind and to the right of the machine facing the infeed chute. He described what happened as follows:
Around the time of the accident the mulch pile was starting to get quite low, it was almost time to knock off, but there was still a fair bit of – it was mainly smaller stuff. I think, from memory, it was probably wattle, or something along that line, just small bushy and very leafy, and it was, like I said, towards the end of the day, so things were getting a lot smaller, the job seemed a lot easier.
Conor said that he had been bending down to ground level to collect the material. He was unable to recall clearly, but thought that he was to the right of the infeed chute with his knee within the vicinity of the knee bar. He went on:
A.I remember dragging materials up. It was just like any other time of the day, just hard work, dragging the materials up to the machine. I noticed mum and dad were both off to the side of the machine, they were preparing – turning around and stacking things so it was a bit easier to feed through the machine. I jumped off a pile of branches and started feeding them through the machine. I don’t have a memory at all of how I got caught at all – I just remember hanging on – I’m pretty sure I was to the top of the feed chute. I just remember hanging on.
Q. With what. What were you hanging on with?
A.Sorry, my left hand. I just remember hanging on and threw my leg up. I don’t think I even thought about it. I think I just did it and managed to hit the reverse bar, which put the roller in reverse. I just instantly started to feel relieved. I slid out of the machine. I was more being pushed, really, and I slid out onto the ground just in front of the feed chute. I remember looking at where my hand was. …
It was quickly apparent to all present that Conor had lost the lower part of his right arm.
…
On 29 April 2000, the following day, Conor noticed a small lump above his right ear which was tender. He said that the lump was two to three centimetres long, five to seven millimetres wide and about five millimetres high. He also noticed a series of lacerations/ abrasions across his arm at approximately three to four centimetre intervals which, he surmised, were caused by the teeth of the infeed roller. He also had a large laceration/ abrasion on his right shoulder blade.
Conor had no memory of how he became caught in the wood chipper. At trial, counsel for the defendants advanced a number of alternative possibilities. The first was that Conor reached into the infeed chute of the machine to push material further into the chute or to clear a blockage and subsequently became trapped by the infeed roller. Alternatively, it was said that Conor may have climbed into the wood chipper for that same purpose. The third possibility advanced was that Conor, while not standing upright and with his head and shoulders below the level of a control bar, became snagged by material being fed into the wood chipper with the consequence that he was dragged forward into the roller. The final possibility suggested by counsel was that Conor slipped and fell while feeding material into the wood chipper.
At the hearing of the appeal, counsel for WMC submitted that there was a further possibility. It was said that it was also possible Conor became snagged by material being fed into the wood chipper while he was standing upright and in a correct position.
Although Conor had no recollection of how he became entrapped, he emphatically denied having put his head and shoulders into the wood chipper or having climbed into the infeed chute.
The trial Judge made the following finding as to the manner in which Conor became trapped by the infeed roller of the wood chipper:[8]
[T]he only credible explanation for what happened was that Conor’s glove became snagged in a fork or a protruding piece of foliage and his hand was drawn into the machine. Having regard to Mr Simpson’s evidence about reaction times, which I will discuss in detail later, I find it very unlikely that Conor’s hand was close to the infeed roller at the time he was snagged. On the basis of his evidence that the infeed roller was operating at 600mm per second, and that Conor would have taken between 1½ and 2 seconds to take any effective action to save himself, it is more likely that his hand was a metre or so back from the infeed roller when it became snagged, otherwise he would have had no time to take the actions he did which probably saved his life.
On appeal, counsel for WMC complained that the Judge erred in making this finding. It was counsel’s submission that it was not open on the evidence for the Judge to make a finding as to how the incident occurred.
[8] Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors [2005] SADC 172 at [22].

The Judge accepted Conor as a credible and reliable witness. This conclusion was not challenged on appeal. Conor denied having climbed into the wood chipper or having reached into the wood chipper to push material further in or to clear a blockage. The conclusion reached by the Judge accords with the most likely scenario. The inferences drawn are logical and credible. Connor was able to hit the control bar and stop the wood chipper from dragging him further into the cutting blades. The findings of the Judge as to how the incident occurred were open on the evidence. The challenge to this finding should be rejected.
WMC and “the Green Machine”
In 1989, John Zwar was employed by WMC as a horticulturist. In or about 1995, his position changed to include more general and environmental duties. About two years later, Mr Zwar was appointed the Senior Environmental Scientist responsible for community and amenity affairs at WMC. Mr Evans, the plaintiffs’ father, was also employed at WMC.
In 1993, the Evans approached Mr Zwar with respect to a Rivett “Eager Beaver” wood-chipping machine that was standing idle and unused at WMC’s Environmental Services depot in Roxby Downs. The Eager Beaver was owned by WMC. It was suggested that the Eager Beaver could be used to convert green waste to mulch and that this would then be sold to raise funds to assist the Royal Flying Doctor Service.
Mr Zwar and Mr and Mrs Evans, along with other volunteers, subsequently formed the Green Machine. WMC approved the Green Machine’s use of the Eager Beaver at WMC’s Environmental Services depot and overhauled and serviced the Eager Beaver at WMC’s expense. The wood chipper, the subject of the incident involving Conor, later replaced the Eager Beaver.
A technical assistant in the environmental section at WMC, was responsible for checking the Eager Beaver and then the wood chipper on a regular basis. This would usually occur on a weekly basis and involved checking the blades, providing fuel, greasing and minor servicing. The machines were serviced regularly at the expense of WMC and when operated by Green Machine were on WMC’s premises.
WMC supplied the Green Machine with safety goggles, ear mufflers, gloves and overalls. WMC also permitted employees from its environment section to use the Eager Beaver and its replacement, the wood chipper, and to assist the mulching project. Most, if not all, male adults who used the Eager Beaver and the wood chipper were employees of WMC.
The Green Machine used the Eager Beaver and then the wood chipper at least once a week until the incident the subject of this appeal. The mulch was generally sold to the public from WMC’s depot on Saturdays. The public were notified by a sign on the gate of the depot and through publicity of the Green Machine’s activities in the local press. From 1993 to the date of the incident, the Green Machine raised approximately $30,000. The sign was paid for and placed on the gate to WMC’s depot by WMC. The activity was held out to the community as being a WMC community sponsored project.
WMC accepted that it derived commercial benefit from the Green Machine’s operations. The Green Machine mulching project was considered part of WMC’s water conservation strategy and was further promoted to enhance WMC’s image as an environmentally conscious entity. WMC published its involvement in the mulching project through a number of reports and articles.
Mr Zwar’s dual role
The unchallenged evidence established that Mr Zwar had a dual role with respect to his position at the Green Machine and his employment with WMC. Mr Zwar’s employment documentation with WMC disclosed that his involvement with the Green Machine formed part of his job description. On 30 June 1995, Mr Zwar’s “Position Description” included the following “accountabilities”:
Town liaisons Liaise with local council with respect to environmental disturbance and water conservation to maintain the high environmental standards outlined in the environmental impact statement.
Public liaisons Liaison and advisory activities with local community in projects as defined by the corporation to maintain a good working partnership.
…
K.P.I’s [Key Performance Indicators]
Level of community interaction
Level of non planned environmental disturbance in community.
In September 1999, Mr Zwar listed his employment duties in a memorandum to WMC:
I consider my position adds value to the operation by undertaking the following duties which help present the operations and local community in a positive light, as environmentally aware, with good and continually improving environmental management procedures in place. My diverse range of duties includes the following:
…
Community Environmental Projects – Whilst I am very involved in each of the following groups/ projects as a volunteer in my own time, my involvement also relates to my area of employment and there is some overlap.
Community Mulching Project, (the Green Machine) co-instigator in 1993 & voluntary co-ordinator since then of this successful volunteer operated project converting green waste to garden mulch. Operates Friday afternoon & Saturdays, funds raised donated to RFDS [Royal Flying Doctor Service]. More than 2,000 cubic meters of mulch produced since 1993, which has reduced the volume of green waste going to landfill at the town dump.
Mr Zwar gave the following evidence with respect to his dual role as a coordinator of Green Machine and an employee of WMC:
Q.I gather from the evidence you have given to his Honour thus far that the machine was provided and serviced by WMC, is that correct, in the sense that it paid for it.
A.Yes. WMC owned the machine, provided it for this purpose, and paid for servicing, yes.
Q.And then provided the safety equipment.
A.Yes, they provided the safety equipment.
Q.And the use of the yard.
A.And the property where the machine was used was WMC Resources’ land.
Q.And the Green Machine was coordinated of volunteers, is that correct.
A.I was coordinator of the project. As coordinator this was something I did partly in work time and partly in my own time, and in later years involvement in that project was certainly formally part of my job description as light servicing was part of Steve Yianni’s job description.
Q.As far as working with the machine itself, that is mulching operations, you did that.
A.Yes; I was certainly involved fairly often in mulching.
Q.Why did you do that.
A.Well, I was involved as a member of the Tidy Town team, we were an active team. We were involved in a number of community environmental projects, as I mentioned earlier. It was a good thing to do. The advantage of the Green Machine project was that it meant people from the town could bring their green scrap timber, lawn cuttings, any green garden refuse, or scrap timber, wood, branches, old sleepers and drop them off there rather than taking them to the town dump. If they went to the town dump it would go into the landfill. So by using that project, which was on the edge of town and saved a few kilometres of travelling, it extended the life of the town dump which was very poorly managed and we didn’t want to make it any worse, because of the nature of the group and our interests, and the mulch, once it was produced, was sold back to the community and provided garden mulch, water conservation, the use of mulching was one of the many techniques that I provided. I also headed up WMC’s water conservation program for some years. So it was a multifaceted environmental project involving community members and sponsored by WMC Resources.
Q.You had, from what you told his Honour, a dual role; one with your position with WMC and another as a member of the Green Machine and Tidy Town team.
A.That is correct.
The Judge concluded:[9]
It is clear from the above that WMC strongly supported the Green Machine. It had a stated aim of presenting an image of environmental consciousness. It required Mr Zwar to establish and develop such community activities in furtherance of this objective. It allowed its employees to work at the Green Machine during working hours on some occasions. It supplied the wood chipping machine, it provided the premises at which it was located, it serviced the machine and supplied the spare parts. As things transpired, it purchased and supplied the new wood chipping machine and made it available to the Green Machine on the same basis.
This finding was not challenged and was fully supported by the evidence.
[9] Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors [2005] SADC 172 at [35].
During the course of the appeal the question arose as to whether there was any conduct of Mr Zwar that was not conduct for which WMC took responsibility. In the event, counsel for WMC did not identify any area of conduct by Mr Zwar that was not to be treated as conduct of WMC or not to be treated as conduct for which WMC was responsible. This was entirely appropriate having regard to the matters set out in the foregoing paragraphs. In this circumstance, counsel for Rivett and Arbor indicated that his clients did not seek to review the judgment in favour of Mr Zwar.
The Wood Chipper
The Eager Beaver first used by the Green Machine, was subject to frequent mechanical faults and breakdowns. In late 1998, WMC made enquiries of Arbor with respect to the purchase of a replacement machine.
On 11 December 1998, Arbor provided a quote for a replacement machine at a cost of more than $30,000. This machine was the wood chipper involved in the incident with Conor. The wood chipper had been manufactured in 1997. A Certified Training Program was offered with the wood chipper for a cost of $650.
On 11 January 1999, WMC purchased the wood chipper but declined to purchase the training program. WMC paid for the wood chipper from its Environment Section budget. WMC’s “Justification for Expenditure” provided:
We have the opportunity, utilising mainly volunteer labour to continue to produce mulch (used on site and in the community of Roxby Downs) from green waste…This has been done successfully for almost six years…This excellent environmental project has been recognised by a WMC Chairman’s Award in 1997 and by a number of KESAB awards in recent years.
…
The mulching project is an excellent example of recycling green waste with a proven track record locally. It has greatly reduced the volume of waste going to landfill and recycles valuable organic matter as mulch, an important component of our water conservation strategy.
The wood chipper operated in a similar way to the Eager Beaver. The essential differences between the two were that the wood chipper overall was slightly smaller, had a wider infeed chute, an extended infeed chute from 600mm to 900mm, one instead of two infeed rollers, a knee bar that when pressed lifted the roller to allow large branches to be fed into the wood chipper, and painted caution and prohibition areas. Overall it was considered to be an easier and safer machine to operate.
Description of the Wood Chipper
The wood chipper consisted of a single axle trailer chassis (“trailer”) with a jockey wheel at the front. The jockey wheel allowed the height of the trailer to be adjusted when in a stationary and unhooked position. The engine, motor and chipping components were in the middle of the trailer, the infeed chute at the rear and the discharge chute at the front.
Foliage was inserted through the infeed chute at the rear of the trailer. The infeed roller could be lifted hydraulically to enable large pieces of wood to be inserted under the roller. The infeed roller gripped the foliage and pushed it forward to the cutting disc. The rotating cutting disc had mounted sharp blades. The disc was set at an angle of 37.5 degrees toward the direction of incoming foliage. Foliage was cut into wood chips in a scissor-like action and the chips were then discharged from the front chute.
The opening of the infeed chute was rectangular in shape and measured 1230mm x 715mm. The infeed chute then tapered to 430mm x 320mm where the chute met the infeed roller. The infeed roller was cylindrical in shape, approximately 200mm in diameter and weighed 50 kilograms. The infeed roller had a number of evenly spaced teeth approximately 50mm apart. The teeth of the infeed roller grabbed the foliage and with the forward motion of the roller, propelled the foliage towards the cutting disc. Uncontested evidence at trial established that the infeed roller would draw foliage, or whatever else had been engaged in it, towards the cutting disc at a rate of 600mm per second.
The length of the infeed chute was 900mm. At trial it was determined that the total distance from the opening of the infeed chute to the roller was 850mm to the first pinch point, where the first tooth of the infeed roller would entrap material, and 890mm to the point where the second tooth of the infeed roller would take effect. A special infeed chute described as being “eg 1400mm to 1600mm” was offered as an optional extra by Arbor. This extended chute was not purchased by WMC. The importance of the extended chute will be addressed later in these reasons.
A U-shaped, tubular bar stood proud around the top and sides of the opening of the infeed chute. This was the forward reverse control bar (“control bar”). The control bar controlled the direction of the infeed roller. If the control bar was pulled back towards the operator, the infeed roller moved the foliage in a forward direction towards the cutting disc. If the control bar was pushed forwards, away from the operator, the direction of the infeed roller was reversed thereby pushing the foliage back into the infeed chute rather than towards the cutting disc.
Located behind the control bar was the “lift and crush control bar”. This bar activated the hydraulic system that raised and lowered the infeed roller. The lift and crush control bar was connected to another bar approximately 50mm below the bottom edge of the infeed chute and slightly proud of it. This bar was flatter in design than the tubular control bar and was operated by the operator’s knee (“knee bar”). The knee bar allowed the operator to activate the lift and crush mechanism by pressing a knee against the bar, thus leaving both hands free to insert material into the wood-chipper. As the knee bar was pushed, four large springs, two on either side of the infeed roller, moved hydraulically into tension so that when the knee bar was released the infeed roller was forced down by the gravity of its own weight and by the springs.
Inside the infeed chute was a painted black and yellow striped region (“caution stripes”) followed by a painted “red prohibition area”. The caution stripes extended 400mm into the tapered chute, with the remainder of the chute to the infeed roller, painted red. The caution stripes and the red region were added to the wood chipper in May 1997, after its manufacture.
As observed earlier, the jockey wheel adjusted the height of the trailer thereby altering the distance from the ground to the bottom of the infeed chute. Evidence established that the range of variation was between 570mm and 800mm. The wood chipper was designed for the chassis of the trailer to be set level. When the machine was operated in a level position the bottom of the chute would sit approximately 600mm from the ground. This height was significant as it determined the overall height of the infeed chute and surrounding control bars and consequently, where they were positioned in relation to an operator.
The height of the wood chipper on the day of the incident could not accurately be determined. No photographs were taken that day. The first measurements were gathered some months after the incident.
Training
Eager Beaver
The Eager Beaver was purchased by WMC in 1986. Mr Rivett gave evidence that he conducted training for approximately five WMC employees including two mechanics, at or around this time. It was his recollection that the training consisted of a demonstration including safety checks, preparing material for the Eager Beaver, its technology and various features and where and how to stand when operating the Eager Beaver. The mechanics were given extra training on how to service the Eager Beaver.
Mr Zwar gave evidence that it was his recollection that the contractors who overhauled the Eager Beaver informed him how to operate the machine. Mr Zwar did not receive formal training from WMC or from any employee who had received formal training.
Mr Zwar informed other members of the Green Machine how to use the Eager Beaver. It appears this included Mr and Mrs Evans. Mr Zwar pointed out the safety features and the warning signs on the machine:
If they were new to the project, had not been involved at all, before work started, before the machine was switched on, I would walk around the machine with them pointing out the safety features, the signs, the decals, I would also refer to the sign that I had made up and laminated and placed at the side of both the old and then subsequently the new machine. I had made a number of copies of that. These were kept in the shed and, as they deteriorated, they were replaced.
New operators sometimes didn’t actually see the machine, they just helped by pulling branches and green stuff in for whoever was feeding the machine. Quite often a new person would do that for quite some time until they became more familiar with the machine, how to use it, the safety bars and so on, the reversing and forward lever, and they generally wouldn’t use it until they were more familiar with it, sometimes after having volunteered for a number of weeks. Generally speaking, any younger people volunteering, people like Bradley Stratford and the Evans boys when they were younger didn’t actually feed the machine, that happened when they were older and more experienced.
The sign placed at the side of the Eager Beaver and inside the nearby shed read:
ATTENTION
SAFETY WARNING
Operators of this machine must observe safe working practices at all times
Never put hands or any part of the body into the mouth of the wood chipper when the machine is in operation.
Never open fly wheel cover to clear blockages or change blades unless motor is turned off and wheel has stopped moving.
Always ensure that any new operators or helpers are instructed in the safe operation of the wood chipper.
If these instructions are not heeded, severe injuries may result.
This would almost certainly mean the end of the highly successful mulching project.
Please observe these instructions whenever the machine is in use.
Your attention is drawn to the attached article.
Attached to the warning sign was a copy of an article concerning an incident that occurred while a person was operating a wood chipper in another State.
In summary there was no formal training offered by WMC to Mr Zwar or to the other members of the Green Machine. It appears that there was an informal process by which members trained other members. New members first observed how the existing members operated the Eager Beaver. Once they became more familiar with the machine and its safety features they could then begin to use it.
Conor was trained by his parents in the use of the Eager Beaver over a period of time. Consequently, Conor did not receive training from any person who had received the formal training offered by Rivett. Conor gave evidence that his mother gave him a manual to read. He browsed through the manual a couple of times and read certain parts of the manual with respect to safety.
Initially, Conor was only allowed to drag foliage to the Eager Beaver and to observe the adults operating it. Approximately six to eight months prior to WMC purchasing the wood chipper, he was shown by his parents how to use the control and lift bars of the Eager Beaver. With adult supervision, Conor began to operate the control bars and then proceeded to feed foliage into the Eager Beaver. Conor’s training therefore consisted of observing his parents and others, discussing the operation of the Eager Beaver with his parents, browsing through the manual and what he described as common sense. It is apparent that no properly trained operator trained Conor.
The Wood Chipper

WMC provided no formal training program to its employees or members of the Green Machine with respect to the wood chipper. It was considered that training was not necessary as the Green Machine had been using the Eager Beaver without incident. Furthermore, as earlier observed, the wood chipper was considered safer and easier to operate.
Mr Zwar was not present when the wood chipper was first used. However, it is clear from the evidence that the informal process of training continued with the wood chipper. Mr Zwar trained himself in the use of the wood chipper by reading the Operating and Training manual that had been supplied with the wood chipper.
Conor gave evidence that he underwent a similar training process as followed with the Eager Beaver when the wood chipper arrived. Initially, Conor went back to dragging foliage towards the wood chipper. Once the adult volunteers had learnt how to use the machine, Conor was taught how to use it in the same way he had been taught with the Eager Beaver. Mrs Evans taught Conor how to operate the knee bar and the reverse function on the control bar. Conor gave evidence that he also browsed through the Operating and Training manual but had no memory of reading a number of the significant safety warnings.
Christopher and Bradley Stratford, another young adolescent, gave similar evidence with respect to their training on the Eager Beaver and wood chipper. Both volunteered with the Green Machine at the relevant time. Christopher and Bradley learnt how to operate both machines by observing other adults. Bradley had no recollection of reading a manual for either wood chipper. Christopher gave evidence that he flicked through the manuals for both the Eager Beaver and the wood chipper, but did not have regard to the detail.
The Certified Training Program
As earlier observed, WMC did not to purchase the Certified Training Program offered by Rivett for the wood chipper. The program provided four hours of training for up to ten people for a cost of $650. During the course of correspondence between WMC and Rivett, Rivett informed WMC:
We offer a Certified Training Program for Operators and Maintenance staff. This program is available for up to 10 participants per fee and can be run at any time upon request. Trained staff are issued with an Operators Training Manual and a Certificate which is valid for 3 years. Under the Australian Standards and Health and Safety Regulations, as manufacturers we are required to offer this Training Program, however, it may be declined.
With respect to WMC’s decision to not purchase the training program, Mr Rivett stated:
I can remember it being discussed. I think the nub of the situation at the end of the day was that ‘We bought a second-hand machine because we don’t have money to buy a new one. We have operated the previous machine for umpteen years, we don’t really need you, thank you very much’.
Mr Rivett gave evidence that the training program offered with the wood chipper would have been similar to the training provided to the five employees of WMC in 1986. Mr Rivett stated that the training program, in conjunction with the Operating and Training manual, with which each trainee was provided, would have informed operators of the following precautions:
-material should be fed into the machine from its right side;
-the operator should stand upright when operating the machine;
-the machine should never be operated alone;
-the operator should never use their foot to control the knee bar;
-the operator should not allow foliage to pass through their hand once the infeed roller has gripped the foliage; otherwise there is a risk of being snagged;
-the control bars are safety features in an emergency. The operator should stay close enough to the bars to enable them to be activated in an emergency;
-the operator should not let their head and shoulders pass below the level of the control bar;
-an operator’s hand is permitted inside the infeed chute but only in the caution striped region and while the operator is standing upright;
-an operator’s head and shoulders should never be put into the infeed chute.
Deficiencies in Training
It is clear from the evidence that the operators of the wood chipper were aware of some safety aspects when operating the machine. However, their ability to operate the machine safely and minimise risk was materially inadequate when regard is had to their overall knowledge and the practice followed in operating the wood chipper.
The operators of the wood chipper, including Conor, were not aware of the critical importance of ensuring that the operator stood upright so that the operator’s head and shoulders did not pass below the level of the control bar. Operators did not know that they should stand and feed foliage into the wood chipper from the right hand side of the machine.
Operators would at times allow foliage to run through their hands after it had been gripped by the infeed roller and was being pulled toward the cutting disc. Operators were not aware that the control and knee bar were a safety feature that could be used in an emergency. Nor were they aware that an operator should never use a foot to operate the knee bar on the wood chipper; such use caused instability.
Operators considered the caution stripes as a hazard warning, but they still considered it acceptable to allow their hands to enter the infeed chute to a distance of between 50mm to 200mm.
Although Mr Zwar gave evidence that the wood chipper was usually set up so that the trailer was level, operators were not informed that the bottom of the infeed chute should not be more than 600mm above the ground.
Mr Zwar had no recollection of informing operators of important safety instructions. Mr Zwar gave evidence that if he had observed the wood chipper being used as described in the preceding paragraphs, he would not have been critical of the operator and would not have intervened in its operation. He would often operate the wood chipper in a similar manner. This is not surprising since Mr Zwar had not received the formal training offered by Rivett.
Mr Zwar was also aware that Conor, Christopher and other adolescents were using the wood chipper without formal training and without thoroughly reading the Operating and Training Manual:
A.I don’t think very many of our people did read the manual. They learned the use of the machine initially by looking at the various things, safety warnings and so on, signage on it, and observing the operation of the machine by other experienced operators before they used it themselves.
Q.So is this the position: you didn’t believe it was essential for [Bradley Stratford] and these other operators to read the manual provided they copied what experienced operators were doing.
A.I think in hindsight I would obviously do it differently, but the fact is that not many of our operators would have read the entire manual. Some of them wouldn’t have read any of it. But it was available for any of them.
A video prepared some months after the incident with Conor was tendered at trial for the purpose of demonstrating how the wood chipper was operated. The content of the video was not challenged. With respect to the conduct displayed the Judge concluded:
[I]t is notable in the video that Mr Evans was not displaying any of the benefits that he might have received from Mr Rivett’s training. He was feeding the material in without standing upright at the face of the infeed chute, his head and shoulders were below the level of the forward/ reverse control bar on occasions, he was allowing material to pass through his hands after it engaged in the feed roller, while at the same time looking away for the next piece of material to insert, and he was using his foot instead of his knee to operate the knee bar.
Conor, Christopher, Bradley and Mr Zwar all gave evidence that the way in which Mr Evans operated the wood chipper, as shown on the video, was the way it was generally operated by themselves and by other members of the Green Machine. It is clear from the video that Mr Evans did not operate the wood chipper in accordance with the training that was offered by Rivett or with the Operator and Training Manual.
An Obvious Danger
The wood chipper was dangerous and obviously so. As the Judge concluded:[10]
The wood chipping machine in question was dangerous. In the event that the operator became entrapped in the infeed roller, whether by snagging or directly, the chances of serious injury or even death were high. The infeed roller operated at fast speed and would draw whatever had been engaged in it towards the chipper blades of the machine at the rate of 600mm per second.
On the hearing of the appeal, all parties accepted the finding that the wood chipper was dangerous and obviously so. This was appropriate. The wood chipper was an inherently dangerous machine. It was not possible to guard the moving parts, including the cutting blade, without materially interfering with the function of and operation of the machine. The risk that a person’s body might be drawn into the machine through snagging, a slip or inadvertence was self-evident.
[10] Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors [2005] SADC 172 at [153].
The key to protection was to place the greatest distance practicable between the operator and the blades, and to provide proper instructions and supervision and an effective means to readily stop the machine in an emergency. The use of stop mechanisms had the limitation of whether they could be engaged in an emergency.
WMC
Duty of Care
In written submissions, counsel for WMC contended that the trial Judge erred in concluding that WMC owed a duty of care to Conor and Christopher.
In determining whether a duty is owed the salient features of a relationship must be considered. The multi-faceted enquiry, following recent High Court authority,[11] calls for an analysis of all relevant circumstances including the position occupied by the parties against the background of the facts, their proximity or neighbourhood, the foreseeability of the risk of injury, the degree and nature of control exercised by a defendant over the risk of harm that eventuated and the degree of vulnerability of those who depended on the proper exercise of relevant powers.
[11] Graham Barclay Oysters P/L v Ryan (2002) 211 CLR 540; Perre v Apand Pty Ltd (1999) 198 CLR 180; Pyrenees Shire Council v Day (1998) 192 CLR 330.
The Salient Features
Foreseeability
The risk to the operators of the wood chipper, was reasonably foreseeable. As previously observed, WMC knew that the wood chipper was inherently dangerous due to the combination of the large opening of the infeed chute and the close proximity of the operator to the infeed roller. The environment in which the wood chipper was operated allowed piles of foliage to be in close proximity to the wood chipper. This increased the risk of an operator tripping or falling and subsequently becoming entrapped by the wood chipper. Furthermore, the nature of the foliage itself and the manner in which it would thrash about once gripped by the infeed roller, presented a significant risk of an operator’s glove becoming snagged by the branches and twigs.
It was reasonably foreseeable that if an operator did not adhere to all safety precautions when operating the wood chipper, there was a real risk that an operator’s body could enter the infeed chute. This could occur as a result of the operator becoming snagged by foliage being fed into the machine, tripping and falling into the chute or through mere inadvertence. Due to the length of the infeed chute, it was reasonably foreseeable that the infeed roller, within a matter of seconds, would entrap the operator. It was reasonably foreseeable that due to the design and purpose of the wood chipper, once the infeed roller entrapped the operator, serious injury or death could result.
It was reasonably foreseeable that without adequate and formal training an operator would not be aware of all of the safety precautions that should be observed to minimise risk. Nor would the operator be aware of the critical importance of adhering to each and every safety precaution. Furthermore, due to WMC’s control of the wood chipper on their premises, it was also foreseeable that if WMC did not provide training to the Green Machine, they would otherwise be unlikely to receive adequate training in the safe operation of the wood chipper.
Vulnerability
The presence of vulnerability, in that Conor and Christopher were vulnerable to harm in the absence of WMC taking steps to avoid that harm, needs to be addressed when considering the imposition of a duty of care.
WMC, through Mr Zwar, were aware that adults who had not received formal training were teaching adolescents how to operate a highly dangerous piece of equipment that was owned by them and operated on their premises.
At relevant times, Conor and Christopher were adolescents; vulnerable because of their age and inexperience in using the wood chipper. They lacked formal training and the maturity to cope with emergencies that could arise.
Dependence
Conor and Christopher were in a position of dependence upon WMC to be formally trained in the safe operation of the wood chipper. WMC were in a primary position to provide that training. Conor and Christopher further relied upon WMC providing a wood chipper that was reasonably safe to operate and one that met the Australian safety standards.
Control
WMC were in a position where they could control, at least to a material degree, the risk of harm to Conor and Christopher. WMC were in a position to take steps to remove, reduce or minimise that risk.
WMC had the power to exercise exclusive control over the wood chipper and the premises where the Green Machine operation was situated. The wood chipper was supplied to the Green Machine at the expense of WMC. WMC undertook all responsibility for the servicing and repairs of the wood chipper. WMC made it clear to the members of the Green Machine that the wood chipper was owned and controlled by WMC.
It follows from WMC’s control of the wood chipper that WMC could have also controlled how it was set up to ensure that it was at all times operated at the height required for safe operation.
The Certified Training Program was only offered to WMC. It was WMC’s decision not to purchase the program. Accordingly, it was only WMC who were in a position to offer training to its own employees and to the members of the Green Machine on how to safely operate the wood chipper.
Proximity
There was proximity in the present case. WMC derived a direct commercial benefit from the mulching project by using the Green Machine’s activities to promote WMC as an environmentally conscious corporation. There was a relevant proximity.
A Summation
WMC owned the wood chipper; owned and controlled the premises at which it operated; had power to control who used the wood chipper; had a commercial interest in the activities of the Green Machine; controlled its employees who oversaw the Green Machine and was commercially advantaged by the unpaid labour of the plaintiffs and. Both plaintiffs were vulnerable. This meant that ensuring safe operation was within the control of WMC. Proximity and neighbourhood existed. The wood chipper was obviously dangerous – there was a foreseeable risk of injury. The application of the salient features test leads to the conclusion that a duty of care was owed.
During oral submissions, counsel for WMC accepted that WMC owed a duty of care to Conor and Christopher. This concession was appropriate. Counsel however, maintained the submission that the scope of the duty was severely restricted. A consideration of the salient features allows an evaluation and determination of the scope of the duty of care.
The Scope of the Duty
In finding that WMC owed a duty of care to Conor and Christopher, the Judge observed:[12]
In Glasgow Corporation v Muir, the House of Lords considered the nature of the duty owed by the occupier of premises, namely tea rooms, to a number of children who were on the premises purchasing sweets. The children were injured when third parties, not employees of the occupier, dropped a tea urn that they had been carrying through the premises. The occupier of the premises derived no benefit from the third parties carrying the tea urn involved, and yet Lord Wright said:
That the appellants owed a duty to the children is not open to question. …Here the children were on the appellants’ premises in full view of Mrs Alexander, the appellants’ responsible servant, and were plainly liable to be injured if the place in which they were rendered dangerous to them by Mrs Alexander’s act in consenting to the urn being carried through the place. The question thus is whether Mrs Alexander knew or ought to have known that what she was permitting involved danger to the children.
[12] Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors [2005] SADC 172 at [177].
The Judge then went on to reject WMC’s submission that the wood chipper had been the subject of a gratuitous bailment to the Green Machine, and then concluded:[13]
I find that WMC had a duty to a class of persons, of whom Conor and Christopher Evans were two, to take reasonable steps to prevent injury arising from use of the machine. This is particularly so in the case of a dangerous machine such as the one in question.
[13] Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors [2005] SADC 172 at [179].
Counsel for WMC submitted that the scope of the duty of care only extended to advising of any defects or dangers that were known or ought to have been known to exist in the wood chipper. This submission should be rejected. The scope of the duty was more extensive.
The Green Machine, including Conor and Christopher, were involved in a mulching project using WMC’s wood chipper on WMC’s premises for the commercial benefit of WMC. The Green Machine was embraced and financially supported by WMC for the purpose of enhancing WMC’s environmental image.
The relationship between WMC and the Green Machine, although not that of employer and employee, had a number of similarities to such a relationship. WMC controlled the premises and the wood chipper. WMC allowed its Environmental Depot to be used, on a consistent and prolonged basis, by the Green Machine generally on Fridays and Saturdays. WMC placed signs on their gate, notifying the public of this fact. WMC undertook the responsibility to provide its own employees and members of the Green Machine with the safety equipment required, including goggles, earmuffs, gloves and overalls.
WMC had the authority to exercise significant control over the Green Machine’s operations, including the hours of operation and the circumstances in which the Green Machine could use the wood chipper. WMC used the unpaid labour, including the labour of young adolescents, for its commercial advantage.
The mulching project created a clearly foreseeable risk of injury. WMC was in a position to minimise this risk. WMC had the sole discretion to allow the use of the wood chipper on its premises and to regulate its use. Consequently, WMC were in a position to ensure that the operators were competently trained and to ensure that any adolescent, if permitted to operate the machine at all, was adequately supervised.
Accordingly, given the nature of the relationship between WMC and the Green Machine, the vulnerability of Conor and Christopher, and WMC’s ability to control and minimise the foreseeable risk, WMC owed a duty of care to Conor and Christopher to take reasonable steps to prevent injury arising from the use of the wood chipper.
WMC had a duty to take reasonable care to prevent injury, through the unsafe operation, on its premises, of the wood chipper by participants of the Green Machine. A reasonable response to the situation extended to at least the taking of reasonable steps to ensure that operators were properly trained and supervised.

The submission of counsel for WMC as to the restricted scope of duty should be rejected.
Occupier’s Liability
At trial, Conor and Christopher claimed that WMC, as occupier of the premises where the injuries occurred, breached section 17C of the Wrongs Act. The Judge did not make any specific findings on this issue. The question of whether WMC was liable pursuant to section 17C was not pursued on appeal.
Vicarious Liability
In New South Wales v Lepore,[14] Gleeson CJ addressed the doctrine of vicarious liability:[15]
An employer is vicariously liable for a tort committed by an employee in the course of his or her employment. The limiting or controlling concept, course of employment, is sometimes referred to as scope of employment. Its aspects are functional, as well as geographical and temporal. Not everything that an employee does at work, or during working hours, is sufficiently connected with the duties and responsibilities of the employee to be regarded as within the scope of the employment. And the fact that wrongdoing occurs away from the workplace, or outside normal working hours, is not conclusive against liability.
Kirby J observed:[16]
Where the employer has authorised the employee’s conduct, there is no difficulty in assigning vicarious liability to that employer. Indeed, as Salmond pointed out, in such a case “liability would exist…even if the relation between the parties were merely one of agency, and not one of service at all”. The difficulty that has been experienced with the foregoing formulation has concerned category (b). Many of the debates in the cases have involved the question whether, in the particular circumstances, the employee, although acting in a wrongful and unauthorised way, has been attempting to perform service for the employer in an unauthorised way or, as it has often been put, was simply engaged in a “frolic of his own”.
[14] New South Wales v Lepore (2003) 212 CLR 511.
[15] New South Wales v Lepore (2003) 212 CLR 511 at [40].
[16] New South Wales v Lepore (2003) 212 CLR 511 at [308] (footnotes omitted).
Having regard to the duties of Mr Zwar as an employee of WMC and to the duty owed by WMC to the plaintiffs, there is no difficulty in concluding that WMC was vicariously liable for the acts of Mr Zwar that were, in this case, generally carried out in the course of his employment. As observed earlier there was no challenge to this conclusion on the hearing of the appeal.
Breach of duty - WMC
The Judge, in finding that WMC breached the duty owed to Conor and Christopher, observed:[17]
[17] Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors [2005] SADC 172 at [179]-[180].
In my view, a reasonable person in the position of WMC would have:
-      made inquiries of Arbor about the nature of the training program on offer before it was declined;
-      made enquiries of its own safety consultants with the same purpose;
-      had the machine assessed by suitably competent persons before allowing a person such as the plaintiff to operate the machine without adequate training;
-      heeded the warning in the Training and Operating Manual which states:
Do not operate this machine before you have been trained and have read and understood the Operators and Maintenance Manual.
-      satisfied itself of the level of training and competence of the people, including Conor Evans, who it knew were operating the machine.
In failing to do these things, WMC was in breach of its duty of care to the plaintiffs, and is therefore liable in negligence for their injuries and consequent losses.
These findings should be accepted. The evidence of breach is overwhelming. The inherent dangers associated with the wood chipper were obvious. Nonetheless, WMC allowed the members of the Green Machine, including adolescents, to use the wood chipper without adequate training. In the absence of formal training WMC did not require Mr Zwar, or any other person, to be satisfied that volunteers were competent at operating the wood chipper. There was no formal system of supervision or requirement that more than one person be present when operating the wood chipper.
WMC, through Mr Zwar, were aware that young adolescents were using an inherently dangerous machine, without supervision and were aware that they were not sufficiently reading, if at all, the Training and Operating Manual. WMC did not take the reasonable steps required to avoid or minimise risk.
In the present case, WMC had a duty to take reasonable steps to prevent injury arising from the use of the wood chipper. This duty included the obligation to take reasonable steps to ensure that all operators were adequately trained, that the machine was operated with appropriate supervision, and that the wood chipper was reasonably safe, in order to guard against reasonably foreseeable consequences. As earlier observed, an operator’s glove becoming snagged on foliage as it is fed into the infeed chute, or an operator tripping and falling into the infeed chute, are examples of reasonably foreseeable occurrences. An operator not ensuring that his or her head and shoulders are at all times level or above the control bar on the wood chipper is another. Such events were readily foreseeable. They were neither far-fetched nor fanciful. WMC should have taken precautions to guard against the risk of such events occurring. The less knowledge an operator had of the necessary safety precautions that should be adhered to when operating the wood chipper, the greater the risk of injury.
WMC was obliged to take reasonable care to guard against these reasonably foreseeable risks. As earlier observed, they did not do so. WMC was in breach of its duty of care to Conor and Christopher.
Causation
The Judge did not expressly address the question of causation in his reasons. Presumably the Judge considered that causation was, as a matter of common sense, self-evident.
In Fitzgerald v Penn,[18] the High Court observed that causation was “ultimately a matter of common sense”.[19] This “common sense” approach to causation was adopted in March v E & MH Stramare Pty Ltd[20] where Mason CJ observed:[21]
The common law tradition is that what was the cause of a particular occurrence is a question of fact which "must be determined by applying common sense to the facts of each particular case", in the words of Lord Reid: Stapley that proposition is supported by a long line of authority in the United Kingdom: Leyland Shipping Co; Admiralty Commissioners v SS Volute; Yorkshire Dale Steamship Co; Alphacell Ltd v Woodward; McGhee v National Coal Board. It is supported also by this Court's decision in Fitzgerald v Penn.
It is beyond question that in many situations the question whether Y is a consequence of X is a question of fact. And, prior to the introduction of the legislation providing for apportionment of liability, the need to identify what was the "effective cause" of the relevant damage reinforced the notion that a question of causation was one of fact and, as such, to be resolved by the application of common sense.
Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact -- to be determined by the application of the "but for" test -- and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing: see, eg, Fleming, Law of Torts, 7th ed (1987), pp 172-173; Hart and Honore, Causation in the Law, 2nd ed (1985), p 110. It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments: see Fleming, p 173. However, this approach to the issue of causation (a) places rather too much weight on the "but for" test to the exclusion of the "common sense" approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact. As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn "it is all ultimately a matter of common sense" and "[i]n truth the conception in question [i.e, causation] is not susceptible of reduction to a satisfactory formula".
[18] Fitzgerald v Penn (1954) 91 CLR 268.
[19] Fitzgerald v Penn (1954) 91 CLR 268 at 277.
[20] March v E & MH Stramare Pty Ltd (1990) 171 CLR 506.
[21] March v E & MH Stramare Pty Ltd (1990) 171 CLR 506 at 515 (footnotes omitted).
In Bennett v Minister of Community Welfare,[22] McHugh J, in affirming the common sense approach, summarised the position as follows:[23]
Whether or not a causal connexion exists between a breach of duty and any harm suffered by the person to whom the duty is owed is a question of fact to be decided on the balance of probabilities. The existence of the causal connexion is to be determined in accordance with common sense notions of causation and not in accordance with any philosophical or scientific theory of causation or any modification or adaptation of such a theory for legal purposes.
[22] Bennett v Minister of Community Welfare (1992) 176 CLR 408
[23] Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 428 (footnotes omitted).
The common sense approach was further affirmed in Medlin v State Government Insurance Commission,[24] where the High Court observed:[25]
For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience.
[24] Medlin v State Government Insurance Commission (1995) 182 CLR 1.
[25] Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6 (Deane, Dawson, Toohey, Gaudron JJ) (footnotes omitted).
Nonetheless, responsibility cannot be attributed to a defendant by applying the common sense approach to causation under some rule until the purpose and scope of that rule is known. As Gummow J observed in Chappel v Hart:[26]
In Environment Agency v Empress Car Co (Abertillery) Ltd, the leading judgment in the House of Lords was given by Lord Hoffmann. His Lordship stressed that whilst “the notion of causation should not be overcomplicated”, it should not “be oversimplified”. He went on to emphasise that (a) the legal issue is not what caused the result complained of, but did the defendant cause it, and (b) “common sense” answers to questions of causation will differ according to the purpose for which the question is asked and the rule by which responsibility is being attributed. In particular, “one cannot give a common sense answer to a question of causation for the purpose of attributing responsibility under some rule without knowing the purpose and scope of the rule”.
[26] Chappel v Hart (1998) 195 CLR 232 at [63] (footnotes omitted).
In the present case, the precise circumstances leading to Conor’s injury are not known. However, as earlier observed, the trial Judge’s findings as to Conor’s glove becoming snagged on foliage being fed into the infeed roller, was not only open on the evidence but was an appropriate finding fully justified by the evidence. It is probable that at the time Conor was in a position when his head and shoulders were below the control bar. This finding, together with the foregoing observations, establishes causation as a matter of common sense.
Nevertheless, it may not be necessary to determine precisely how Conor came to be entrapped by the infeed roller in order to determine whether there is a causal connection between WMC’s breach and Conor and Christopher’s injuries.
In Betts v Whittingslowe[27] the plaintiff was a 14-year-old boy employed to operate a power press that included a moving ram that was highly dangerous to the hands of an operator unless the machine was equipped with a guard. While operating the machine the plaintiff’s hand was seriously injured. There was no evidence as to the circumstances in which the plaintiff put his hand into the machine. The Court, in finding that Whittingslowe breached a statutory duty owed to the plaintiff, held that it was not necessary to determine the precise circumstances in which the incident occurred. Dixon J observed:[28]
[T]he breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty.
[27] Betts v Whittingslowe (1946) 71 CLR 637.
[28] Betts v Whittingslowe (1946) 71 CLR 637 at 649.
In Chappel v Hart, McHugh J addressed the issue as follows:[29]
[T]he onus of proving that the failure to warn was causally connected with the plaintiff’s harm lies on the plaintiff. However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists.
Gaudron J in adopting the above observations of Dixon J, commented:[30]
Questions of causation are not answered in a legal vacuum. Rather, they are answered in the legal framework in which they arise. For present purposes, that framework is the law of negligence. And in that framework, it is important to bear in mind that that body of law operates, if it operates at all, to assign a duty to take reasonable steps to prevent a foreseeable risk of harm of the kind in issue.
…The duty was called into existence because of the foreseeability of that very risk. The duty was not performed and the risk eventuated. Subject to a further question in the case of a duty to provide information, that is often the beginning and the end of the inquiry whether breach of duty materially caused or contributed to the harm suffered. As Dixon J pointed out in Betts v Whittingslowe, albeit in relation to a statutory duty, “breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach.”
[29] Chappel v Hart (1998) 195 CLR 232 at [34].
[30] Chappel v Hart (1998) 195 CLR 232 at [7]-[8] (footnotes omitted).
This reasoning is apposite. In the present case the breach of duty by WMC coupled with an incident of the kind that might thereby be caused, justifies the inference, in the absence of any sufficient reason to the contrary, that the incident did occur owing to the breach of duty owed by WMC. There is in the present case no sufficient reason to the contrary.
Another alternative approach was discussed in Bennett v Minister of Community Welfare where Gaudron J observed:[31]
Leaving aside cases involving some positive act and those in which an omission can be treated as a positive act, a case based on omission or a failure to act will, in certain respects, fall for analysis in a way that differs from that appropriate for a case based on a positive act. Thus, in the case of a positive act, questions of causation are answered by reference to what, in fact, happened. In the case of an omission, they are answered by reference to what would or would not have happened had the act occurred. In that exercise, the larger philosophical questions are brushed aside and the issue is approached on the basis that “when there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm”.
In practice, it is not always necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a “breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty”.
And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury.
[31] Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-421 (footnotes omitted).
Applying this alternative reasoning, causation is established. As the injury occurred within an area of foreseeable risk it is to be taken that the breach of duty by WMC caused or materially contributed to the injury.
Further, at the most general level the application of common sense leads to the conclusion that causation has been established. To permit an adolescent to operate a highly dangerous wood chipper without proper training, without the machine being fitted with an extended chute and without the machine being assessed by WMC safety personnel, allows the common sense conclusion that the conduct of WMC was a material cause of the plaintiff’s injury.
Rivett and Arbor
In 1969, Mr Rivett established an arboricultural and landscaping business. In the mid 1970’s, the business began to manufacture and import arboricultural equipment. In or around the early 1980’s, after a structural change within the business, the Rivett and Arbor entities were created. At relevant times Mr Rivett was an officer of both entities. From the early 1980’s, Rivett began to import and then manufacture wood chippers.
Manufacturing History
In 1987, in response to safety concerns with respect to the distance between operator and infeed roller, Rivett extended the infeed chute length from 600mm to 900mm on all newly manufactured wood chippers. Arbor offered customers the option of purchasing for their existing wood chippers a bolt-in section to extend the infeed chute and an extended control bar in order, it was suggested, to bring the wood chippers up to the then current safety levels. In July 1987, Mr Rivett offered the bolt-in section to the Townsville City Council. Accompanying the letter of offer was a product information bulletin where the following statement appears:
In recent months some concern for the safety of the operators when feeding the Chipper with short material has been expressed in some quarters, it was considered by some in Australia that the proximity of the Pinch Point of the Infeed Rollers inside the Infeed Guard was a potential hazard. Some manufacturers immediately capitulated to recommendations from Safety Officers and Department of Labour and Industry, to install a Feed Table similar to those historically fitted to Drum style Chippers.
As the Infeed System of our Chipper had been designed in collaboration with Ergonomic Consultations we were unprepared to trade a perceived hazard for the real hazard that the Feed Table provides…
Working with the Department of Labour and Industry in Victoria, our Ergonomic Consultants and those of the State Electricity Commission, we developed an Infeed Chute and operating system that provides the equal protection of a Feed Chute Table while enhancing operator safety and work stress reductions. To this end the following new design has been developed to be carried out on the existing Infeed Chute Protection System for all new machines.
THE CRITERIA FOR THIS MODIFICATION WILL BE:
The distance from the Pinch Point of the Feed Rollers being taken as the axle centre of the Bottom Feed Roller to the leading edge of the Infeed Chute will be a minimum of 850mm.
The Feed Control Bar will exceed the width of the Infeed Chute by a minimum of 50mm from either side and 50mm above and shall be proud of the Infeed Chute in the reverse position (forward) by no less than 5mm and 160mm in the Infeed position (outward).
The distance when reaching into the machine from the first line of contact, being the safety reverse bar, to the rollers, in an erect or near erect position shall be 1.2m minimum. The result will be, when in the normal operating position an operator breaches correct working practice and reaches into the Infeed Chute, they will trip the Infeed Bar to the neutral or reverse position well before reaching the Feed Rollers.

Professor Churches, while agreeing that the general principles of guarding by distance should be applied when designing a machine such as the wood chipper, was nonetheless of the opinion that the table could not be applied. However, Professor Churches could provide no valid reason why the required length of the infeed chute would be less if the barrier height were lower.
The trial judge was entitled to place weight and act upon the evidence of Mr Simpson, Dr Shafaghi and Mr Vasey; indeed there was a compelling case to do so.
As earlier observed, Arbor was the retailer of Rivett wood chippers. Mr Rivett was a director of both Arbor and Rivett. As Rivett was the manufacturer and Arbor was the retailer it is necessary to consider their respective duties separately.
Rivett
The Trial Judge’s Conclusions
The Judge reached the following conclusions:[38]
[38] Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors [2005] SADC 172 at [165], [165]-[167].
On the basis of those authorities, I find that Rivett had a duty to take reasonable care to prevent injury to a class of persons, of whom Conor and Christopher were two namely potential users of the machine. In my opinion, the magnitude of the risk of injury to the operator was high, although the probability of such an occurrence was low.
…
A reasonably competent engineer should have concluded that the machine was dangerous. The risk could have been minimised by:
§Lengthening the infeed chute to not less than 1400mm in length;
§Giving clear instructions that the height of the chute should be adjusted so that the forward/ reverse roller bar was always at or below shoulder height;
§Emphasizing to WMC when it purchased the machine that training of all operators was essential to the safe operation of the machine.
In my opinion, by failing to do these things, Rivett was in breach of its duty of care to the plaintiffs, and is liable in negligence for their injuries and consequent losses.
Duty of Care
The duty of care of a manufacturer of goods was addressed in Donoghue v Stevenson[39] where Lord Atkin observed:[40]
[A] manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.
[39] Donoghue v Stevenson [1932] AC 562.
[40] Donoghue v Stevenson [1932] AC 562 at 599.
Donoghue v Stevenson has been applied in numerous subsequent Australian authorities. In Graham Barclay Oysters P/L v Ryan,[41] where McHugh J summarised the duty in the following terms:[42]
The duty of care owed by a manufacturer or producer to a consumer is a duty to take reasonable care to avoid injury to the consumer.
[41] Graham Barclay Oysters P/L v Ryan (2002) 211 CLR 540.
[42] Graham Barclay Oysters P/L v Ryan (2002) 211 CLR 540 at 585 (footnotes omitted).
In Suosaari v Steinhardt,[43] Cooper J (with whom Connolly and Ryan JJ agreed) described the duty owed by a manufacturer as follows:[44]
The requisite degree of proximity exists between a manufacturer and the user of the article produced because the user is so closely and directly affected by the act of designing and manufacturing an article that the manufacturer ought reasonably to have the user in contemplation as being affected when the manufacturer is directing his mind to the sufficiency of the design and manufacturing process, the safety of the product and the circumstances of distribution at the time when he places the product into circulation for use or consumption.
[43] Suosaari v Steinhardt [1989] 2 Qd R 477.
[44] Suosaari v Steinhardt [1989] 2 Qd R 477 at 487.
In the present case, the relationship between Rivett and the plaintiffs existed in respect of Conor and Christopher’s use of the wood chipper. Counsel for Rivett accepted that Rivett owed Conor and Christopher a duty of care. It was Counsel’s contention that the Judge erred in determining the scope of that duty.
In the course of his reasons the trial Judge referred to the following observations of Dixon CJ in Dunlop Rubber Australia Ltd v Buckley:[45]
The question here is one of characterisation. Should the machine be characterised as dangerous? It appears to me that the very nature of the machine, including its capacity for carrying in the fingers, or hand, or clothing of an operative speaks for itself. Common experience shows that all machinery depending upon rollers exposes the person using them to the risk of his hands or his clothing being involved in the rollers. Common experience is here borne out by the actual experience in relation to the particular machine. It is no doubt true that the jury were at liberty to discount the evidence of previous accidents. It is also true that the jury were at liberty to take into account the fact that the machines were widely used over a long period of years and the instances given were not numerous when considered in relation to the extent and period over which the machines had been used, but, nevertheless, they remained illustrations of what might happen. It may well be true that in every case, some carelessness, inattention or folly on the part of the workman would explain the fact that he had become involved in the machine. But that is nothing to the point. By definition a machine is dangerous if it exposes persons guilty of inadvertence, inattention, carelessness or folly to danger.
Although the observations were made in the context of a breach of statutory duty they are of assistance in the present case.
[45] Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 324.
The Judge also referred to the following relevant observations of Bergin J in Proctor & Gamble Pty Ltd v Australian Slatwall Industries Pty Ltd:[46]
A manufacturer is under a duty not to put a product in to circulation without bringing to it, in the case of machinery, the mind of a reasonably competent engineer to ascertain whether the design of the product is safe. If a competent engineer would have discovered the defect as one which unreasonably exposed the use to risk then the duty of the manufacturer is twofold: firstly, to actually see the risk, secondly, to take all reasonable steps to eliminate or minimise it, or if it cannot be eliminated or minimised, to clearly warn the user of its existence. A manufacturer who fails to take both of these steps breaches the duty of care owed to the user of the product.
[46] Proctor & Gamble Pty Ltd v Australian Slatwall Industries Pty Ltd [2001] NSWSC 398 at [40].
The duty, once established, has also been described as a duty to take reasonable care to avoid a reasonably foreseeable and real risk of injury.[47] The risk of injury was both foreseeable and real if it is of a kind that would be sustained by a member of the class of which Conor and Christopher formed part and is neither far-fetched nor fanciful, irrespective of its probability.[48]
[47] Suosaari v Steinhardt [1989] 2 Qd R 477 at 487.
[48] Suosaari v [1989] 2 Qd R 477 at 487; Whyong Shire Council v Shirt (1980) 146 CLR 40 at 47.
The manufacturer has a duty to take reasonable care to design and produce its products so they are safe for all reasonable and intended, foreseen or reasonably foreseeable uses. A court, in considering whether a manufacturer has breached its duty of care, will consider the seriousness of the particular risk of injury or damage to property, the degree of probability that it may occur and the expense, difficulty and inconvenience involved in reducing that risk. In Wyong Shire Council v Shirt,[49] Mason J observed:[50]
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
[49] Wyong Shire Council v Shirt (1980) 146 CLR 40.
[50] Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.
It is relevant but not determinative of whether a defendant breached its duty of care that the defendant contravened a relevant regulation or failed to comply with a direction or recommendation of a regulatory authority.[51]
[51] Wilkins v Dovuro (1999) 169 ALR 276 at [95] (Wilcox J).
Counsel for Rivett contended that the scope of the duty of the manufacturer was to take all reasonable care in the design and manufacture of the machine so that if used appropriately and in accordance with its intended use, it could be used safely. It was the submission of counsel for Rivett that Connor did not operate the wood chipper in accordance with the manufacturer’s design and instructions for use. This submission does not correctly identify the scope of the duty.
Whilst the manufacturer is not obliged to take precautions against a risk that may arise when a product is used outside the bounds of its intended use or operation, the manufacturer should take into account any possible use or mode of operation that may be reasonably foreseeable as involving a real risk.[52] In Suosaari Cooper J in discussing the scope of the manufacturer’s duty observed:[53]
[W]ithin the range of foreseeable risk a manufacturer is required to take reasonable care in the design and manufacture of the product.
In undertaking the process of design a manufacturer is under a duty “to design his machine so as to keep its inherent dangers to a minimum and so as to avoid the addition of further risks which [are] not inherent” (Todman v Victa Ltd [1982] VR 849 at 852 per Lush J and see to similar effect Murphy J at 857). Discharge of the duty requires the designer to think through the suitability of the design, the problems and risks associated with the design; the graver the foreseeable consequences of failure to take care, the greater the necessity for special circumspection (Independent Broadcasting Authority v E.M.I Electronics Ltd (1980) 14 BLR 9 (HL) at 28, 31; Winward v TVR Engineering [1986] BTLC 366 CA).
[52] Suosaari v Steinhardt [1989] 2 Qd R 477 at 488.
[53] Suosaari v Steinhardt [1989] 2 Qd R 477 at 488 – 489.
The standard to be applied when one is dealing with a machine is that of a reasonably competent engineer.[54] A manufacturer is under a duty not to put a machine into production without bringing to it the mind of a reasonably competent engineer to determine whether the design of the product is safe. If a reasonably competent engineer would have discovered the defect that would potentially expose the user to a risk of injury then the duty of the manufacturer is to take all reasonable steps to eliminate or minimise that risk, particularly when the alteration to the design would be simple and inexpensive.[55]
[54] Suosaari v Steinhardt [1989] 2 Qd R 477 at 489; Winward v T.V.R Engineering [1986] BTLC 366 CA; Griffiths v Arch Engineering Co Ltd [1968] 3 All ER 217 at 221-222.
[55]Suosaari v Steinhardt [1989] 2 Qd R 477 at 489-490.
A manufacturer will have breached its duty of care where the manufacturer is aware of the risk posed by a particular formulation or design or where the manufacturer could have discovered the risk with the exercise of reasonable diligence and the manufacturer fails to take reasonable precautions to avert the risk.[56] Rivett was so aware. Rivett knew, or ought to have known, that the length of the infeed chute and thereby the distance between the operator and the cutting blades presented a significant risk of serious injury or death.
[56] Suosaari v Steinhardt [1989] 2 Qd R 477 at 487.
However, it is apparent from the evidence, in particular the evidence of Mr Rivett, that he was more concerned with the ergonomics of the wood chipper than with the danger posed by the length of the infeed chute. It was unreasonable for Rivett to continue upon this course when a substantial body of opinion in the industry was that the length of the infeed chute was dangerous and posed an unacceptable risk of injury to operators of the wood chipping machines.
The suggested safety features, namely the control bar and the knee bar, were insufficient to guard against the serious injury that was likely to occur if the operator was drawn into or fell into the infeed chute of the wood chipper. Mr Rivett’s claim, that an operator using the wood chipper as it was designed to be used could not enter the infeed chute without hitting and thereby engaging the control bar, did not account for an operator loading foliage into the chute from the front and not the side of the chute, for a variance in the height of the trailer, for the risk that an operator could take up a position with his or her head and shoulders below the level of the control bar or for the risk that an operator might trip or fall and be dragged into the chute. All of these varying circumstances were reasonably foreseeable.
Properly understood, “intended use of the machine” is another way of stating the test of reasonable foreseeability of harm from use of the machine in the environment in which it is used, taking into account the circumstances of the user. Furthermore, the intended use of a machine should be determined from what the reasonable user would understand the intended use or operation of the machine to be.
Mr Rivett’s mind was turned on numerous occasions to concerns with respect to the distance between the operator and the infeed roller. WorkSafe Western Australia were so concerned they issued a prohibition notice, a notice that was only cancelled after Mr Rivett and Mr Killeen, on their own admission, provided inaccurate and misleading information.
Rivett was again put on notice when Mr Bell suffered the traumatic amputation of both his arms while operating a Rivett wood chipper. Mr Rivett was an attendee of meetings convened by New South Wales WorkCover addressing safety concerns in the wood-chipping industry. It was at these meetings that the danger posed by the length of the infeed chute was directly discussed and changes implemented. As earlier observed, Mr Rivett was the only member who abstained from voting, all other members voted in favour of extending the infeed chute.
Following this meeting and before the sale of the wood chipper to WMC, Mr Jarvis was seriously injured using a Rivett wood chipper. This should have sounded further “alarm bells” that it was reasonably foreseeable that an operator’s hands might enter the infeed chute and that guarding by distance was the most obvious way to sufficiently guard against serious injury.
Following Mr Bell’s injuries, WorkCover Victoria brought to the attention of Rivett the fact that they did not consider the wood chipper conformed to Australian Standard AS 4024.1 as the distance between the infeed chute and the cutting blades was below 1430mm. However, despite all this information, Rivett took no action to permanently extend the length of the infeed chute on the Rivett wood chippers.
The risk of serious injury was too great for Rivett not to extend the infeed chute on all Rivett wood chippers. This was not an undue burden. Rivett breached the duty of care owed to Conor and Christopher, as an end user of the wood chipper, by not doing so. As the Judge concluded:[57]
Mr Rivett’s stubborn refusal to accept the proposition that extending the chute length on his machines would render them safer seems to have become an article of faith to him. In my view, his attitude is unreasonable. Lengthening the chute, must, as a matter of logic, make it safer, and the risk of injury to the operator would therefore have been reduced.
This conclusion of the trial Judge as well as the conclusions referred to in [on page 55] were not only open to him but was in the circumstances entirely appropriate.
Arbor
[57] Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors [2005] SADC 172 at [131].
The Trial Judge’s Conclusions
The trial Judge reached the following conclusions concerning Arbor:[58]
The existence of a duty of care owed by a seller of a product to its ultimate consumer is based upon the same footing as that of the manufacturer of the product.
…
On the basis of these authorities, I have no trouble finding that the machine in question here was dangerous. As such, there was a high duty on Arbor to give adequate warning of the risks involved in its use, and Arbor should have taken all steps necessary to ensure that the risk of harm to the operator was minimised.
For the same reasons as I mentioned in relation to Rivett, Arbor was in breach of its duty of care to the plaintiffs, and is liable in negligence for their injuries and consequent losses.
[58] Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors [2005] SADC 172 at [171], [174]-[175].
Duty of Care
The relationship of vendor and purchaser or vendor and end consumer, does not of itself give rise to a duty of care.[59] In Laundess v Laundess[60] Mahoney JA (with whom Meagher JA and Powell JA agreed) observed:[61]
In my opinion a vendor of goods does not, as such, have a duty in negligence to a purchaser. There must be something more than a mere relationship of vendor and purchaser. The problem is to define what more is necessary and when the duty arises.
His Honour continued:[62]
I do not think that that additional factor can be stated in a simple formula of words. The circumstances in which a duty of care will be imposed upon a vendor of goods must in my opinion depend upon the nature of the goods, the risk involved, and the circumstances of the case.
[59] Laundess v Laundess (1994) Aust Torts Reports ¶81-316 (61,870); McPherson’s Ltd v Eaton & Others (2005) 65 NSWLR 187; Imperial Furniture Pty Ltd v Automatic Fire Sprinklers Pty Ltd [1967] 1 NSWR 29.
[60] Laundess v Laundess (1994) Aust Torts Reports ¶81-316 at 61,870.
[61] Laundess v Laundess (1994) Aust Torts Reports ¶81-316 at 61,874.
[62] Laundess v Laundess (1994) Aust Torts Reports ¶81-316 at 61,876.
In McPherson’s Ltd v Eaton & Others,[63] Ipp JA (with whom Mason P and Hodgson JA agreed) discussed the authorities that support the position taken by Mahoney JA and concluded:[64]
[The Court was] not referred to any other case in Australia or England, nor have I been able to find one, where a duty of care has been imposed on a retailer merely because a relationship of vendor and purchaser, or vendor and end-consumer, existed.
In my opinion the relationship of vendor and purchaser, or vendor and end-consumer, does not automatically give rise to a duty of care. Such relationships do not fall within the familiar categories of cases where, by the mere existence of these relationships, a duty of care arises… I agree with Mahoney JA’s view that “something more” must exist before a duty of care arises.
[63] McPherson’s Ltd v Eaton & Others (2005) 65 NSWLR 187.
[64] McPherson’s Ltd v Eaton & Others (2005) 65 NSWLR 187 at [80]-[81].
Additional factors sufficient to give rise to a duty of care between a vendor and purchaser or vendor and end user have included the circumstances where the vendor had actual knowledge that the product was likely to cause danger to the purchaser or end user;[65] where the vendor represented to the purchaser that the product was in good condition and was in a position to have discovered the defect;[66] where the vendor had knowledge that should have put the vendor on inquiry;[67] where the product was so notoriously dangerous that the vendor could not say that he was unaware of the danger;[68] and where the vendor did not simply supply the product but was also either the manufacturer[69] or was involved in the design and inspection of the product after its manufacture but before sale.[70]
[65]Clarke v Army and Navy Co-operative Society Ltd [1903] 1 KB 155; Watson v Buckley, Osborne Garrett & Co Ltd and Wyrovoys Products Ltd [1940] 1 All ER 174; Cuckow v Polyester Reinforced Products Pty Ltd (1970) 19 FLR 122; CSR Ltd v Wren (1998) 15 NSWCCR 650
[66] Andrews v Hopkinson [1957] 1 QB 229.
[67] Fisher v Harrods Ltd [1966] 1 Lloyd’s Rep 500.
[68] Imperial Furniture Pty Ltd v Automatic Fire Sprinklers Pty Ltd [1967] 1 NSWR 29.
[69] Thompson v Johnson and Johnson Pty Ltd [1991] 2 VR 449; Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307.
[70] Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359.

In Lanza v Codemo Management Pty Ltd,[71] Wood CJ in accepting that the mere fact of entry into a contract for sale of goods did not of itself establish a duty of care, observed:[72]
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.
[71] Lanza v Codemo Management Pty Ltd [2001] NSWSC 845.
[72]Lanza v Codemo Management Pty Ltd [2001] NSWSC 845 at [171].
In the present case, Arbor had substantially the same knowledge with respect to the wood chipper as Rivett, the manufacturer. Mr Rivett was a director of Arbor. Arbor, through Mr Rivett, knew that the wood chipper was a dangerous machine. Mr Rivett considered training essential to guard against the risk of serious injury or death. Arbor knew that a code of practice had been implemented in New South Wales stipulating that the chute needed to be at least 1450mm long. Arbor knew that other States had expressed concerns with respect to the length of the infeed chute. Arbor knew that Mr Bell suffered traumatic amputation of both of his arms and that Mr Jarvis suffered serious injuries while they were operating Rivett wood chippers and that this was caused in part by their lack of training. Arbor knew that Mr Bell and Mr Jarvis were injured while inserting their arms into the infeed chute of the wood chipper. The knowledge Arbor had was sufficient to give rise to a duty of care between Arbor and Conor and Christopher.
Arbor had a duty to take reasonable care to avoid not just a reasonably foreseeable risk but a real risk of injury – that is one that was likely to eventuate.
In determining what was reasonably foreseeable, the standard must be that of a reasonable retailer in the position of Arbor and in the present case with the particular knowledge that Arbor had through Mr Rivett. It was reasonably foreseeable that a wood chipper, sold to a public company, would be used by persons of varying ages and skill and that in the absence of training there was a real risk of injury or death. It was reasonably foreseeable that a purchaser unaware of the industry’s decision to extend the infeed chute for the purposes of safety would not understand the critical importance of purchasing the extended chute. It was reasonably foreseeable that without the operator receiving adequate training and the wood chipper being fitted with the extended chute there was a real risk of injury or death.
An extended chute was critical to the safe operation of the wood chipper. A reasonable retailer with the particular knowledge that Arbor had as a result of Mr Rivett’s knowledge, would have provided the wood chipper with an extended infeed chute. A reasonable retailer in the position of Arbor, with the knowledge of Arbor, would, at the very least, have emphasised to the purchaser the importance of the training program and provided the purchaser with sufficient information with respect to the extended chute to enable the purchaser to make an informed decision.
Arbor breached the duty of care owed to the plaintiff by offering the training program to WMC in the terms that it did rather than on the basis that the program was designed to train operators of the wood chipper in its safe operation. Mr Rivett considered training critical to guard against injury or death but did not inform WMC of its critical nature, rather by stating that the training program could be declined, he downplayed its importance.
The earlier referred to conclusions reached by trial Judge were correct. It is clear that Arbor owed a duty of care to the plaintiffs and that this duty was breached.
Causation – Rivett and Arbor
The breaches of duty of Rivett and Arbor were, on the application of the common sense test, a material cause of the injuries sustained by the plaintiffs. The other approaches to causation identified earlier, when discussing the conduct of WMC, also lead to the same conclusion. The reference to the authorities and the general reasoning referred to with respect to WMC, apply also to the conduct of Rivett and Arbor and by reference are incorporated in this section of my reasons.
It is to be observed that this is a case where the lack of the extended chute and the lack of proper training led to the injury sustained. It is reasonable to draw the inference that WMC would have followed advice as to the utilisation of necessary safety equipment and proper training.
Contributory Negligence
The Judge’s finding as to contributory negligence on the part of Conor was challenged on appeal. His Honour concluded:[73]
Having regard to the inadequacy in the design of the machine, and the lack of training Conor had received in the safe operation of the machine, and my findings that the most likely explanation for his injuries was that he became snagged on an ingoing piece of foliage while he was allowing the foliage to run through his hands, possibly while looking away, I conclude that Conor’s role in the causation of his injury could be classified as no greater than inadvertence. He had not been warned against this behaviour, indeed the video displays his father operating the machine in the same way. It was from his father and mother that Conor received his training in the safe operation of the machine. It could not be said that Conor was aware of the risk he was undertaking, or that he was behaving in a foolhardy or reckless manner when he sustained his injuries.
In those circumstances, I do not consider that Conor is guilty of contributory negligence.
[73] Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors [2005] SADC 172 at [205]-[206].
The relevant principles, in the context of an employer/employee relationship, were summarised by Mason, Wilson and Dawson JJ in Bankstown Foundry Pty Ltd v Braistina:[74]
A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage: see Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492.
While Conor was not an employee of WMC, the above analysis is apposite given the relationship between the volunteers of the Green Machine and WMC and the circumstances that gave rise to Conor’s injury.
[74] Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310.
Counsel for WMC contended that Conor’s injury was caused or contributed to by his own inattention and failure to follow the safe working practices in which he was trained. Rivett and Arbor adopted WMC’s submissions.
While the earlier reference to the video demonstrates that Conor was not operating the wood chipper in compliance with the Training and Operating Manual, he was operating it in a similar manner to that of the other members of the Green Machine. In the context of the finding that WMC breached the duty of care owed to Conor by failing to provide a formal system of training and supervision, and that Rivett and Arbor breached their duty of care to Conor by providing a wood chipper that was inherently dangerous without taking reasonable care to guard against serious risk of injury or death, the conclusion that Conor’s conduct was in the categories of “mere inadvertence, inattention or misjudgment” was open to the trial judge.
The Judge’s finding that Conor was not contributorily negligent should not be disturbed.
Trade Practices Act
The plaintiffs claimed against Rivett an entitlement to compensation pursuant to section 75AD of the Trade Practices Act 1974 (Cth). The Judge considered that claim and concluded:[75]
The plaintiffs in this case argued that there was no warning given that the machine should only be operated when it was level, and with the bottom edge of the infeed chute no more than 600mm from the ground. Further, there was no warning that the operator’s head and shoulders should always be above the level of the forward/ reverse roller bar. Accordingly, they argued that the machine was defective within the meaning of s 75AD and that they are entitled to recover damages. Having regard to the findings I have made in relation to the claims in negligence, there is little doubt that the plaintiffs would have succeeded in this alternative claim as well.
[75] Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors [2005] SADC 172 at [190].
The Judge treated this as an alternative claim on which he did not proceed to reach a final conclusion or enter judgment.
As against Arbor, the plaintiffs claimed damages arising from alleged breaches of sections 52, 53(a), 53(aa) and 53(c) of the Trade Practices Act. The claim pursuant to section 53(aa) was abandoned.
With respect to the claim against Arbor, the Judge concluded:[76]
Having regard to the findings I have made in relation to the claims in negligence, there is little doubt that the plaintiffs would have succeeded under these headings as well. In my opinion, the statement that the Rivett machines provided the highest degree of operator safety of any wood chipper in the world was misleading and deceptive. As the plaintiffs argued, it is sufficient for this purpose if the representation is factually incorrect whether or not the representor knew this.[77] Clearly, on the findings I have made, the representation was factually incorrect, and hence a breach of s 52(a). Further, the representation in the Training and Operation Manual that the machine complied with Australia and British Standards, and in particular AS4024.1, was false, and hence there was a breach of s 53(a) as well. These breaches overlap.
[76] Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors [2005] SADC 172 at [195].
[77] Darwin Bakery v Sully (1981) 51 FLR 90.
On the hearing of the appeal counsel for the plaintiff did not develop submissions with respect to the Trade Practice Act claims. The submissions were limited as follows:
Regarding the trade practices, if the court accepts the findings of negligence with respect to Rivett and Arbor, there is little value to the first and second respondents in the outcome of the debate or the issue regarding the trade practices.
However we have addressed the issue of 75AD and s.52 in the outline of submissions. We say that on the material that we present, it was appropriate for his Honour to find that on his findings, there are breaches of both those sections.
As I understand, [Counsel for Rivett] criticism of his Honour’s findings is that they springboard off what he says is a finding of negligence against Rivett and Arbor. With respect, they incorporate the 22 findings of fact that his Honour made at para 153 and incorporate all those findings and then his Honour uses those findings to proceed to findings of negligence and therefore it is trite or it’s not appropriate to say that his findings at para 167 are the only findings which support the findings of trade practices breach.
However, damages were assessed at common law. There was no argument put to his Honour that there should have been a different measure of damages for a breach of the trade practices. Damages at this stage are not in issue so we say that whilst the findings of his Honour that there was sufficient evidence to find that there was a breach, if negligence is found, we don’t have to rely on the trade practices.
A review of the plaintiffs outline discloses little reference to the Trade Practices Act claims and in that document no submissions were developed. The plaintiffs’ counsel made it clear that his clients do not wish to pursue the Trade Practices Act claims if the claims in negligence were established.
This Court, on the hearing of the appeal, did not press counsel for the plaintiffs to either abandon the Trade Practices claims or to properly develop the relevant submissions. On reflection it would have been desirable to do so. In the circumstances the plaintiffs’ counsel has not sought a judgment in respect of the Trade Practices Act claims. There is no complaint that the Judge failed to enter judgment on those claims.
In the circumstances, it is appropriate on the delivery of judgment for this Court to clarify whether the plaintiffs wish to re-open argument on the appeal to pursue their Trade Practices Act claims.
Counsel for Rivett and Arbor in the written outlines sought to challenge the findings in respect to both of the claims in the Trade Practices Act. However, the written outline and later the oral submissions only sought to challenge the trial Judge’s reasoning in regard to the claim under section 75AD. Unless the plaintiffs seek relief with respect to any breach of the Trade Practices Act, there is no reason for this Court to consider the submissions of Rivett and Arbor.
WMC sought to raise the Trade Practices Act issues with respect to a claim for contribution and indemnity pursuant to section 25C of the Wrongs Act 1936 (SA) (now replaced by the Civil Liability Act 1936 (SA)). In the present case there was no indication in the reasons of the Judge that he was requested to make such a finding. There was no consideration of the issue at all in His Honour’s reasons. The claim for contribution and indemnity made by WMC does not particularise within it, any claim pursuant to the Trade Practices Act. There is a bare assertion of “Breach of the Trade Practices Act”. There is no separate claim for relief. WMC did not seek to plead or properly particularise a claim pursuant to the Trade Practices Act or to rely on breaches of the Trade Practices Act when seeking contribution and indemnity.
The Trade Practices claim is misconceived. WMC, if successful in any Trade Practices claim, would be entitled to relief pursuant to section 82 of the Trade Practices Act. That section provides a remedy of damages – not an entitlement to an indemnity. WMC may have, in an appropriately pleaded claim, been entitled to pursue a claim for damages. Damages may have been assessed in the same amount as the damages that WMC was liable to pay Conor and Christopher. However that is not a right of indemnity.
Apportionment
Counsel for WMC and counsel for Rivett and Arbor challenged the Judge’s apportionment of liability.
In apportioning liability, 70% to Rivett and Arbor and 30% to WMC, the Judge observed:[78]
In this case, Rivett and Arbor were the entities which had the knowledge and expertise of the wood chipping industry, they were fully aware of the dangerous nature of the machine, and the debate, which they had lost, about the length of the infeed chute. It was Mr Rivett who emphasized that appropriate training was essential for the safe operation of the machine. Essentially, in my view, Rivett and Arbor were the predominant authors of the plaintiff’s injuries.
I have already held that there was a duty on WMC to ascertain for itself the nature and characteristics of the machine, and the need for training and so forth before making it available to what it knew were inexperienced and youthful volunteers. Although they did not have the precise understanding which Rivett and Arbor had, the dangerous nature of the machine must have been obvious. Mr Zwar had put a newspaper cutting of an accident in Western Australia using a similar machine in the tool shed for the attention of the volunteers to warn them of this fact. In those circumstances, WMC’s contribution to the plaintiff’s injuries is substantial, but not as substantial as that of Rivett and Arbor.
[78] Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors [2005] SADC 172 at
In contribution proceedings, the court determines what is a just and equitable apportionment by making a comparison of the culpability of tortfeasors, that is, the degree to which each has departed from the standard of reasonable care, and the relative importance of the acts of each in causing damage.
Counsel for Rivett and Arbor contended that if a finding were made that both were liable, his clients were at best remote tortfeasors. Counsel submitted that Rivett manufactured, and Arbor sold, a wood chipper that was designed and intended to be used to mulch foliage. That was necessarily a potentially dangerous activity. Counsel emphasised that WMC was legally liable for the manner in which the wood chipper was used. WMC permitted the wood chipper to be used by adolescents without any real supervision and without any adequate training. Counsel contended that Rivett and Arbor did not know and had no control over the way in which WMC permitted the wood chipper to be used. Accordingly, it was Rivett and Arbor’s submission that the major proportion of liability should fall on WMC.
Counsel for WMC submitted that WMC was entitled to contribution for any liability that it might bear. It was said that Rivett and Arbor were the predominant authors of Conor’s injuries. Counsel summarised WMC’s position as follows:
Had there been some negligence on the part of WMC and had it been shown to be in some way causative of the injury to the first plaintiff, the responsibility of Rivett and Arbor, upon which WMC had reasonably relied, is so great that any contribution in their favour is either not justified or very small. The risk and danger consequent upon Rivett and Arbor was of such a magnitude that there remained no room for any liability to attach to WMC.
Earlier in these reasons, breach of duty on the part of WMC has been addressed. WMC was aware of the dangers of the machine. WMC’s breach of duty was not of a minor or inconsequential nature. Had WMC complied with its duty of care the incident would not have occurred at all, or alternatively, the risk of it would have been greatly reduced.
The claims to contribution and indemnity pursuant to the Wrongs Act proceeded on the basis that it was one of several tortfeasors. A court would conventionally assess the impact of the relevant tortious breaches of duty. In this respect the Judge made that assessment including an assessment of the parties tortious conduct.
It has not been shown that the Judge had regard to any irrelevant matters or failed to have regard to relevant matters. No error has been identified in the approach of the trial Judge in determining the apportionment of liability. The Judge’s finding was within his discretion. The finding that liability should be apportioned 70% to Rivett and Arbor and 30% to WMC was open to the Judge. There is no basis to interfere with the apportionment determined by the Judge. The challenges to the apportionment should be rejected.
Costs
The Judge made a slip with respect to costs. It was agreed that in the event of the appeal being dismissed it was appropriate for this court to vary the costs order made by the Judge. The variation to be made is to order that the first defendant (Rivett) and the second defendant (Arbor) pay the third defendant’s (WMC) costs in relation to the quantum of the first plaintiff’s damages after 12 August 2005, these costs to be taxed as between solicitor and client.
Conclusion
These appeals should be dismissed. The parties should be heard as to any incidental orders.