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Czatyrko v Edith Cowan University [2004] HCATrans 410 (26 October 2004)

Last Updated: 2 November 2004

[2004] HCATrans 410

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P44 of 2004

B e t w e e n -

BRETT GEORGE JERZY CZATYRKO

Appellant

and

EDITH COWAN UNIVERSITY

Respondent

GLEESON CJ
McHUGH J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 26 OCTOBER 2004, AT 12.30 PM

MR B.L. NUGAWELA: May it please the Court, I appear together with my learned friend, MS J.J. STRIBLING, for the appellant. (instructed by Vertannes Georgiou)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR J.R. CLYNE, for the respondent. (instructed by Phillips Fox)

GLEESON CJ: Yes, Mr Nugawela.

MR NUGAWELA: If it please the Court. We identify three errors made by the Honourable Full Court. They are set out in Part V of our outline of submissions. In particular, the first error in paragraph 5.1.1 goes to the question of breach and the way the Full Court put the question was as follows: whether or not it was reasonable for the respondent to implement any system or measures to warn the appellant that the hoist was being lowered because it was entitled to exclusively rely upon the appellant worker to look at all times where the hoist was before stepping off the back of the truck. There is no reference whatsoever, your Honours, to the question of inadvertence or preoccupation with the tasks at hand or repetition or the pressures of work and the like.

Commencing at paragraph 16 of his Honour Justice Murray’s reasons for decision appearing at page 207, his Honour commenced the inquiry by setting up in part what we call the obvious risks dicta of his Honour Justice Kirby in Romeo and notable is the absence of his Honour Justice Kirby’s reference to the need to take into account inadvertence in the particular circumstances of the case. There are three features of paragraph 16 in our respectful submission. The first feature, of course, that already mentioned, your Honours, the omission to refer to the need to look at this question of inadvertence. The second feature is this phrase:

“Where a risk is obvious to a person exercising reasonable care -

That phrase was taken by the Full Court in a way which we say emasculated the apportionment legislation. The assumption by the Full Court was that if the plaintiff failed to take reasonable care in these circumstances of an obvious risk then no duty is breached. No question of apportionment arises.

The third feature, of course, your Honours, is that this dicta of his Honour Justice Kirby is made in relation to the duty owed by an occupier to a casual entrant to warn the occupier of what is sometimes called as a clear and open danger, quite far removed from the non-delegable duty of care owed by an employer to protect against an employee’s inadvertence on a systematic basis. Then, going onto paragraph 17, his Honour Justice Murray proceeded:

In that event

and in our respectful submission, his Honour there was referring to in the obvious risk type of event -

because the obligation of the defendant is to take reasonable care to avoid foreseeable risks of injury, the duty will not be breached by the failure to warn.

Jumping to paragraph 29 of the reasons at page 212, again infected by this notion of obvious risks, the very last sentence in paragraph 29, the conclusion being:

There was no substitute for the respondent looking where he was going and, in my view, it was not negligent for the respondent to rely upon him to do so.

Of course, I think, he was there referring to the employer and we see again, your Honours, no room in that formulation for inadvertence born of repetition or pressure, no room for the apportionment legislation because of the identification of a mere obvious risk.

It is clear that his Honour Justice Murray accepted that this worker was subjected to time pressures as his Honour put it at paragraph 25, line 36:

they were in something of a hurry -

But when one looks at the evidence before the Full Court led trial, we say there was an overwhelming, if not uncontradicted, evidential basis on which the trial judge relied upon in concluding that this appellant worker was in fact working under time pressures. I think at one stage of the evidence that he gave, and that is collected in footnote 14, one stage he said that he was struggling to cope with the pressure of stacking the boxes in the back of the tray.

We say, your Honours, that the first error thus identified highlights the infiltration of this post-Romeo notion of obvious risks into the employment context and its selective engagement against employees. Of course, as the trial judge found, what is obvious to the employee no doubt would be obvious to the employer but its selective deployment against the employee in the face of established law which requires an employer to protect the employee against his own inadvertence, heedlessness or carelessness when designing and enforcing a safe system of work. The authorities from this Court go back to at least 1943, if not earlier.

We say further, your Honour, on this particular error, that if this decision is allowed to stand in Western Australia, it will completely displace the proper examination of the bundle of obligations upon employers in a multitude of factual situations by the mere invocation of the obvious risk mantra selectively against the employee without any attention to the fact that such risks will, by definition, be equally if not more obvious to the employer, that is the party charged with the legal burden of apprehending, anticipating and guarding against this type of risk.

GLEESON CJ: Mr Nugawela, was there any relevant statutory duty here, or is this purely common law?

MR NUGAWELA: Yes, the point made by his Honour Justice Murray in the reasons for decision was that the breach of statutory duty pleading was not pursued before the court. My instructions were that that point was not abandoned at trial, but no notice of contention was taken by the worker before the Full Court and it would transpire also that the Full Court was not addressed on this question of the plea to breach of statutory duty.

GLEESON CJ: If the case of statutory duty had been pursued, would contributory negligence have come into it?

MR NUGAWELA: There is no equivalent provision in Western Australia that, for instance, exists in New South Wales, your Honour. I have not studied the point carefully because it was not agitated below, but my question is that there is no equivalent provision which is present in New South Wales to the effect that contributory negligence is not a defence to a case run on breach of statutory duty. If it is a point that is open for us to run in the light of University of Wollongong v Metwally, in that sense, and in the light of the High Court decision in Slivak v Lurgi and earlier cases, it is a matter which we are happy to address your Honours on by way of, perhaps, written submissions. But I am quite firm, and I have checked on this point, my instructions were that the pleading was not abandoned at trial and it was not abandoned on appeal, it just was not adverted to.

GLEESON CJ: Mr Nugawela, we would like to adjourn now until 2.15.

AT 12.39 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

GLEESON CJ: Yes, Mr Nugawela.

MR NUGAWELA: If it please your Honours. Before the lunch adjournment, your Honour the Chief Justice asked me about breach of statutory duty and whether the apportionment statute covered that situation. Serendipitously, in the book of authorities set out under tab 1, your Honours, the definition of:

“Negligence” includes breach of statutory duty –

so that the - - -

GLEESON CJ: You had no particular motive to want to rely on statutory duty rather than common law negligence?

MR NUGAWELA: That is right. It would make no difference. However, on the question of breach of statutory duty generally evidencing negligence, there might well have been some advantage depending on how your Honours view our submissions on this notion of obvious risks and breach and I really cannot say any more, not being assisted by any findings in the intermediate appellate court below.

Your Honour, I was about to conclude on what we have identified as the first error in the decision of the Honourable Full Court and I was just going to mention, before the adjournment, that it is indeed from our perspective noteworthy that in formulating the scope of the duty of care, the Honourable Full Court mentioned as a starting and ending point the notion of obvious risks derived from a selective part of the dicta of Romeo but completely overlooked mentioning this concept of inadvertence which was required to do in the plea in Tedman. In fact, your Honours would note that McLean v Tedman was one of the cases relied upon by the worker in the intermediate appellate court but it was just merely relegated to a case cited, not even referred to in the judgment. In my learned friend’s list of authorities, your Honours are taken to the dicta of his Honour Justice Kirby in Romeo at page 478 and it is immediately apparent there that his Honour considered the notion of inadvertence in the same paragraph as considering this notion of obvious risk in the context of the scope of duty of care.

If I may turn, your Honours, to the second error that we identify in the Honourable Full Court’s decision and that is set out at paragraph 5.1.2 of our summary of argument and that essentially was that the Honourable Full Court, in substituting the decision of the learned trial judge, itself did not undertake properly or at all, we say, the requisite breach calculus in the context of Wyong v Shirt. The Full Court looked at this issue, or revisited this issue at paragraph 28 on page 212 of the appeal book and in seven lines dispensed with the entire Wyong calculus. The most important sentence in paragraph 28 we say is the last sentence where his Honour said:

To my mind, the chance that he would do so without looking where he was going was, although reasonably foreseeable, remote.

And that encapsulated the whole Wyong calculus as far as the Full Court was concerned. We say it is inadequate for three reasons. When considering the magnitude and degree of probability of the risk materialising, his Honour Justice Murray provided no reasons whatsoever and no justification whatsoever for the subjective classification of the risk being remote. To my mind, it was remote. In other words, if the worker was looking where he was going as he was required to do in respect of an obvious risk, then this injury would not have happened, therefore the risk of injury is remote.

Cast in that way one immediately sees again the infiltration, at least at an underlying level, of the notion of obvious risk when looking at the question of breach itself. No regard, your Honours, was paid to the uncontradicted evidence of time pressures or the evidence of the worker where he said he was struggling to cope. No regard was paid to the severity of the risk of injury to this particular employee falling off the back of an elevated tray of a truck in circumstances where, to the knowledge of the employer, he had previously sustained a hip injury during the course of his employment, in a Paris v Stepney Burrough Council sense. Absolutely no regard was paid to the notion of employee inadvertence and no regard again in these seven lines at paragraph 28 to the silent threat that the platform would be lowered without any warning whatsoever whilst this employee was preoccupied with the task of stacking and restacking under considerable perception of pressure and time deadlines.

GLEESON CJ: Mr Nugawela, where do we find most conveniently in the evidence a description of the platform and the relationship of the platform to the truck?

MR NUGAWELA: Yes, we have sought to describe that and I think my learned friend does not disagree with the statement of facts found or admitted below and in our outline of submissions at paragraph 4.4, your Honour the Chief Justice.

GLEESON CJ: Is there any photograph of it?

MR NUGAWELA: No.

HAYNE J: What is the exhibit 177, exhibit E appeal book 177 showing us?

MR NUGAWELA: I am obliged to my learned friend. Your Honour, this was a diagrammatic, I suppose, illustration of the type of hoist that was similar in the circumstances of this case and senior counsel points me to page 73 at line 35 - - -

GLEESON CJ: It is the one with the circle around it.

MR NUGAWELA: Yes.

CALLINAN J: There was some suggestion that it was an enclosed tray. Am I wrong about that?

MR NUGAWELA: Yes, I think his Honour Justice Murray did say it was a tray truck with a van body enclosed around the top and the sides and as - - -

CALLINAN J: This one does not seem to have any enclosure, does it?

MR NUGAWELA: No, and that is why, your Honour Justice Callinan, when I had seen this before and looked through the transcript my impression was that what is represented there is not a direct facsimile of the vehicle in question.

HAYNE J: But that shows a tray truck with a van body.

MR NUGAWELA: It does. It also shows a roll-down rear door - - -

HAYNE J: A shutter, yes.

MR NUGAWELA: - - - your Honour Justice Hayne, which was - on the evidence, one did not know whether it was a slide-open door which was folded open or whether it was a roll-down door. The important part of that illustration, I suppose, was the dimensions of the platform itself and as summarised in the decision below in respect of which I understand there is no dispute, the hoist or the platform was as wide as the rear of the truck and about 1.5 metres in depth.

GLEESON CJ: But what happens to the hoist when the truck is travelling?

MR NUGAWELA: Yes, there was an issue that arose in the context of potential motor vehicle third party legislation and I think his Honour the trial judge found that the hoist was operated squarely by battery power and did not need the engine of the truck to be running while it was operating.

GLEESON CJ: If you look at page 177 as being an approximation.

MR NUGAWELA: Yes.

GLEESON CJ: What happens to the tailgate hoist when somebody wants to drive the truck from point A to point B? Is it wound up underneath the tray or something?

MR NUGAWELA: I do not honestly know the answer to that, your Honour. I can try and find out by the time I get to my reply, but I do not recall seeing any evidence as to its disposition while the vehicle was in motion. Looking at the second Wyong factor, that is the expense, difficulty and inconvenience of taking alleviating measures in the circumstances and when one considers paragraph 28 of the Full Court’s decision, it is striking that no mention was made of that in the context of the breach. It was pleaded below that the employer – or one of the particulars of negligence was that the employer did not provide any training as to the co-ordinated use of the hoist so it just need not necessarily be a failure for one case. This case is about the non-delegable duty of care upon an employer to prescribe and enforce a safe system of work including, as alleged in the pleadings, a duty to provide training in the co-ordinated use of the platform.

Finally on the question of breach, your Honours, contrary to my learned friend’s submissions, the reasons for decision at paragraph 9 on page 205 and the reasons for decision at paragraph 11 on the following page have nothing, in our respectful submission, nothing to do whatsoever with the Wyong calculus in the context of breach.

HEYDON J: They would have something to do with the difficulty and inconvenience of taking alleviating action, do they not? It says it is practical:

There was no problem with the practicality - - -

MR NUGAWELA: At paragraph 11, yes. I accept that - in line 35:

There was no problem with the practicality of the measures suggested, by which the risk of injury could have been averted.

However, at paragraph 9, which my learned friend places reliance upon as well, has absolutely nothing, we say, to do with the question of breach. Your Honours, we classify the third error at paragraph - - -

HAYNE J: Just before you depart from that point. There was some evidence given by Mr Apgar at 170 and following, particularly at 172 in lines 5 to 30 about the cost of putting on a beeper which seems to come in at something of the order of $20 or $30 or something of that kind.

MR NUGAWELA: It is even less, your Honour. I think we have made a footnote – footnote 63 as to the costings provided by Mr Apgar as well as the commercial quote for the installation, $250. This is in our first summary of argument.

HAYNE J: Yes.

GLEESON CJ: How does the beeper work? Does it beep while the platform is being lowered or does it keep beeping all the time it is, as it were, not up there?

MR NUGAWELA: I believe, your Honour the Chief Justice, that it beeps or it can be designed to beep while the hoist is being lowered.

GLEESON CJ: So that if the hoist is lowered and half an hour later somebody in the position of your client decides to get off the truck, the beeper is not providing any protection at that stage. The beeper is, as it were, to indicate that the platform is now being lowered.

MR NUGAWELA: That is correct.

HAYNE J: To make noisy what otherwise is a silent operation apparently, or next to silent operation.

MR NUGAWELA: While it rises I understood it to make quite a bit of noise culminating in a loud clanging as it finally engaged with the level of the truck, of the tray. Whilst it was descending, was descending silently because it was descending under its own weight as hydraulic pressure was released.

GLEESON CJ: Does it make a bang when it hits the ground?

MR NUGAWELA: There was not any evidence of that, I do not think. Can I turn, your Honours, to the third error which we described compendiously at paragraph 5.2. This is relating to the apportionment exercise. Now, the learned trial judge found as a fact that the appellant’s behaviour did not amount to contributory negligence because his subjective belief was fostered by the very negligence of the employer and this is at page 187, paragraph 27 and we say that this was clearly a finding that was open to his Honour and supported by very high authority - a decision of this Court in Piro v Foster Pty Ltd [1943] HCA 32; (1943) 68 CLR 313 at 323 per Chief Justice Latham; 328 to 330 by Justice Starke and 335 to 338 by Justice McTiernan.

How the Full Court dealt with this matter commences at paragraph 330 on page 212 of the appeal book and this is the first point we make about contributory negligence. At line 53 his Honour Justice Murray speaking of the then trial judge said this:

His Honour did not find this to be a case of mere inadvertence. He found that the respondent stepped back without looking because he believed that the hoist would be in a position for him to do so safely. He was of that belief, his Honour found, because the respondent had not been told that the hoist was to be lowered and had not heard any sound to indicate that it was being lowered.

Again, in my respectful opinion, that is not to the point.

In our submission, your Honour, that is very much to the antecedent inquiry and has to be made when a court looks at this whole question of apportionment. What we say so far, this approach demonstrates, was an impermissible delegation of the employer’s duty of care. In a sense, employer created the trap, the employee fell into the trap and the operative cause was the employer’s very negligence in the first place to prescribe a safe system of work. If the employee fell into the unsafe system left by the employer, any inadvertence on the employee’s part, in a sense, cannot be said to be an independent, contributing or material cause to the injury and this we say is consistent with the High Court’s approach to this notion in Piro v Foster Pty Ltd as far back as in 1943.

If your Honours are not with us on that point, the alternative point we make is this, that when one looks at the reasons for decision again, and this is at page 213, first paragraph after the punctuation:

in short, by failing to look where he was going when there was no suggestion that there was anything to prevent him doing so.

There was no discussion of the Sungravure exculpatory factors at all. The Full Court seemed to proceed upon an inherent or an underlying assumption that this worker was obliged, exclusively obliged, to look where he was going because here we have obvious risk and because of that obligation, because of the fact that he failed to look where he was going, we can put established decisions on apportionment like Sungravure, in Podrebersek, in Pennington v Norris, the need to compare relative culpability, we can sanitise and sterilise all of that and put it to one side. We say again that the notion of obvious risks in the context of the apportionment again was overplayed. I did mention, your Honours, that at one stage, the worker gave evidence that he was struggling to cope. That is referred to at footnote 14 in our launching summary of argument.

GLEESON CJ: What was the time that elapsed between when the platform was lowered and when your client stepped off the truck?

MR NUGAWELA: I think an inference can be drawn, your Honour the Chief Justice, that it could not have taken very long because the platform was almost two thirds the way down to the ground when this injury occurred.

GLEESON CJ: It was on the way down?

MR NUGAWELA: Was on the way down.

GLEESON CJ: How long would it take to get from - - -

MR NUGAWELA: Your Honour, I cannot immediately find that but I will look for that in my reply. The alternative proposition in relation to apportionment is this, that if the Honourable Full Court was justified in fact in overturning the trial judge’s finding of no negligence, of no contributory negligence, then we say that the apportionment of 70 per cent in the circumstances of this case was so wholly erroneous and was brought about by a manifest incomplete analysis of the sum review of factors as to warrant the High Court’s intervention.

Seventy per cent, your Honours, is punitive of a distractive employee preoccupied with a repetitive work task working under pressure. Conversely, 30 per cent responsibility on an employer in respect of a risk which is obvious to an employer is unduly exculpatory in circumstances where it is the employer who bears the legal, primary, non-delegable burden of apprehending the risk of inadvertence and taking alleviated measures to design and enforce a safe system of work. This is not a case of a casual visitor to private premises requiring a once-off warning in respect of a clear and open danger.

The Honourable Full Court dealt with the question of relative culpability in six lines at paragraph 32 on page 213 of the appeal book. In those six lines, we say, two broad errors were disclosed. The first error, your Honours, is that obviously relative culpability can only be assessed when the primary duty is correctly stated and omissions or an error in stating the scope of the duty of care in the context of breach will logically taint the apportionment exercise and this, we say, is a proposition that is entirely consistent with my learned friend’s written submissions in paragraph 32, the last sentence:

In the circumstances the suggested reduction of the appellant’s damages by 70% was appropriate . . . for the reasons discussed on liability above.

We say, your Honours, that for all the reasons going to the notion of the degree and magnitude of the risk the apportionment of relative culpability should, in the circumstances of this case, be very much against the party charged with the primary legal burden.

In cases No 16 and 17 in a book of authorities to which I will not take your Honours, there is an illustration of apportionment in the vicinity of 20 per cent. In Bankstown v Braistina which is, I think, No 2, the ultimate apportionment is 10 per cent and I have handed up a decision earlier on to your Honours. It is a decision of the South Australian Supreme Court, the Full Court, 15 October 2004, Junkovic v Neindorf. That was a case where an invitee to premises, private premises, tripped on a footpath recently and the apportionment there in that situation was only 30 per cent for contributory negligence.

Can I say, your Honour, there is just one final point which may or may not ultimately trouble your Honours. At paragraph 4.5 of our written submissions we refer to this notion, in the first line, that it was Mr Fendick’s job to put a number of cartons on his trolley, bring the trolley to the rear of the truck, lower the hoist and that comes about from paragraph 26 of his Honour Justice Murray’s reasons for decision at page 211, the second line when his Honour said the same thing:

It was Fendick’s job to . . . lower the hoist -

That carries with it the assumption that the hoist was in the raised position. Now, I think my learned friend, in his notice of contention, wishes to argue on the evidence that the hoist or the duration of the hoist most of the time was in the lowered position as opposed to the raised position but perhaps it is a matter I can address if called upon to do so. Your Honour, we are still searching for those references. Unless your Honours have anything for us, those are our submissions.

GLEESON CJ: Yes, thank you Mr Nugawela. Yes, Mr Walker.

MR WALKER: If it please the Court. Your Honours have seen now the picture at 177 with the description at 73. On our understanding of the evidence, there is nothing to answer your Honour the Chief Justice’s question about what happens when it is not being used for the up and down loading or unloading exercise.

HAYNE J: Well, at page 170, line 36, Mr Apgar says:

Some can actually be flipped over under the truck but I think this was the type that stows vertically.

MR WALKER: Yes. No, I had that and I was about to go to all of his evidence. That does not tell us anything about any particular configuration of this one which cast any light on any of the issues in the case. I do not know whether it goes under or flips up. Your Honours have probably seen the ones that flip up but it did not seem to have any – it is important to remember that Mr Apgar’s evidence at 170 is of an inspection of a, by then, partly dismantled apparatus. While there, it is convenient if I go then to 171. This places in technical context some of the evidence about noise. About lines 10, 11:

it’s integral with, if you like, the vehicle’s electrical system. To control the unit there’s a pendant control which is just a little plastic hand piece with two buttons, one for up and one for down –

That is some significance -

When you drive the unit up, the little motor spins very fast and they typically make quite a loud whining noise. They’re not terribly sophisticated and they don’t have to work but a few seconds at a time and they make quite a lot of noise going up.

I do not know whether that assists in understanding it relatively in time up, time down, but it gives an indication it might be quicker going up than down. It talks then about then about the hydraulics operating with gravity to lower “in a controlled manner” – see line 24 in the same answer. Then they turn to this particular vehicle and one sees in line 34 that whereas some might be mechanical for the descent, this one is electrical because it is an “electrically operated valve” for the hydraulics. Now, that again is significant, that it is electrical up and electrical down. This was not a moaner, some of these units moaned – see line 40 – as they are lowered. This one apparently was not like that, it was extremely quiet. On page 172, in coming to a cost estimate I think of something not much more than $3.40 perhaps, Mr Apgar refers at line 19 to the diodes for:

each of the wires for the up or the down -

because, recall this is an electrically operated valve to go down, recall also that the entirety of the case alleged against us was that there needed to be a beep as it was being lowered, so it is up and down. You then go to page 174, lines 45 and following.

The beeper that you suggest that the defendant could have had on the hoist, I take it that it beeps when the hoist is moving.

And as the further evidence will show that means up or down -

It beeps whenever one of the buttons is pushed.

There are two buttons, up or down, as you will recall –

So it’s electrically activated so if the circuit is alive the beeper goes.

And these units have got dead man switches . . . So you take your finger off it stops automatically?---Yes.

So the minute –

I think that means really the moment –

you take your finger off the unit the noise stops?--- Yes.

That answers your Honour the Chief Justice’s question. There is noise only while there is an electric circuit made by a button being pressed. That happens whether a circuit is being used to open a valve, down, or to operate a motor, up.

HEYDON J: And your point is that it is the same noise, both directions.

MR WALKER: The beeper will be the same noise. It is the truck’s reverse beeper, back off or back up or whatever it is called, back-up beeper. There will be a different symphony, as it were, on the way up because you have got the beeper plus the whining motor, with the percussion of the clang at the end. There is no evidence, so far as we can see, of the clang on the ground. That would no doubt depend upon the ground, plus also the fact that it is a hydraulically controlled descent so it is relatively gentle compared to the motorised ascent.

Now, while here it is convenient to go to 175 for a slightly different point. Mr Apgar, as the record shows, had been subjected to a bit of a contest as to admissibility in the voir dire. He had earned his expertise, which the learned trial judge upheld, the hard way. He had invented, or devised, one of these devices which had been, in his own expressions, a large commercial failure; sold eight units. The cross-examiner perhaps cruelly, first of all, went to that unfortunate part of the CV, and then at page 175, line 13 says:

in a situation with small hoists, like the one – or medium hoist that you described, the one that you think was involved in the accident, that it is in the marketplace very unusual to have a beeper attached to them?---That’s correct.

So there is nothing we can or should say about the practicality finding in paragraph 11; that is, the electronics are not difficult, turning the beeper to dual service is not difficult, the cost is trivial – and they were taken into account in the Full Court. It is nonetheless of some moment to notice that this was a very unusual configuration in the marketplace of something which obviously does not have any purpose other than going up or down to allow people and loads to come in and out of a truck with a tray. Being a truck, it is in the nature of things that it is off the ground, not at ground level. So that was the position which had to be dealt with by these workers.

We know that the particular way in which they worked was not something which could really be dealt with by what might be called a procedures manual; that is, it was devised as to the division of labour among them because they were under a hurry-up call to get back so that they would be available to go to Bunbury the next day on another job. We know that they decided that Mr Fendick, the workmate, would do the transporting of the boxes from the office on the trolley to the tailgate hoist, and the plaintiff would do the taking of the boxes, together with Mr Fendick, off the tailgate hoist into the tray of the truck and, while Mr Fendick was off getting another load of boxes, arranging the boxes in the truck.

Now, the struggling comment that my learned friend has twice drawn to your attention is in a specific context about struggling to put the boxes in order. It really has no connection at all with the idea of some Simon Legree style pressure on the workers at all. He had the boxes off the tailgate hoist, immediately into the truck, and he would be stacking them in an ordered fashion in the truck while Mr Fendick was off getting the next load. There was a bit of a hurry up. Justice Murray takes that into account. It is of some significance to see the way in which Mr Fendick put it when he was asked about it. It starts at page 137 of the appeal book, about line 47 or thereabouts:

Yes, we were loading the truck and I said to Brett can we – you know, like, he stays on the truck while I go and load more boxes and being them up to him and he said, “Yeah, fine.” So I went in, loaded the trolley up with boxes, came back, put the boxes on the tail lift – sorry, lifted the tail lift to the back of the truck and dropped the boxes off, got back on the tail lift and went down.

So he is coming up and down with boxes on what he calls the tail lift:

I was about two-thirds down when Brett fell back, hit his right – landed on his right side and I just stopped then and he was in pain.

Travelling down, page 138, he gives reference to the noise “quite loud because the motor’s taking it up” as it rises, “bangs against the back of the tray” when it gets to the top, “very, very low sort of noise”, you do not hear it very much on the way down. Then line 20:

Were you working at any speed during that day?---Yes, we were working quite fast.

And then there is a reference, not the only one, but a reference to the fact that there had been a relayed message about an annoyed boss.

GLEESON CJ: What was the reason the appellant stepped back?

MR WALKER: That is not - - -

GLEESON CJ: As it were, onto where the platform should have been?

McHUGH J: He had hardly any room, did he?

GLEESON CJ: He was running out of room.

MR WALKER: Well, yes, there is a colloquial answer about that very point at page 140 line 25. So there it is. Hardly any room I think is the finding.

HAYNE J: Not much.

MR WALKER: Yes, “probably about a metre”. Now, one has to put this into context. This is a tray truck. You are filling it. There is nothing unreasonable about requiring people to fill trucks, and there is “probably about a metre”. Now, whether or not that deserves the colloquial description that immediately follows in line 25 does not really matter. As Justice McHugh says, the circumstance in which the backward step had the injurious consequence was obviously that it was made too close to the back for it to be safe. Equally obviously, that was produced because, as it were, he was painting himself into a corner, which is what happens when you load a truck. No doubt that is why these hoists exist, because for the last tranche or so of boxes in the back of a truck or things in the back of a truck, you do not have a foothold in the truck and you are standing on the tail hoist itself.

In our submission, that is all terribly mundane, and it would be an act of massive condescension to tell people to be careful that they do not try to work, as it were, in midair. It is all of a kind which, as you can see for this particular unfortunate episode itself, is devised for the exigencies of the moment in a job which, where his workmate, Mr Fendick, describing a job of the same kind as he and Mr Czatyrko had at the time, you had to be flexible. There were all sorts of things that you would have to do from time to time.

GLEESON CJ: There may be an ambiguity in this concept of warning.

MR WALKER: Yes.

GLEESON CJ: Nobody ever suggested, did they, that the negligence of the employer consisted in not saying to the employee, “Don’t step backwards off the truck into midair”?

MR WALKER: Into midair. Yes, your Honour. Yes, that is right.

GLEESON CJ: The negligence, or alleged negligence, consisted in not having a system that would have alerted the employee to the fact that there was nothing but air space for him to step into.

MR WALKER: Quite so, yes. And it is unfortunate, undoubtedly unfortunate, that what are probably equally unfortunately called “warning cases” play much of a role in the decision on the facts of a case like this. I am not suggesting there is any special jurisprudence for warnings. However, the word “warning” never had to be used. It was used, see page 3 of the appeal book, in particular 7.1 of negligence, line 31, “failed to provide a warning ‘beeper’ or device”. You did not have to use the word “warning”. You could have used any number of words. “Aware” is the one in 7.3 - 7.3 is perhaps a little ponderous as a particular, “failed to instruct its employees to create a system”, in other words, when they were at these jack-of-all-trades, as Mr Fendick described the relevant position.

It is accepted in the plaintiff’s case that they are going to have to work out their own system for when they are loading a truck at a particular place; although again the word “system” may be a little grandiose for what is being talked about. In any event, 7.3 was:

failed to instruct its employees to create a system whereby the mechanical lifting platform would be operated by one person who would keep any other persons in the vicinity aware of its position at any particular time.

Now, that reminds one of the leadsman in an old sailing ship. Whether you are meant to be calling out constantly is not at all clear. In our submission, again, there is something in the nature of massive condescension involved in the notion that these people needed to be told that from time to time, if this thing was being used and someone was in the truck, there would have to be, as it were, constant calling out, “It’s going up, it’s going up.” “It’s going down, it’s going down, it’s down.” “It’s up” and while it is down or up I do not know whether you have to keep repeating it is down or up. That, of course, is why I have taken your Honours to the evidence concerning what in fact was happening.

If I could take you first back to 138 where I was. They were “working quite fast”. There was the phone call from the boss. At line 43 or so:

Why was it that that conversation is connected with you working fast?---He was just annoyed. The impression I got, he was annoyed that we were doing that job.

Was there any indication of time frames or what you were supposed to do after you had finished or how soon you had to perform?---Not that I can recall, no.

So there is not a lot of pressure, really. The flexibility reference that I have given comes on page 140, to which I have already taken your Honours, about line 19. In relation to this circumstance which particular 7.3 says should have been the cause for the employees, the two men themselves, to create a system of calling out - see page 23, the plaintiff himself, lines 19 and following - and that shows in a way which is appropriately mundane and ordinary, low-key, the way in which two men, using their commonsense and provided apparatus, split up the tasks for the purpose of getting things done.

Now, it is against that background that one then turns to the nature of the complaint made now about the Full Court’s determination. We know that the warning system, the mechanical one, the device if you like, which was to the forefront of the case, is one which would have a beeper, of the same musical tone whether you were going up or down, operating only during the up or down trip. We know that the loader of the truck, because he was stacking boxes in order to make room for the next lot of boxes, would not be going down with the tray every time the tail gate hoist, every time it went down.

So that at some stage or other he would be working in the truck, which is just like any ledge or elevated position that anybody has ever been on at any time since they became ambulant in private life, he would be working on the truck and probably facing, either for most or a considerable part of the time, away from the edge; in other words, the edge would be behind him. Now, this again is not a remarkable position. All of us have done it, again, since we were ambulant, very young, in private life as well. Stand with our back to something which is a vertical drop behind us. Indeed, that is what happens if you stop halfway up a flight of steps.

Now, in our submission, it is against that mundane or banal background that one then asks, “What are these beepers going to do?” One thing they are going to do is to introduce some complex of music, as it were. There is going to be the same beeper going up but with a motor going up, just a very, very quiet hydraulic hiss, presumably on the way down, different sort of music. But, one way or the other, once it hits the ground there is not going to be a beeper, and no one has suggested that there should have been, as it were, a flashing light beeper continuing while it was on the ground.

Where is the biggest fall? The biggest fall is when the hoist is on the ground. Is the hoist going to be on the ground for a considerable time? We have given the references in our written submissions. It is, in our submission, in the nature of things that the time was very appreciable, proportionately, while Mr Fendick was off giving the next load and coming back with the next load, compared to the period during which the boxes were being pushed off the hoist into the truck, the hoist then lowered so Mr Fendick could go off again for the next load, while in the truck, hoist on the ground, Mr Czatyrko was stacking the boxes in a more ordered fashion.

So that again, this was banal, ordinary and, to use a word that is now problematical, obvious. Now, we have got to concede that if one looks, say, at a 50-year span of case law, one sees the word “obvious” being used in older cases, and I do not say, of course, wrongly, as the description of a risk so foreseeable that, of course, the defendant should have done something about it. You can see a bit of a swerve in what are called, perhaps inappropriate, the warning cases where one sees that “obvious” is an epithet you ascribe to something where the defendant does not have to do anything about it because it is obvious.

Now, the word has been used in different contexts. The older cases, in particular, include employment cases. The newer cases, in particular, include what I will call “warning sign cases” in relation to hazards pretty much of ordinary life and ordinary landscape.

CALLINAN J: Mr Walker, in a way the case is really one of a failure to provide proper plant and equipment, is it not?

MR WALKER: It is, and I was about to say this – the word “warning” is unfortunate to have introduced into this case. It is a system of work case where it is a combination of apparatus and the way in which apparatus is used and the way in which co-employees are meant to interact with each other.

HAYNE J: As to the former aspect of that, the allegation against you is that you should retrofit - - -

MR WALKER: That is right.

HAYNE J: - - -to a piece of commonly sold industrial equipment.

MR WALKER: That is right. Exactly. In this case, in a very familiar way, it is said the actual system was wrong, spanner too big or whatever. Also, the way in which the workmen were instructed – although we have got here should have been an instruction to create a system, so it is a bit different – the language they were instructed should have included an admonition, “Make sure you think about” - “Make sure you have a system whereby if this is going up and down” – and its only function is to go up and down – if this is going up and down, there is somebody to tell people in the vicinity that it is going up and down, or presumably that it is up or it is down.

HAYNE J: Now, is it relevant to consider why, for example, large commercial vehicles do have back-up beepers, why forklift trucks have both lights and beepers?

MR WALKER: Yes. Yes, it is.

HAYNE J: Where does that line of inquiry take you though?

MR WALKER: It does not go - - -

HAYNE J: It does not take you into the evidence in this case, does it?

MR WALKER: No, it does not. No, alas, it does not. Mr Apgar is the high-water mark of evidence about – there is no behavioural aspect to his evidence at all, but about what I will call the mechanical system approach. There really is no evidence in this case about widespread use of beepers while a hoist is going up or down at all.

HAYNE J: Because the other two examples I gave are, I think, but do not know, requirements imposed by law, are they not, under various statutory regimes?

MR WALKER: I would be guessing, I am sorry, your Honour. They certainly sound as if they would be, but I may be doing automotive manufacturers a grave disservice by saying that. It may be they have done it for safety reasons. But there is a difference there, because there you are talking about the warning of pedestrians or other people of something which it is not, in the nature of things, they necessarily know about. Because one does not have eyes in the back of one’s head, one can be perfectly prudently standing still, and you need to be alerted – I suppose there is a bit of a.....effect that goes on – you need to be alerted that something is approaching you going backwards.

The other thing, of course, is that when you are talking about reversing a vehicle, it does not matter how good your neck flexibility is, your rear-vision mirrors or your wing mirrors are, there is going to be more blind spot than there is going forwards. So, in essence, it is a way of supplementing the diminished vision of a driver. They are really quite different from what we submit in ergonomic terms was nothing more than a person standing and working, and thereby also using his feet in a completely ordinary human way, just the fact that, you know, bipedal primates would explain it, on a surface which was higher than an immediately adjacent surface. Whether you call it a rock, a ledge, a log, a high step, a chair, a rung of the ladder, this is about the most obvious thing which the combination of being a human in more or less ordinary form and operating under ordinary gravity in ordinary circumstances, means that we always have to take into account.

GLEESON CJ: But the argument against you, as I understand it, is that the system of work involves a trap into which the appellant literally fell.

MR WALKER: Yes.

GLEESON CJ: Because, as I understand the evidence, the appellant took his backward move under the assumption that the platform was still there.

MR WALKER: With respect, that is an argument that has formidable qualities for me to combat. Allow me to attempt it as follows. The trap was in reality brought about, so far as the mechanical and workmen co-operating system is concerned, simply by the fact that not having eyes in the back of his head there would be times when, though he could not see it, he would not be able to tell you where the hoist was; for example, in its trip down.

Now, the trap comes, the word “trap” with its colourful support from my learned friend’s position, comes about by this notion of deception. However, a moment’s thought about the evidence that we have now taken you to in relation to what actually happened and, for that matter, what the proposed better mechanical system would have achieved, will show that there is nothing which, in any opprobrious sense, was deceptive on the part of my client’s system in the composite sense. We did not send a message which misrepresented the world as it was.

Rather, I have to accept that there was clearly a misunderstanding of the actual position of physical configuration of the surfaces upon which he was treading by the plaintiff. In that sense, of course, I have to accept that he had been misled by the circumstances, including what might be called his own inadvertence – an important word for me to face – into thinking that he was stepping onto something solid. Now, I have to accept that because it flies in the face of commonsense and would be nothing but a cruel taunt from us now to resist the obvious proposition that the poor man stepped backwards, as he did, because he thought he was stepping onto something which would support him. Of course. It goes without saying.

HAYNE J: That came about because you as employer operated this as a two-man crew. If it had been a one-man operation, the operator would know. But it is the second man who can come on and silently lower the tray.

MR WALKER: Thank you, your Honour.

HAYNE J: Now, is it not that which you have to grapple with?

MR WALKER: I certainly do have to confront that as well, not only. The short answer to that is that it is clear from the references we have given in our written submissions and, indeed, they are also in my friend’s submissions, and from the references I have taken you to this afternoon, that the plaintiff knew what was being done. As he turned to stack the newly arrived boxes more neatly in the truck he knew the hoist was going down, repeatedly. That is, it was no surprise to him to know that behind his back the hoist was going down. Now, the evidence is all one way on that, without any dispute possible at all on it.

Justice Murray, with respect, page 212 of the book, paragraph 29, really focuses on that kind of aspect of the circumstances in a way with which the plaintiff has to grapple. It is all very well to say it is a trap because though you know your workmate is lowering the hoist while you get on with stacking the boxes – indeed, the plaintiff protests that is what he is doing while Mr Fendick is off with the lowered hoist – as pointed out at paragraph 29, whether the hoist is up or down, there had to be some consideration of the most elementary - and we say banal kind – by the plaintiff as to where he was going to step, even when he was not mistaken as to the platform being there. The platform, when up, was calculated, of course, to have both his workmate and boxes on it. Your Honours have seen a picture of it. Imagine boxes perhaps one or two stacked height. Imagine stepping back - - -

HAYNE J: If these were block boxes they would have been stacked four high on a trolley.

MR WALKER: Well, whether four or – stepping backwards into them, imagine if an edge catches you right at your knee joint; that is the way you trip people backwards. Now, the notion – and Justice Murray has, in our submission, correctly, fairly and humanely analysed a position where all your human sympathies would be with the plaintiff. But the situation was whether it was truly up or falsely believed to be up, there had to be an elementary precaution of a kind that the employer was certainly entitled to accept, not the kind of mere inadvertence of a kind that employers have to factor into their reasonable response, because if one was just to step back onto the space that you believe to be this platform on the hoist when it being up, in the nature of the system you have devised, a perfectly sensible system, there are going to be boxes on it – it is, after all, a hoist to bring boxes up and down, in this case up – then obviously the risk of toppling very dangerously head over heels off the back of this platform is quite frightening.

So, in our submission, when Justice Murray said:

There was no substitute for the respondent looking where he was going and, in my view, it was not negligent for the respondent to rely upon him to do so -

we really come to whether or not this case has a dressed-up particular of negligence, in this idea of this beeper or the idea of the workmate calling out – and I do not quite know how that comes up with Mr Fendick going off to get boxes of books, whether he has to yell as he goes or whatever, “Remember it’s down, remember it’s down” – it is really a dressed-up complaint that the plaintiff was working, probably more often than not, with his back to a drop. Now, if that is what it comes down to, in our submission, this is not a case - - -

CALLINAN J: Well, is that right? There is still that unresolved question whether there was an enclosure - - -

MR WALKER: No, I do not think there is an unresolved question about that.

CALLINAN J: Not unresolved?

MR WALKER: In terms of the description of the truck - in the Full Court there was a reference to the inadequacy of the material at trial, but the truck is simply described as one with a tray with enclosed sides and roof, probably a door, but that door must have been open for the working to go on. So the enclosure in question is nothing other than what I think Justice Hayne has observed, there was a van on the tray, a van body on the tray.

CALLINAN J: With a movable - - -

MR WALKER: Door.

CALLINAN J: - - - partition or door.

MR WALKER: Which did not play any part in the circumstances of the accident. It is not suggested that got in the way of manoeuvrability or anything like that. So we are talking about putting the boxes into something which is scarcely unusual or a trap, namely a tray truck with enclosed sides and a roof. We are doing so with a device which, of course, is provided, not least to satisfy one’s duty of care in relation to back injuries and hoisting boxes up to shoulder height and the like, so the hydraulic hoist. There is no suggestion that there was anything unusual or unfamiliar about that.

The actual system of division of labour between the two had been devised by them in a way that they did not criticise, and we do not criticise. They do not, as it were, sue each other in that regard. So one comes down to the question, is this not really only a complaint about working on a tray truck where you have your back to a drop. Question, does your employer have to have a sign, perhaps on the front wall of the truck or dangling from the roof, “Don’t step backwards without looking” because our point is that even if the platform had been correctly understood to be up, there would still be a considerable danger, correctly understood by Justice Murray. That is the kind of calculus, ponderous and explicit, as it would not be, in our submission, required to be, which the defendant was entitled to call in aid and successfully did call in aid in the Full Court.

Now, that then leads one to contemplate not the practicality in the sense of the miniscule cost of the beepers, but rather the efficacy of it; that other aspect of practicability or practicality, which is, of course, part of a Shirt calculus in working out a reasonable response to a well-perceived risk and foreseeing a foreseeable risk.

The beeper would, of course, only operate going up or down. Unless one – and it is not positive there should have been G major for up and D flat for down in some conventional system so that you would remember which note you had last heard. It is one beeper. The kind of inadvertence that an employer will be thinking about, commanded to think about because that will not dispense them from their own duty of care – the kind of inadvertence will include losing count as to whether the last time you heard the beeper it was going up or down.

This is surely not a case where the plaintiff could now, as it were, in reply in the High Court, call in aid whatever difference of tambour would be introduced by the motor as well as the beeper on the way up. In our submission, that really means that you have only shifted the possibility of the elementary failure to take precaution for his own human bipedal upright stance that the plaintiff had. You have really only deferred to ask, “Well, would there be another inadvertence of failing to remember what the beeper meant when it last went off. Did it mean it was coming up or did it mean it was going down?”

In our submission, just as Justice Murray pointed out, all of these circumstances added up to one obvious point that none of these matters proposed after the event as being omissions which showed negligence in the event, none of these matters would have obviated the need for his own safety of a kind not special to his workplace, but just special to having his back to a drop of looking where he was going.

One does not have to put people either to warning or to have special devices to get people to do things at workplaces which are really no different in kind, either by way of degree of risk or by degree of difficulty avoiding that risk, from what happens at any stage in their ordinary life whether they were employed or not. We have given some examples in our written submissions, walking through doorways, dealing with traffic. That really means on that last reference, dealing with traffic, is there anything in a famous case with its facts such as McLean v Tedman which conduces to any opposite result. In our submission, no, not at all.

The first thing to be observed, of course, is that nothing would be more wrong than to press on this Court a decision in a particular case, albeit a decision of this Court, as if it provided a precedent for an arguably similar set of facts, particularly where they are not the same facts and never could be. We do not understand that our learned friends have attempted to do that. We accept that there is law to be found in McLean v Tedman but there is not, with respect, to be found any factual precedent but at the risk of trespassing on that approach nonetheless it is worth observing that in McLean v Tedman the whole Court upholding liability of Brambles, the trucking operator, perceived negligence because knowing of the garbos’ propensity to run across traffic streets in ways that one does not do in ordinary life. You do not do that in ordinary life with a humper, or a lumper or whatever it is called on his shoulder to empty garbage bins from the opposite side of the road.

That was precisely the kind of combination of something special at work in relation to something absolutely mundane, that is, look before you step into a traffic’s route, which meant that there was negligence for the combination of the employer’s knowledge of that and the ease with which a system could be devised shown by the quoted cross-examination in the majority judgment.

However, it is significant that the Court did divide, Chief Justice Gibbs in a lonely dissent, in relation to contributory negligence in the split between failure to take reasonable care for his own welfare found by the Chief Justice with the majority saying, no, that is the kind of inadvertence or carelessness that a case such as Smith v BHP shows ought not to attract any apportionment.

How different all of that was from this case where it was the most elementary and simple precaution of a kind that you could not seriously be expected without massive condescension either to warn verbally, to instruct pedagogically or to ensure by some mechanical means had to occur. Look where you are going. Watch your step. One of my friend’s footnotes in his written submissions raises a simple rope barrier as a device that might have been thought of. I only mention it to make it clear that that was never the case we had to meet and it is not a matter which gives the plaintiff any comfort in this Court now. May it please the Court.

GLEESON CJ: Thank you. Yes, Mr Nugawela.

MR NUGAWELA: May it please your Honours. In answer to your Honour’s question what happened to the hoist when the truck was driving, the references in the appeal book are at pages 175, lines 58 to 62 and 176, lines 5 to 12. There is no discernable answer to your Honour’s question for how long had the platform been lowered or was in the process of being lowered when the appellant fell off the back of the truck.

We say it is a matter of inference, really, given that the platform was almost two-thirds of the way down to the ground and it is in that context that we say an equally probable open inference is as set out at footnote 4 of our replying submissions. He was a man who was responsible for carrying out the stacking exclusively. The boxes had been deposited on the tray and he was the man who was responsible for relocating it into the back of the truck and if he stepped backwards, painting himself into a corner, to use that analogy, at that precise point in time when Fendick had just begun to lower the platform there we see the utility of even an oral warning from his co-worker on lowering the platform. One can put to one side - - -

McHUGH J: You did not run the case as a case of vicarious liability for the casual act of negligence on the part of the fellow employee, did you?

MR NUGAWELA: Yes.

McHUGH J: You did?

MR NUGAWELA: No, we did not.

McHUGH J: No.

MR NUGAWELA: Yes. But, you see, we ran it in the context of the pleading at 7.3 in the statement of claim and I will take your Honours to that, page 3:

The Defendant failed to instruct its employees to create a system whereby the mechanical lifting platform would be operated by one person who would keep any other persons in the vicinity aware of its position at any particular time.

Put broadly, a duty to prescribe the system of work, where there were two men, in the co-ordinated use of this mechanical device. As your Honour Justice Hayne point out, it was the introduction of the second fallible human agent, for want of a better word, that created the very need for prescribing a system of co-ordination enforcing on that system.

McHUGH J: It is not enough for you to show that there is a reasonably foreseeable risk of injury or that there is a reasonably practicable alternative. What you have to show is whether it was unreasonable for the employer to require this work to be done having regard to the risk of injury, the magnitude of that risk, the probability of it and the probability of it occurring and the cost of fitting a device to a commercial product.

MR NUGAWELA: I accept all of that, your Honours. We say where is the error identified in the learned trial judge’s approach? If anything, criticism can be made of the almost broad-brush approach taken by the honourable Full Court at various stages of the inquiry starting at the scope of the duty of care right through breach culminating in contributory negligence. There was no mandate for the honourable Full Court to intervene, less so to intervene in the way it did.

McHUGH J: But why. Its duty is to rehear the case and if it comes to the conclusion that there was no negligence it is entitled to set aside the decision. It does not have to look for error. As I pointed out to counsel yesterday, that was the proposition that Sir Garfield Barwick put forward in a series of cases in the early 1970s, particularly in Edwards v Noble and was rejected by this Court in Warren v Coombes.

MR NUGAWELA: Yes. The answer to that question, I suppose, your Honour Justice McHugh, is a rather abstract one and coming back to the circumstances of this particular case we say that there was nothing essentially wrong with the findings of fact that the learned trial judge made. The identifiable error of the Full Court, on the other hand, does not turn this into a Warren v Coombes case. They are equally competing probable inferences that were open to the honourable Full Court.

We say there was no warrant to substitute a subjective assessment of risk and of breach and of scope of the duty care in the idiosyncratic way that the Full Court did without regard to the principles that this Court has laid down in determining the scope – inadvertence. What the Full Court did was looked at this question of obvious risk divorced from any mention whatsoever, as your Honour Justice McHugh pointed out at the special leave application, any mention of the duty on an employer to take into account inadvertence on the part of an employee.

It is on that note of inadvertence that I would like to take your Honours to page 70 of the appeal book. Commencing at line 14 is the cross-examination of the appellant:

And you, as you were standing in the truck, presumably, would have to look all around you to – you’re looking forward and to the side and every way to make sure you could get all those boxes in?---Yes, I was restacking the boxes, yes.

And you were chatting to Reece when he came out with the boxes from time to time?---I don’t think so. I think we were – we were just trying to get the job done as quick as possible and there didn’t seem to be much time between really anything.

Right?---I was still struggling to get everything stacked . . .

Yes. And you would look around and say, “How many more?” you know. Would that be a natural thing to do?---I guess, and also – I’m not sure because it – we were just very busy. You know, it – constantly trying to get the job done quick because -

et cetera. At footnote 17, your Honours, we make reference to that passage in the transcript.

HAYNE J: Can I just take you back. The trial judge found breach in two respects. At 186, paragraph 25 his Honour says the breach was failing:

to ensure the plaintiff received a clear warning . . . warning could have been provided –

in either of two ways. One of those ways, the second was:

having a system whereby the person who lowered the platform –

in this case the offsider –

informed any person on the tray of the truck that the platform was about to be lowered.

So, the offsider says to the man on the back of the truck lowering the tray. In the Full Court the attack seems largely directed to the warning beeper but although there is reference in the grounds, see, for example, page 208, paragraph 19, line 45:

information from the person who lowered the platform –