SMYBB Pty Ltd v Young

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0103

SMYBB PTY LTD (T/AS BEST BOTTLERS PTY LTD)	Applicant
v
STEPHEN YOUNG	Respondent

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JUDGES:	BEACH, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2022
DATE OF JUDGMENT:	21 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 115
JUDGMENT APPEALED FROM:	[2021] VSC 445 (Forbes J)

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TORT – Negligence – Breach of statutory duty – Causation – Process worker sustained shoulder and elbow injury cutting plastic from pallet with blunt knife – Experienced worker aware of how and when to rotate and change knife blade – No evidence that worker unaware of risks of using blunt blade – Whether employer’s breach of common law or statutory duty caused injury – Claimant bears burden of proving causal connection between breach and damage – Employer’s failure to adopt training, instruction and blade storage measures identified by claimant at trial not causally linked to damage – New case advanced by claimant on appeal unsupported by evidence and inappropriate to consider – Appeal allowed.

Occupational Health and Safety Regulations 2007 rr 3.1.1, 3.1.2, 3.1.3.

Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125, Roads and Traffic Authority (NSW) v Royal (2008) 245 ALR 653, Coulton v Holcombe (1986) 162 CLR 1, followed; Deal v Kodakkathanath (2016) 258 CLR 281, discussed.

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Counsel
Applicant:		Mr P H Solomon QC with Mr S E Gladman
Respondent:		Mr C W R Harrison QC with Mr C S O’Sullivan
Solicitors
Applicant:	Hall & Wilcox
Respondent:	Maurice Blackburn Lawyers

BEACH JA
MCLEISH JA
KENNEDY JA:

The applicant is a wine-packaging company. It employed the respondent as a full-time process worker at its premises in Mildura where he worked with a machine that removed wine bottles from the pallets on which they were stored. His work duties included using a ‘duck knife’ to cut plastic straps and wrapping from the pallets of bottles before they were processed by the machine.[1] The applicant issued the respondent with a duck knife, which he stored in his locker between shifts.[2]
[1]Young v SMYBB Pty Ltd (t/as Best Bottlers Pty Ltd) [2021] VSC 445 [8]–[12] (‘Reasons’).
[2]Ibid [58].
Over time, the task of cutting the plastic straps and wrapping gradually blunted the cutting edge of the blade in the knife. Cutting the straps could also damage the blade by taking chunks out of it.[3] Each blade usually lasted between six and eight weeks.[4] When the cutting edge became blunt, the respondent would open the knife and rotate the blade to expose a new cutting edge. That could be done three times. On the next occasion, the respondent would have to ask his supervisor for a replacement blade.[5] The blades were stored in the supervisor’s office, which was a short distance away from the production area. The supervisor was usually able to provide the respondent with replacement blades on request, but on rare occasions was unable to locate one in the office.[6]
[3]Ibid [19], [33].
[4]Ibid [58].
[5]Ibid [19]–[20], [58].
[6]Ibid [60]–[62].
During his shift on 6 April 2016, the respondent noticed that the blade of his duck knife was not as sharp as it should have been. He gave evidence that, while the blade was still cutting, it was not ‘perfectly all right’.[7]
[7]Ibid [59].
On 7 April 2016, about four hours into his shift, the respondent suffered injuries to his right shoulder and elbow while using the duck knife to cut the plastic wrapping at the base of a pallet. By that time, the blade had become ‘very blunt’.[8] He said:
I was cutting around the bottom, and I pulled the duck knife, it wouldn’t cut, so I put more pressure on it, and as I did it, it let go, and next minute I just got this burning sensation up my arm.
[8]Ibid [59].
The respondent did not open the knife to inspect the condition of the blade immediately before or during his shift on 7 April 2016. Nor did he ask his supervisor to provide him with a replacement blade on either 6 or 7 April 2016.[9] He thought that he had last rotated the blade about a week before the incident.[10]
[9]Ibid [26], [59].
[10]Ibid [59].
The respondent ceased employment with the applicant shortly after the incident and has not worked since that time.[11] He underwent surgery to his right shoulder and elbow in June 2017 and August 2019, respectively.[12] The physical injuries gave rise to a secondary psychiatric injury.[13]
[11]Ibid [1].
[12]Ibid [3], [104], [108].
[13]Ibid [115].
The respondent commenced a proceeding by writ filed in the Trial Division on

31 October 2019. He claimed that the applicant was liable to pay damages in negligence and for breach of statutory duty in respect of work-related injuries to his right shoulder and right elbow which resulted from the incident on 7 April 2016, as well as the heavy and repetitive nature of his work duties over the course of his employment.
The respondent said that the applicant had not provided him with any training in how or when he should change the blade in the duck knife. The trial judge found that the respondent ‘knew and understood how to change the blade’ and that he had ‘learnt this, like the other tasks he had to undertake, by demonstration’.[14] The respondent said that the process of changing the blade was ‘pretty obvious’. He accepted that, if the blade was not as sharp as it should have been, the ‘proper’ and ‘obvious’ thing for him to do was to ask his supervisor for a new one.
[14]Ibid [64].

Regulations

The claim for breach of statutory duty was based on alleged breaches of regs 3.1.1, 3.1.2 and 3.1.3 of the Occupational Health and Safety Regulations 2007. They are relevantly in the following terms:
3.1.1    Hazard identification
(1)An employer must, so far as is reasonably practicable, identify any task undertaken, or to be undertaken, by an employee involving hazardous manual handling.
(2)An employer may carry out a hazard identification under subregulation (1) for a class of tasks rather than for individual tasks if—
(a)all the tasks in the class are similar; and
(b)the identification carried out for the class of tasks does not result in any person being subject to any greater, additional or different risk to health and safety than if the identification were carried out for each individual task.
3.1.2    Control of risk
(1)An employer must ensure that the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee is eliminated so far as is reasonably practicable.
(2)If it is not reasonably practicable to eliminate the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee, an employer must reduce that risk so far as is reasonably practicable by—
(a)altering—
(i)the workplace layout; or
(ii)the workplace environment, including heat, cold and vibration, where the task involving manual handling is undertaken; or
(iii)the systems of work used to undertake the task; or
(b)changing the objects used in the task involving manual handling; or
(c)using mechanical aids; or
(d)any combination of paragraphs (a) to (c).
(3)If it is not reasonably practicable for an employer to reduce the risk of a musculoskeletal disorder associated with a hazardous manual handling task in accordance with subregulation (2), the employer may control that risk by the use of information, instruction or training.
(4)Without affecting the generality of subregulations (1), (2) and (3), an employer, when determining any measure to control any risk of musculoskeletal disorder, must address the following factors—
(a)postures; and
(b)movements; and
(c)forces; and
(d)duration and frequency of the task; and
(e)environmental conditions including heat, cold and vibration that act directly on a person undertaking the task.
3.1.3    Review of risk control measures
(1)An employer must ensure that any measures implemented to control risks in relation to musculoskeletal disorders are reviewed and, if necessary, revised—
(a)before any alteration is made to objects used in a workplace or to systems of work that include a task involving hazardous manual handling, including a change in the place where that task is undertaken; or
(b)before an object is used for another purpose than that for which it was designed if that other purpose may result in an employee carrying out hazardous manual handling; or
(c)if new or additional information about hazardous manual handling being associated with a task becomes available to the employer; or
(d)if an occurrence of a musculoskeletal disorder in a workplace is reported by or on behalf of an employee; or
(e)after any incident occurs to which Part 5 of the Act applies that involves hazardous manual handling; or
(f)if, for any other reason, the risk control measures do not adequately control the risks; or
(g)after receiving a request from a health and safety representative.
…
Regulation 1.1.5 relevantly defines ‘hazardous manual handling’ as follows:
(a) manual handling having any of the following characteristics—
(i)repetitive or sustained application of force;
(ii)repetitive or sustained awkward posture;
(iii)repetitive or sustained movement;
(iv)application of high force being an activity involving a single or repetitive use of force that it would be reasonable to expect that a person in the workforce may have difficulty undertaking;

Issues and findings at trial

It was ultimately not in dispute that the work performed by the respondent in the present case constituted hazardous manual handling within the meaning of reg 1.1.5. It was also not in dispute that the respondent had suffered injury in the incident on 7 April 2016, and that the injury he suffered satisfied the definition of ‘musculoskeletal disorder’, also found in the regulations.
However, the applicant denied that it was liable to the respondent in respect of that injury either in negligence or for breach of statutory duty. If there was any such liability, the applicant alleged that there was contributory negligence on the respondent’s part.
Three witnesses gave oral evidence at the trial: the respondent and two line supervisors formerly employed by the applicant. Each party tendered various expert medical and vocational assessment reports, which are not relevant to the proposed appeal.
In closing address, counsel for the respondent submitted that the applicant should have implemented three measures in response to the risk of injury. He submitted that the applicant should have made a supply of blades available in the production area; that the applicant should have provided the respondent with specific training in what to do when the blades were becoming blunt; and that the applicant should have instructed him to change the blades on a fixed weekly or fortnightly basis.
In the hearing in this Court, argument was confined to training about what to do when the blades became blunt, as explained further below.
On 30 July 2021, the trial judge delivered reasons for judgment. In summary, her Honour concluded that:
(a)the injuries to the respondent’s right shoulder and elbow were caused by the incident on 7 April 2016, but were not caused by the nature of his work duties over the course of his employment (the latter finding is not challenged);[15]
(b)the respondent’s claim in negligence was not made out because the applicant’s system for the provision of replacement blades was ‘reasonably safe’ and the system was working as it was intended to work on the date of the incident (the respondent contends that negligence was made out, albeit on a different basis);[16]
(c)the respondent’s claim for breach of statutory duty was made out because the applicant had breached regs 3.1.1, 3.1.2 and 3.1.3 and the injury suffered by the respondent was a ‘musculoskeletal disorder’ that was caused by the intrinsic risks of the ‘hazardous manual handling’ task in which he was engaged at the time of the incident (the applicant challenges the findings of breach and causation);[17]
(d)the respondent was not guilty of contributory negligence because ‘he described no particular difficulty cutting on 6 or 7 April 2016 prior to the incident’ and ‘he was acting in accordance with the system of work’ prescribed by the applicant at the time of the incident (the parties made brief submissions before us about contributory negligence, but the respondent accepts that the first of these findings was not supported by the evidence);[18] and
(e)the respondent’s damages should be assessed in the total amount of $635,000, comprising pain and suffering damages of $180,000 and pecuniary loss damages of $455,000, excluding various sums (there is no issue before us about quantum).[19]
[15]Ibid [5], [49].
[16]Ibid [5], [58]–[66].
[17]Ibid [5], [98]–[99].
[18]Ibid [59], [67].
[19]Ibid [6], [116], [122]–[123].

Proposed grounds of appeal and notice of contention

Since several of the proposed grounds of appeal are not contested, it is convenient to set out and address each of them in order.
First, the trial judge stated at [88] of her reasons:

Where a personal right to damages for injury for breach of a regulation exists, as here, damages are recoverable if breach of the relevant regulation [is] demonstrated and the injury that occurs is one within the definition of a musculoskeletal disorder. In a claim of this nature, it is not a necessary element of the cause of action that a plaintiff also demonstrate that, had the employer complied with its obligation, some other system of work or equipment would have been identified and the risk of injury lessened.

The first proposed ground of appeal is in the following terms:
The trial judge erred in holding at [88] of the reasons that, in an action for breach of a statutory duty imposed on the defendant by reg 3.1.1, 3.1.2 or 3.1.3 of the Occupational Health and Safety Regulations 2007, the plaintiff would be entitled to recover damages upon proving that the defendant breached its statutory duty and that the injury suffered by the plaintiff satisfied the definition of ‘musculoskeletal disorder’.
The respondent accepts that the judge was in error in this respect. He accepts that it is necessary for him to establish that the breach of statutory duty upon which he relies caused the injury, and that this is not demonstrated by identifying a breach of the regulations and satisfying the definition of ‘musculoskeletal disorder’, without more. As explained briefly below, this concession was properly made and this ground should be upheld. The question of causation arises in the context of other grounds of appeal and the notice of contention referred to below.
Secondly, in a related passage at [97]-[99] of the reasons, the judge said:
Causation requires a causal link between the type of injury sustained and the nature of the task being undertaken at the time of injury. A plaintiff must demonstrate that both meet the statutory definition.
The question is whether the type of injury to the plaintiff was one of a musculoskeletal disorder and was one caused by, as in ‘associated with’, hazardous manual handling as defined. That is, has the injury been caused by the intrinsic risks of the manual handling task. It is clear that the injury occurred because of the application of force to the cutting action as it was performed on 7 April 2016. Although the Regulations are directed at characteristics of force, or repetition or stability in manual handling, a musculoskeletal disorder as defined covers both injury occurring suddenly and over a period of time. My finding that injury occurred when undertaking the task on 7 April 2016, and not over the course of employment, does not prevent the injury from being a musculoskeletal disorder within the definition.
The plaintiff has made out his entitlement to damages for breach of statutory duty.
Proposed ground 2 reads as follows:
The trial judge erred in holding at [97]–[98] of the reasons that, in an action for breach of a statutory duty imposed on the defendant by reg 3.1.1, 3.1.2 or 3.1.3 of the Occupational Health and Safety Regulations 2007:
(a) causation required a causal link between the type of injury sustained and the nature of the task being undertaken at the time of injury; and
(b) the question was whether the type of injury suffered by the plaintiff was a ‘musculoskeletal disorder’ that was caused by, as in ‘associated with’, a task involving ‘hazardous manual handling’.
The respondent contests this ground, on the basis that [97]–[98] of the judge’s reasons do not have the meaning attributed to them by the applicant. As will be seen, little turns on this proposed ground.
The third proposed ground lies closer to the heart of the case. It is in the following terms:
The trial judge erred in finding at [81]–[82] and [97]–[99] of the reasons that there was a breach by the applicant of reg 3.1.1, 3.1.2 or 3.1.3 of the Occupational Health and Safety Regulations 2007 that was a cause of the injury suffered by the respondent in the incident.
The respondent contends that the judge’s conclusion that there was a breach of regs 3.1.1 and 3.1.2 which caused the loss he suffered in the incident was correct, but on the basis of an argument made by a notice of contention, rather than the reasoning of the judge. The respondent accepts that there was insufficient evidence to justify a finding of breach of reg 3.1.3, and that matter is not pursued.
The fourth proposed ground of appeal reads as follows:
The trial judge:
(a) erred in finding at [49] and [67] of the reasons that the blade of the duck knife was not causing the respondent any particular difficulty prior to the incident;
(b) should have found that the blade of the duck knife was causing the respondent some difficulty prior to the incident; and
(c) in all the circumstances of the case, should have found that there was contributory negligence on the part of the respondent.
The respondent accepts that the judge made the error alleged in paragraph (a) of this ground and should have made the finding in paragraph (b). These issues arise in relation to the question of causation, and, if it becomes necessary to decide, the issue of contributory negligence which is the subject of paragraph (c).
By his notice of contention, the respondent submits that he ought to have succeeded in his negligence claim, and in his claim for breach of statutory duty on a different basis. The single ground of the notice of contention is as follows:
The trial judge erred by failing to find that the applicant was negligent because the system of work was unsafe and, (in that regard), did not comply with the Occupational Health and Safety Regulations 2007. Her Honour further erred by failing to find that a system in which workers, such as the respondent, had immediate access to replacement blades and were trained to rotate or replace blades, so soon as they became blunt, would have avoided the respondent’s injury.
In his written case in support of his notice of contention, the respondent contends that the judge:
(a) erred by finding that the system was ‘reasonably safe’;
(b) erred by failing to find that a system where replacement blades were readily available to workers such as the respondent and in which workers were trained to rotate or replace blades, as appropriate, so soon as they became blunt, would have avoided the respondent’s injury;
(c) consequently erred in dismissing the respondent’s claim in negligence;
(d) correctly found that the applicant was in breach of the Regulations;
(e) erred in her conclusions on causation based on the breach of Regulations;
(f) should have found causation for the purposes of the Regulations, based on the analysis in (b) above; and
(g) correctly found for the respondent.

As we shortly explain, the notice of contention and especially paragraph (b) of this submission was modified in the course of argument.

Proposed grounds 1 and 2

To the extent that the parties are in agreement that the judge was in error in finding that causation was established on the basis that the regulations had been breached and the injury that occurred satisfied the definition of a ‘musculoskeletal disorder’, we respectfully agree. The plaintiff in a breach of statutory duty claim has the burden of proving the causal connection between the breach and the damage in question.[20] As explained further below, nothing in the regulations here in issue alters that position. In the circumstances, it is unnecessary to say anything more about the first ground of appeal.
[20]Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125, 138 (Gibbs J); Roads and Traffic Authority (NSW) v Royal (2008) 245 ALR 653, 689 [143] (Kiefel J).
In so far as the second proposed ground asserts that the judge treated causation as being established if a musculoskeletal disorder was ‘associated with’ hazardous material handling, as defined, we accept that such an approach would also have been in error. The decision of the High Court in Deal v Kodakkathanath (‘Deal’),[21] to which the judge referred, concerned the question of breach of the regulations now in issue, and in particular the meaning of ‘associated with’ in reg 3.1.2. The Court read that phrase narrowly so as to import a causal requirement. In other words, the Court held that the regulations themselves incorporated the need to establish causation. It did not hold that causation in an action for breach of the regulations was established by identifying an ‘association’ between the breach and the injury. Moreover, nothing in Deal supports the proposition that, when considering the issue of causation in relation to a claim for breach of the regulations, anything other than the usual principles of causation is to be applied. That said, it is not necessary to decide whether the judge erred in this respect, given that, on any view, this Court is now required to address the question of causation.
[21](2016) 258 CLR 281; see at 296–7 [39], [41] (French CJ, Kiefel, Bell and Nettle JJ).

Breach and causation — proposed ground 3 and notice of contention

The trial judge found that the applicant had breached reg 3.1.1 by failing to identify that the use of a duck knife to cut plastic wrapping from a pallet involved ‘hazardous material handling’.[22] The applicant accepts that finding, but contends that nothing flows from it unless a breach of reg 3.1.2 is also identified. That requires a failure to eliminate or reduce the risk of a musculoskeletal disorder associated with a hazardous manual handling task. The applicant submits that the risk was obvious to an experienced worker such as the respondent, such that there was no need for a specific instruction.[23]
[22]Reasons [81]–[82].
[23]McLean’s Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3, 8 (Gibbs CJ).
The applicant further submits that the judge did not clearly explain how reg 3.1.2 was breached, or specifically address two of the three measures the respondent said it should have implemented, namely training in what to do when a blade became blunt, and an instruction to change the blades on a fixed weekly or fortnightly basis. The applicant submits that the judge rejected the third suggested measure, namely making a supply of blades available in the production area.
It is not necessary to enter further into the question of breach, for two reasons. First, the respondent refined his case before us to advance a different measure which he says the applicant ought to have taken to satisfy reg 3.1.2 (and to comply with its duty of care at common law). Secondly, the applicant submits that, even if failure to adopt any of the measures identified above constituted a breach of reg 3.1.2, other findings of the judge showed that the respondent had not established a causal link between any such breach and his injury.
It is convenient to deal with the latter point first. The applicant’s argument must be accepted. First, as to training the respondent in what to do if a blade became blunt, the judge found that the respondent ‘knew and understood how to change the blade’ of the knife, and that he had learnt this ‘by demonstration’.[24] That finding shows that the suggested training in what to do if a blade became blunt would not have made any difference. The respondent already knew what to do.
[24]Reasons [64].
Secondly, as to the measure of instructing the respondent to change the blades on a weekly or fortnightly basis, the judge found that the respondent had not shown that an instruction of that kind would have removed or lessened the risk of injury.[25] That was in part because a blade could become unsuitable, not only by blunting over time, but also by chunks being broken from it, and the respondent had in any case ‘flipped’ his blade the week before the injury.
[25]Ibid [66].
Thirdly, as to the measure of making blades available in the production area, the judge found that the evidence did not go so far as to show that a new blade, rather than a rotation (or ‘flip’), was needed when the injury occurred.[26] The location of new blades was irrelevant if the existing blade only needed to be rotated.
[26]Ibid [56]; see also [63].
For these reasons, the case put by the respondent at trial, in the terms we have identified, ought to have failed. Without expressly conceding as much, the respondent sought before us, as noted earlier, to put his claim on a different footing, both in negligence and for breach of statutory duty.
In that regard, senior counsel for the respondent submitted that the applicant ought to have not only trained or instructed the respondent to rotate or replace blades, as appropriate, as soon as they became blunt, but to have specifically alerted him to the fact that failure to do so could lead to personal injury. It was submitted that the judge’s finding that the respondent knew how to change the blade when it became blunt did not go so far as to say that he knew that there was a risk of injury if he did not do so.
The respondent submitted that the applicant had effectively and impermissibly delegated to the respondent the creation of a safe system of addressing the risk of injury through the use of a blunt knife. He relied on the following passage in the joint judgment in Deal:
[W]here a task is capable of being carried out in more than one way, as it was in this case, it is the employer’s responsibility so far as is reasonably practicable to identify the risks potentially associated with each way and, so far as is reasonably practicable, to guard against those risks by implementing systems calculated to constrain the employee to carrying out the task in the safest way. Accordingly, it would be contrary to principle and illogical to suppose that, simply because there were a number of possible ways in which the appellant could have carried out the task of removing the displays with the use of the step ladder, it was not reasonably practicable for the respondent to identify the risks associated with the majority if not all of those possible ways. An employer cannot escape responsibility by identifying that there is one or even a number of ways of carrying out a task which do not attract such risks and assuming, without ensuring so far as is reasonably practicable, that the task will be carried out in those ways. Unless and until the employer has done what is reasonably practicable to prevent the employee performing the task other than in the safest way, the employer will be potentially liable for breach of regs 3.1.1 and 3.1.2.[27]
[27]Deal (2016) 258 CLR 281, 301–2 [53] (French CJ, Kiefel, Bell and Nettle JJ) (citation omitted).
The applicant submitted in reply that a case that depended on a failure specifically to alert the respondent to the risk of injury by using a blunt knife had not been pleaded and could not now be advanced by way of appeal.
In our view, the applicant’s submission should be accepted. The case now sought to be put is not to be found in the respondent’s particulars of negligence. The only reference in those particulars to a failure to provide training concerns training in relation to safe techniques for manually handling and moving large and heavy items. Plainly, that particular is quite different, and is addressed to the ‘course of employment’ case which was rejected at trial.
As to the conduct of the trial, the respondent relied on the closing address on his behalf:
And one of the alternatives is that these workers, including the plaintiff, be trained in exactly this, what to do if the blades are becoming blunt. There’s no evidence anywhere in this case that when this man started work, or at any time along the way he was given any training, instruction, advice, demonstration about, you know, if you’re cutting and it’s starting to catch and it’s getting a bit hard for you, this is what you should do. These workers are left completely to their own devices, in our submission. It might be very easy to say, ‘oh, well, it’s common sense, you’re a worker, you’ve worked there for years, you ought to know’. That’s not an employer complying with its obligations to provide a safe system of work in our submission. These workers should be trained about, ‘this is how you use the duck knife, if you’re having any problems, this is what you should do about it. Don’t keep working with one, if it’s getting a bit blunt, come and get a new one’. And there’s just no evidence about that at all in this case, they are left, in our submission, completely to their own devices.
This submission, again, says nothing about an instruction or warning about the risk of injury through using a blunt knife. In our opinion, it is clear that no such case was run.
The respondent submits that the case proceeded on the readily accepted assumption that the use of a blunt blade had the potential to cause musculoskeletal injury. The judge said as much, it was submitted, when she affirmed that the risk of such injury was foreseeable and the parties had assumed as much.[28] But even accepting that to be so, it does not take the respondent far enough. An assumption about foreseeability of the risk does not say anything about the basis on which the respondent ran his case on breach and causation.
[28]Reasons [53].
More fundamentally, the identified assumption cannot be taken to extend to the state of mind of the respondent. There is no evidence that the respondent was unaware of the risk of injury if he continued using a blunt knife.[29] As a result, it cannot be established that a failure to warn the respondent of such a risk contributed to the injury that he sustained. The absence of evidence to that effect is consistent with our conclusion that this case was not run at trial. It also points to the fact that it is a case which could have been the subject of evidence at trial if it had been raised, and which therefore should not be permitted to be run, for the first time, on appeal.[30]
[29]On the question of contributory negligence, the applicant invited us to infer that, to the contrary, the respondent was aware of the risk of physical injury. We need not decide whether that inference is appropriate or open.
[30]Coulton v Holcombe (1986) 162 CLR 1, 7–8 (Gibbs CJ, Wilson, Brennan and Dawson JJ).
It follows that, even if the respondent’s argument based on the extract from Deal set out above were to be permitted, it would at best establish breach of reg 3.1.2 (and perhaps of the common law duty of care). It would not remedy the lack of any evidence supporting a finding of causation in such a case.

Conclusion

In the circumstances, no issue of contributory negligence arises and proposed ground 4 can be left to one side.
Leave should be granted and the appeal allowed. The orders of the trial judge should be set aside and in their place it should be ordered that there be judgment for the defendant. We shall hear the parties on the question of the costs of the trial and the appeal.
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[2022] VSCA 115

21 June 2022