South 32 Ltd v Allfab Constructions Pty Ltd

1. [1]

   LEEMING JA: This appeal turns on its own facts. It arises out of a workplace injury. The appellant occupiers accepted they were liable to the plaintiff prior to the commencement of the hearing. The appellants’ claim for statutory contribution against a maintenance contractor (Allfab Constructions Pty Ltd) was the only aspect of the proceedings which went to trial.

2. [2]

   The main point in the appeal is whether the primary judge failed to determine the “principal case” put forward by the appellants. Consequently, in what follows, it will not be necessary to summarise all of the evidence adduced during a six day hearing, but it will be necessary to address in some detail the issues formulated at first instance and the way in which the trial was conducted.

Background

1. [3]

   On 2 June 2015, Mr Leslie Corbett was injured in a workplace accident in the West Cliff coal preparation plant operated by the appellants. He was present when the hatch to the sump of a tank known as Tank 3-20C was opened, in the course of regular quarterly cleaning and maintenance. The tank should have been empty. In fact, it contained some 29,000 litres of slurry (water and magnetite). The picture below shows the hatch to the sump of the tank and the dump valve. The circular hatch is attached to the sump by two hinges and around 20 bolts around its perimeter; the dump valve is to the right.

2. [4]

   Mr Corbett’s injuries were principally psychiatric, although he also suffered some physical injury. Mr Corbett sued four defendants: the three appellants and the respondent, Allfab Constructions Pty Ltd. It was common ground both at trial and on appeal that the three appellants together conducted the business of the West Cliff Colliery and could be treated collectively for all purposes. I shall proceed accordingly and call them “West Cliff”. Allfab was a contractor retained by West Cliff to provide maintenance services.

3. [5]

   Shortly before the commencement of the trial, West Cliff consented to judgment in favour of Mr Corbett in the sum of $420,000 plus costs. The hearing thereafter proceeded over some six days on West Cliff’s cross-claims for statutory contribution against Allfab pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

4. [6]

   The primary judge dismissed West Cliff’s cross-claims, in a reserved judgment: Leslie Corbett v South 32 Limited (No 2) [2018] NSWDC 232. His Honour proceeded on the basis that, in order to succeed, it was necessary for West Cliff to establish that Mr Corbett would have succeeded in his action against Allfab. The primary judge found that Mr Corbett would have failed to establish breach. His Honour was not satisfied that a reasonable person in Allfab’s position would have acted differently and taken additional precautions to those taken by Allfab, or that Allfab’s employee Mr Chappell ought to have known of any risk that required those precautions to be taken: at [80]. His Honour went on to find that had Allfab taken the precaution of opening the dump valve, that would have probably revealed the existence of the full tank, such that its failure to do so was a necessary condition of the harm suffered by Mr Corbett. The primary judge addressed apportionment notionally, on the hypothesis that he might be wrong in relation to liability, and concluded that had he found Allfab liable, he would have regarded the appropriate level of contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) as 15%: at [97].

5. [7]

   Significantly, Mr Corbett was not an employee of either West Cliff or Allfab. He was employed by a company known as Turbo-Vac Australia Pty Ltd, which had been engaged by West Cliff to provide a “confined space watcher” at the washery. He joined employees of Allfab for the purpose of maintenance of the sump. Turbo-Vac Australia was not joined to the litigation, and thus neither the nature of the duty owed by employer to employee, nor the complexities introduced by s 151Z of the Workers Compensation Act 1987 (NSW), intrude into this litigation. It was and is common ground that Part 1A of the Civil Liability Act 2002 (NSW), including ss 5B and 5D, applied to West Cliff’s proceedings for statutory contribution, and the primary judge proceeded accordingly.

Structure of this judgment

1. [8]

   The main issue on the appeal is a complaint that the primary judge failed to determine West Cliff’s case. West Cliff commenced its written submissions in support of its appeal with the complaint that:

2. [9]

   I have found it convenient first to address West Cliff’s main complaint on appeal, in light of which the summary of the trial and the reasons of the primary judge may be considered. I do that immediately below.

3. [10]

   West Cliff also challenged, by ground 2 of its appeal, the (notional) apportionment of responsibility between it and Allfab in the event that the latter was found liable. West Cliff made two additional submissions which arguably fall outside its notice of appeal. First, West Cliff submitted that the primary judge failed to determine the relevant duty of care owed by Allfab to Mr Corbett. Secondly, West Cliff submitted on appeal, as it had done at trial, that Allfab was required to “positively isolate stored energy” in accordance with its own Safe Work Method Statement. Allfab, by a notice of contention sought to uphold the judgment in its favour on the basis of causation. All of these matters may be dealt with relatively concisely.

West Cliff’s main submission on appeal

1. [11]

   Ground 1 of the appeal challenged the finding that Allfab was not liable. It identified three errors, all of which were directed to the finding of breach:

2. [12]

   That formulation is, with respect, more general than is ideal. However, West Cliff’s written and oral submissions made it clear that its main complaint was that the primary judge had failed to determine the “principal case” propounded by it in respect of breach.

3. [13]

   After its initial written submissions mentioned above, West Cliff continued:

4. [14]

   The references to pages in the black book were to the transcript of the trial. The first was an exchange between the primary judge and counsel for Allfab who accepted that his case was that, prior to the hatch being opened, the group of men were told to move back. Counsel for West Cliff agreed that that was his case, too. The second reference was during the course of West Cliff’s final submissions on the afternoon of 26 March (the third last day of the trial). The reference was to evidence from Mr Chappell, to the effect that not only did he warn Mr Corbett to get out of the way, but also that he “recognised that he was still in the line of fire” and continued to open the hatch.

5. [15]

   The clearest passage is the third, on the morning of the final day of the hearing:

6. [16]

   The following six references are to statements made by the primary judge during the course of West Cliff’s submissions.

7. [17]

   The final, tenth reference is to an exchange with counsel for Allfab, who was asked:

8. [18]

   After counsel for Allfab began a response, the primary judge added:

9. [19]

   The references support the proposition that West Cliff’s case extended to the claim that Mr Chappell should have made sure Mr Corbett had moved away before the hatch was opened. However, they fall well short of establishing that that was West Cliff’s “primary case”. Nonetheless, it was West Cliff’s submission that despite having put its case to the primary judge, and despite the primary judge having clearly engaged with those submissions during the hearing, the primary judge had failed to identify the “principal” way in which the case had been put. West Cliff said that:

10. [20]

    West Cliff further submitted that:

11. [21]

    During oral submissions in this Court, counsel for West Cliff, Mr Watson SC, who also appeared at trial, referred to where the primary judge had dealt with the specific precautions and then added:

12. [22]

    Further, once again after dealing with what the primary judge had said as to precautions, Mr Watson said:

13. [23]

    It will be seen that the approach adopted by West Cliff on appeal, insofar as it fell within its main challenge, was a narrow one. It was that the primary judge had failed to identify what it said was the “principal” way in which the case had been put. West Cliff maintained that its case in relation to breach was not about Allfab’s failure to take the precautions which the primary judge had addressed in detail. Rather it was a complaint that immediately before opening the hatch, Mr Chappell had told the men with him including Mr Corbett to get “out of the line of fire” but had proceeded to open the hatch while Mr Corbett remained standing where he had been.

14. [24]

    West Cliff’s case on appeal turns upon the testimonial evidence of Mr Chappell, who was the Allfab employee who had actually opened the hatch on the sump on 2 June 2015 (Mr Corbett had not remembered being told to get out of the line of fire). Thus it will be necessary to deal with Mr Chappell’s evidence, and in particular what was conveyed by his evocative expression “line of fire” – in some detail.

15. [25]

    Mr Chappell had been employed as a fitter for many years, and described in some detail the way in which he came to approach Tank 3-20C.

16. [26]

    In cross-examination, Mr Chappell was taken to his direction to the other men, including Mr Corbett, to get out of the “line of fire”, as follows:

17. [27]

    Mr Watson contended that the acceptance in cross-examination of the need for Mr Corbett to get out of the line of fire before the last bolt was removed from the hatch, and his failure to pause until Mr Corbett had moved, reflected the case which the primary judge simply failed to address.

Two further aspects of West Cliff’s appeal as to the liability of Allfab

1. [28]

   West Cliff made two further submissions, arguably outside the scope of its notice of appeal. The first was based on the failure to identify the existence and content of a duty of care owed by Allfab to Mr Corbett. The second was based on Allfab’s failure to comply with its Safe Work Method Statement.

2. [29]

   West Cliff submitted in writing that:

3. [30]

   In oral argument, West Cliff submitted that:

4. [31]

   Secondly, a matter at the forefront of West Cliff’s submissions at trial and on appeal was a “Safe Work Method Statement” prepared by Allfab in relation to the particular job that day in the coal preparation plant. It appeared to apply to all aspects of the tasks for which Allfab had contracted. It was divided chronologically into a series of steps.

5. [32]

   The first and second “Job Steps” were “Access Site” and “Pedestrian/vehicle/mobile plant interactions”. The fourth Job Step was “Remove Hatch for entry”. Attention on appeal was focussed on the third step, “Check isolation requirements”. The hazard identified was “Stored energy”. There seems to have been no clear evidence about what “Stored energy” referred to, when the matter was raised by this Court, but certainly it is capable of referring to the energy of pressurised gas or liquid in the confined space which could emerge with force when the hatch was opened. The document assessed the risk as “4”, which corresponds to “significant”. The document identified three steps under the heading “Hazard Control & Work Method”:

6. [33]

   Mr Chappell, on cross-examination, was asked repeatedly to identify what steps he had taken, in accordance with the Safe Work Method Statement to “positively isolate stored energy”.

7. [34]

   West Cliff submitted on appeal, as it had done at trial, that Allfab had an obligation to “positively isolate stored energy” in accordance with its Safe Work Method Statement and that that obligation had not been complied with.

The findings of the primary judge on breach

1. [35]

   The onus rested on West Cliff to make out the elements of Allfab’s tortious liability to Mr Corbett. The primary judge found, dispositively, at [80]-[81], that he had:

2. [36]

   Those findings bore a twofold character. First, they reflected an acceptance of the (unchallenged) evidence as to the positive steps taken by Allfab before opening the hatch. Secondly, they reflected a rejection of the particular further precautions which West Cliff alleged a reasonable person in the position of an Allfab employee would have undertaken. Each aspect is elaborated below.

3. [37]

   No complaint was made of the findings of the primary judge at [17]-[18] and [20] which summarised the procedures in place:

4. [38]

   The references to the “Group Isolation Board” and the individual men’s locks are to an isolation system, intended to prevent access to pieces of equipment. In addition, before opening the sump, Allfab was required to obtain a document signed on behalf of West Cliff that the system had been isolated, and to obtain oral confirmation of the same. The details do not much matter. It was said by way of summary and without objection by Mr Cavanagh SC, who appeared in this Court but not at trial, that:

5. [39]

   How it came about that West Cliff’s systems had failed, so as to leave a supposedly isolated sump still containing thousands of litres of slurry, was unexplained. The primary judge noted at [19] that West Cliff did not call evidence to minimise or explain its negligence, or clarify how the tank came to be full of a magnetite solution and yet be listed in the Lockbox as having been isolated.

6. [40]

   The primary judge identified at [55] that when the Allfab employees went into the premises after applying their personal isolation lock to the Lockbox, they were required to:

7. [41]

   It will be seen that that procedure included sighting signed documentation made by the “Isolation Supervisor” and one or more “Verifying Person(s)” that the isolation had taken place. The primary judge found, at [56], that:

8. [42]

   No complaint was made about that finding.

9. [43]

   His Honour then turned to “[t]he matters which West Cliff alleged Allfab were required and failed to do”: at [57]. The primary judge addressed, at some considerable length, four specific precautions which, according to the case run by West Cliff at trial, a reasonable person in Allfab’s position would have undertaken. It will be recalled that West Cliff was critical of his Honour having done so. The structure of this part of the judgment is as follows.

   1. (1)

      At [58]–[64], his Honour addressed the possibility that the dump valve should have been opened, noting inter alia that (a) there was no evidence that this was part of any written procedure, (b) there was evidence that once the tank had been isolated, any opening of valves should already have been done, (c) doing so would, if the tank were full, have released a large volume of material into the area surrounding the tank. His Honour concluded that a reasonable person would not have opened the dump valve.

   2. (2)

      At [65]–[68], his Honour addressed whether someone should have looked through the inspection hole. His Honour accepted evidence that no one on the part of Allfab knew that there was an inspection hole, and noted that there was no evidence that looking through it would have discerned any useful information about the emptiness or otherwise of the tank.

   3. (3)

      At [69]–[71], his Honour addressed the possibility that someone might contact the control room operator, and concluded that it was not reasonable to do so, in the absence of any evidence and in light of the positive steps which had been taken.

   4. (4)

      At [72]–[73], his Honour addressed the submission that Allfab should have “ceased work”, but noted that this was contrary to Allfab’s obligations efficiently to perform the contract.

10. [44]

    No complaint was made on appeal in respect of the rejection by the primary judge of West Cliff’s case insofar as it was based on the failure to take any of those four precautions, except for the general point that that was not the way, or at least not the principal way, in which West Cliff had advanced its case.

11. [45]

    As outlined above, Allfab’s Safe Work Method Statement required its employees to undertake three steps before starting work: (1) confirm with the Isolating Coordinator that there is no stored energy in the system; (2) attach personal red locks to isolator/GIB before starting work and (3) positively isolate stored energy.

12. [46]

    There is no difficulty in understanding the first two of those steps. Responsibility for isolating the system before maintenance work was carried out lay with West Cliff, it was a requirement that Allfab obtain such confirmation, and Allfab did so. Likewise, it was a requirement that personal red locks be applied to the General Indicator Board before starting work, and once again, Allfab did so. In any event, the primary judge noted at [75] that West Cliff made no complaint in relation to the first and second items.

13. [47]

    The third item is problematic. If West Cliff had complied with its obligations, there would be no stored energy. If the confirmation given by the Isolating Coordinator was correct, then once again there would be no stored energy. How then was anyone at Allfab to “positively isolate stored energy”? When this was raised during the appeal, West Cliff responded that the document contemplated a “hierarchy of responsibility”, whereby although primary responsibility for isolating the system lay with West Cliff, Allfab nonetheless had to do something more by way of a “double check”.

14. [48]

    The primary judge referred to the difficulties with the third item at [76]:

West Cliff’s “Issues on Cross-claim” document

1. [49]

   The evidence of Mr Chappell was given in mid-March. When the trial resumed on Monday 26 March, West Cliff handed up a schedule of what it apprehended to be the real issues in the case. On the following day, senior counsel resupplied the document with some “very unimportant inconsequential changes”. He confirmed that “[paragraph] three sets out the general and [paragraph] four sets out the particular”. That course was sensible, not least because the cross-claims themselves picked up the particulars of negligence in Mr Corbett’s statement of claim and the primary judge was entitled to be guided by the issues as formulated by West Cliff.

2. [50]

   In that document, West Cliff identified the following issues “as identified by the West Cliff Colliery parties” as to existence, content and breach of duty:

3. [51]

   It is convenient to make the following points about that document.

   1. (1)

      First, it will be seen that the four points identified “specifically” in paragraph 4 correspond with the four matters considered between [58] and [73] by the primary judge.

   2. (2)

      Secondly, the four points in paragraph 4 were expressed to be specific matters which correspond to the more general statements in paragraph 3. The first and third matters in paragraph 3 “apply its own Safe Work Method Statement” and “positively isolate stored energy” do not correspond to particular precautions which could have been taken in the actual conditions in the coal preparation plant on 2 June 2015. The second matter “check specifically on the condition of the tank with the isolation coordinator” does amount to a specific step which could be undertaken, and it was in fact undertaken.

   3. (3)

      Thirdly, the seven matters (three general, four specific) listed in paragraphs 3 and 4 under the heading “The Existence and Content of a Duty of Care”) were repeated as paragraphs 5(a)-(g) under the heading “Breach of Duty”.

   4. (4)

      Fourthly, there were included two further allegations of breach, in paragraph 5(h) and (i). Of these, the second, based on loosening the bolts and slowly opening the hatch, was based on the evidence to the effect that there was normally a small amount (up to around 10 litres) of slurry remaining in the hatch. The primary judge addressed this at [53]:

   5. (5)

      West Cliff made no complaint with that aspect of his Honour’s judgment. The focus of West Cliff’s submissions on appeal was the breach of duty identified in paragraph 5(h), to which it will be necessary to return.

   6. (6)

      Fifthly, paragraph 6 may be passed over, as no complaint was made in this Court as to the finding by the primary judge (at [25]) that no such pole had been used to open the tank.

   7. (7)

      Finally, there was no suggestion, nor could there be, that this document had somehow been superseded as the trial moved forward. It was supplied in draft towards the end of the trial, when evidence ended and submissions commenced, and then resupplied in a slightly revised form during West Cliff’s final address on the second last day of the trial.

4. [52]

   Notwithstanding the length of the trial, West Cliff did not rely on any written submissions. Allfab supplied 35 pages of written submissions. West Cliff’s oral submissions, and the questions asked by the primary judge, were closely tied to the “Issues on Cross-claim” document. Examples of oral submissions made by reference to paragraphs in that document may be seen at Black 198.50-199.13; 199.29-33; 199.39-200.3; 224.44-50.

Consideration of ground 1 of the appeal

1. [53]

   I do not accept that the primary judge failed to deal with the way in which West Cliff advanced its case. Indeed, looking at the course of the trial as best as may be done, I cannot accept aspects of how West Cliff described its case at trial before this Court.

2. [54]

   First, there can be no sound criticism of the primary judge dealing with the precautions which West Cliff alleged Allfab should have undertaken.

3. [55]

   The pleadings particularise precautions which West Cliff alleged Allfab should have undertaken. West Cliff’s “Issues on Cross-claim” document, supplied on the third last and second last days of the trial, likewise particularises precautions which West Cliff alleged Allfab should have undertaken. These were the principal cases advanced in documents, the sole purpose of which was to identify issues and shape the trial. Importantly, they formed the basis of Mr Chappell’s cross-examination. For example:

   1. (1)

      Mr Chappell was asked, and denied, that he would use a “crack the hatch” method as a way of checking for stored energy in a vessel such as this tank;

   2. (2)

      Mr Chappell was asked, but denied, knowing there was an inspection hole when it was put to him that “you could look into an inspection hole down into the tank”;

   3. (3)

      Mr Chappell was asked, but denied, that it would have assisted if “you could have gone to the dump valve and opened it”.

4. [56]

   It is wrong to say that the precautions taken by Allfab might be relevant to apportionment but had “nothing to do with the duty owed by Allfab to Mr Corbett or the breach of that duty”. It is wrong to say that the failure to take those precautions “was not the way in which West Cliff put its case”. This was at the forefront of West Cliff’s case, and was never resiled from. West Cliff’s written submissions to the contrary, reproduced at [20] above, are factually incorrect. It will be seen that the primary judge attended to each of the allegations advanced by reference to the document originally supplied by counsel appearing for West Cliff on the third last day of the trial, and revised with minor modifications on the second last day of the trial, during that counsel’s address.

5. [57]

   Secondly, I would not accept that the claim that Mr Chappell should have waited until Mr Corbett moved out of the way was the “principal case” run at trial.

6. [58]

   Thirdly, it is not correct that the primary judge failed to address the case advanced orally that Allfab’s employee Mr Chappell should have waited until Mr Corbett had actually moved out of “the line of fire”. The primary judge did attend to this aspect of the case, at [33]–[35]:

7. [59]

   Those paragraphs, and in particular the reference to West Cliff eschewing the submission, was a reference to the very last substantive exchange between the primary judge and counsel for West Cliff at the conclusion of the trial:

8. [60]

   I have reproduced the whole of the exchange in the interests of completeness, notwithstanding that it appears that the first two sentences of Mr Watson’s response were an answer to his Honour’s question, after which (commencing with “Also”) counsel moved on to a different topic.

9. [61]

   It is plain that the primary judge regarded counsel’s response as a disavowal of a complaint that Mr Chappell realised that there was a risk of the tank being full. The disavowal was quite proper. It is plain that Mr Chappell was concerned only that there was some residual which might come out; the contrary was never put to him.

10. [62]

    That was a significant concession on the part of West Cliff, and one which is contrary to the submissions advanced on its behalf on appeal. It is one thing for Mr Chappell to unbolt the hatch in the expectation that up to ten litres of residue would come out. That was an expected consequence of the geometry of the sump and the hatch, and evidently had happened many times before. It is another thing entirely for the sump to have contained thousands of litres of slurry.

11. [63]

    I would accept that this aspect of West Cliff’s case was capable of falling within issue 5(h) of the “Issues on Cross-Claim” document, and was advanced at trial (including in the 3rd and 10th references mentioned at [15] and [17] above). I would further accept that West Cliff advanced this case in its oral submissions at trial, although it goes too far to say that this was its “principal” or “primary” case. However, that paragraph must be read with a specific disavowal of a case that Mr Chappell recognised the possibility when unscrewing the last bolt that the tank was full. Paragraph 5(h) refers to Mr Chappell continuing to open the hatch “even although a potential risk of harm to Mr Corbett had been identified”. The risk of harm in the present case was a deluge of slurry coming from a full tank, not the residue which might be left in the lip of the hatch after the tank had been emptied.

12. [64]

    There is a further difficulty, which was emphasised by Allfab. On the way West Cliff seeks to advance its case on appeal, Mr Chappell should have delayed opening the hatch until Mr Corbett had moved further away in light of the possibility that the tank was full. That was not put to Mr Corbett. The failure to do so contrasts with the way in which the precautions advanced in the “Issues on Cross-claim” document were squarely put to Mr Chappell, as outlined above at [55].

13. [65]

    That is to say, it does not appear to have been squarely put to Mr Chappell that he should have delayed opening the hatch until Mr Corbett had moved further out of the line of fire, and it certainly was not put to him that he should have delayed opening the hatch in light of the possibility that the tank was full. This was the point made by Allfab orally:

14. [66]

    By way of summary, West Cliff seeks to advance on appeal a claim that the primary judge failed to determine a significant aspect of the case advanced at trial. It would be fair to say that at best this was but one aspect of the case advanced at trial, the major aspects corresponding to the failure to take the precautions which the primary judge addressed explicitly and at length. This aspect of the case was disavowed at the conclusion of the trial, as the primary judge with respect correctly recorded in his careful judgment. The steps on which West Cliff now rely in support of its appeal were not put to the relevant witness. And the primary judge with respect correctly regarded the idea that an Allfab employee continued to open the hatch in the belief that the tank might be full, as opposed to containing the residue of slurry that always remained, as having been disavowed by West Cliff.

15. [67]

    I do not consider that error has been established in the way the primary judge proceeded.

Balance of the appeal

1. [68]

   West Cliff’s complaint that the primary judge “erred by not making a clear finding on whether Allfab owed Mr Corbett a relevant duty of care” may be outside its notice of appeal, but in any event, contrary to what was put by West Cliff, the primary judge did make a finding as to duty. His Honour said at [38] that “Allfab did not dispute that it owed a duty of care to Mr Corbett”, although it denied that it had breached that duty. His Honour immediately thereafter turned to breach.

2. [69]

   Although, if read literally, this portion of the judgment falls short of an explicit finding, it is clear in context that his Honour accepted what he regarded as a concession from Allfab that it owed a duty of care.

3. [70]

   It will already have been seen that West Cliff’s document “Issues on Cross-claims” did not draw a clear distinction between duty and breach. The precautions were repeated under both headings. But nothing turns on that, because, as the primary judge correctly stated, Allfab accepted it owed Mr Corbett a duty of care.

4. [71]

   Duty was not admitted on the pleadings, and there was an inconclusive exchange at the end of the second last day where counsel for Allfab declined to admit duty, but was cut off before completing his answer. On the following day, the last day of the trial, the third page of the transcript records counsel interrupting West Cliff’s submissions as to the duty owed by Allfab as follows:

5. [72]

   West Cliff ultimately acknowledged that “there was a kind of partial concession about duty”. If this aspect of the reasons is subject to criticism, it is that the content or scope of the acknowledged duty of care is not elaborated. There was “merely a broad statement that a duty of care was owned, so we do not know what the content was”. But nothing turns on that, as is implicitly recognised in the way ground 1 of West Cliff’s notice of appeal has been drafted, confined as it is to breach. The primary judge’s findings of no breach were dispositive of West Cliff’s claim.

6. [73]

   Insofar as West Cliff submitted that the primary judge had erred in relation to the failure by Allfab to have done anything in accordance with its own document to “positively isolate stored energy’ this has been addressed above. The primary judge did deal with it.

7. [74]

   Allfab submitted that West Cliff never formulated the precise steps that Allfab should have taken in order to “positively isolate stored energy” and that such a formulation was never put to Mr Chappell.

8. [75]

   I respectfully agree. The Safe Work Method Statement document is problematic. A case of breach of duty based on a failure to do something must be something sufficiently clear to be articulated and, at least in a case such as the present, put to the appropriate witness.

9. [76]

   Ground 2 of the notice of appeal seeks to alter the judge’s (notional) assessment of statutory contribution. Doing so is problematic. It assumes Allfab breached its duty of care owed to Mr Corbett, and would require factual findings to be made as to how that occurred. But that is not the only obstacle. A larger problem arises in relation to West Cliff’s breach, because there is no good way of assessing the culpability of West Cliff. Precisely how and why its systems failed is unexplained. It strikes me as a signally potent breach of duty to sign formal documents and place locks on the isolation board so as to permit external contractors to go to clean and maintain the sump while thousands of litres of slurry remained in the sump which was to be opened. How can there be a comparative examination of “the whole conduct of each negligence party in relation to the circumstances of the accident” (Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494) when so little is known of what West Cliff did and why its systems failed?

10. [77]

    It is sufficient to observe that West Cliff bears the onus of establishing error in the primary judge’s notional assessment. As was said in Nominal Defendant v Dowedeit [2016] NSWCA 332 at [132], referring to Podrebersek, “It is well-established that the apportionment decision of the trial judge is ‘not lightly reviewed’”. West Cliff’s submissions on ground 2 were very brief. I am unpersuaded that the notional assessment of the primary judge should be interfered with. Ground 2 is not made out.

11. [78]

    Only the briefest oral submissions were directed to Allfab’s notice of contention, which sought to uphold the judgment in its favour on the basis of causation.

12. [79]

    Allfab’s written submissions occupied less than a page, but were directed to new factual matters, in particular, the varying viscosity of the slurry, as to which it was said that there was “some indirect evidence”. True it is that there was evidence from Mr Chappell that “the valve could have plugged in magnetite”. That does not sound entirely implausible, but it is expressed speculatively, and I would be reluctant to act on that evidence alone. West Cliff’s written submissions did not address the factual evidence at all, and with only the briefest of oral submission by Allfab, there were no oral submissions in reply.

13. [80]

    Given the paucity of submissions on the point, and the fact that the notice of contention does not arise and cannot affect the outcome of the appeal, it is inappropriate to deal with it.

Orders

1. [81]

   For those reasons, I propose that the appeal be dismissed, with costs.

2. [82]

   EMMETT AJA: The question in this appeal is whether the appellants (together West Cliff) are entitled to statutory contribution from the respondent, Allfab Constructions Pty Limited (Allfab), in respect of damages paid by West Cliff to Mr Leslie Corbett, who was injured in a workplace accident in a coal preparation plant operated by West Cliff. Allfab was retained by West Cliff to provide maintenance services at the plant. Mr Corbett was employed by Turbo-Vac (Australia) Pty Ltd, which had been engaged by West Cliff to provide services in connection with maintenance of the plant. He was not an employee of either West Cliff or Allfab.

3. [83]

   Mr Corbett sued West Cliff and Allfab in the District Court. On the first morning of the trial, West Cliff settled with Mr Corbett, and Mr Corbett subsequently sought, and was granted, leave to discontinue his proceedings against Allfab. However, West Cliff consented to judgment in his favour in the sum of $420,000 plus costs. That left for determination West Cliff’s cross claim for statutory contribution from Allfab under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) in respect of the judgment in favour of Mr Corbett. The question before the primary judge was whether Mr Corbett would have succeeded in his action against Allfab. A judge of the District Court (the primary judge) found that Mr Corbett would have failed to establish breach on the part of Allfab.

4. [84]

   West Cliff appealed to this Court from the orders of the primary judge. The essence of ground 1 of West Cliff’s notice of appeal is that his Honour failed to determine the principal case that it propounded in support of its contention that Allfab breached its duty to Mr Corbett. I have had the advantage of reading in draft form the reasons of Leeming JA and agree with Leeming JA that the primary judge did not fail to deal with the way in which West Cliff advanced its case and that ground 1 must fail. I also agree with Leeming JA that, while the formulation by the primary judge of the duty owed by Allfab to Mr Corbett was less than ideal, the finding that there was no breach by Allfab renders that question unnecessary. It follows, for the reasons proposed by Leeming JA, that the appeal should be dismissed with costs.

5. [85]

   SIMPSON AJA: I agree with Leeming JA.