Nelson v BHP Coal P/L[2000] QCA 505

SUPREME COURT OF QUEENSLAND

1. McPHERSON JA:  I have read and agree with the reasons of Muir J for dismissing this appeal. I do, however, wish to refer specifically to the appellant's application in the course of the appeal for leave to amend its defence in the action.

2. The defendant, as the appellant then was, went to trial before Cullinane J in the Supreme Court at Mackay on an amended defence to the action, which in para 4 pleaded as follows:

"It was an implied term of the contract of employment between the plaintiff and the defendant that the plaintiff would comply with the defendant's safe work practices and procedures and the instructions otherwise given to him to ensure that he was not exposed to any unreasonable risk of damage or injury in carrying out this work contract."

In giving his reasons for judgment his Honour said:

"It was contended on behalf of the defendant that the plaintiff was in breach of his obligations to carry out work in accordance with the work practice requirements of the defendant and that there was an implied term in the contract that if he did not do so he would not be entitled to recover damages for his employer's breach of its obligation towards him. No authority was cited for this proposition which appears to be very far reaching indeed. There is, in my view, no basis upon which any such term could be implied."

3. The form to which the appellant now wishes to amend para 4 of its defence is, or is based on, the following paragraph of the appellant defendant's written outline on appeal.

"10.Alternatively, insofar as the learned trial judge upheld the respondent's claim for breach of contract, the respondent was in breach of the implied term of his contract of employment with the appellant that he exercise reasonable care in the performance of his duties and/or that he comply with the appellant's instructions in relation to safe work practices."

It is, it will be noted, not in terms alleged in that the alleged failure by the respondent plaintiff to take reasonable care for his own safety should operate to preclude his right to recover damages for the defendant's breach of contract.

4. On behalf of the respondent plaintiff on appeal, Mr McMeekin SC opposed the application to amend. He submitted that, had it been cast in that form at the trial, he might have called another witness to give evidence on behalf of the plaintiff. Ordinarily, one might expect an assertion like that to be supported by an affidavit from counsel's instructing solicitor; but there had been no prior notice of the defendant's application to amend before it was made at the hearing of this appeal. In reply, Mr Keane QC submitted that the question was one of law and that consequently no prejudice could result from allowing the amendment even at the late stage at which it was made.

5. Whether a term, however arising, is or can be implied is, in my opinion, seldom a matter of pure law rather than one of mixed law and fact; and, even if it is one of law only, it is in my experience the practice to plead it. The practice is a convenient one, if for no other reason than that it might otherwise take the opposing party by surprise. Rule 149(1)(c) of the Uniform Civil Practice Rules confirms that a pleading must state "any matter that if not stated specifically may take another party by surprise". The word "matter" in that context is readily capable of comprehending a matter of mixed fact and law, and also, where appropriate, a matter of law alone. As to that, the rule adopted on appeal is clear. It is that:

"Where a point is not taken in a court below and evidence could have been given which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards."

See Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438. In so far as the question is really one of procedural fairness (as it was said to be by Gaudron J in Water Board v Moustakas (1988) 180 CLR 491, 501), it would in my opinion be procedurally unfair to permit the appellant on appeal to make the amendment that is now sought. The precise terms (including the provisions of any relevant industrial awards or agreements) on which the plaintiff was employed were not in evidence at the trial; and the respondent plaintiff may well have conducted his case differently at trial if the term had been pleaded in the form now put forward by the appellant. In addition, the defendant, does not have the requisite finding at trial that the plaintiff acted in breach of the term now being alleged.

6. That is to state briefly the first reason for rejecting the application to amend. The application does, however, also raise a broader issue involving the legal principles governing contracts of employment, on which I wish to make some comments. The obligation of a employer to provide an employee with a safe system of work is one which, it is accepted arises or is imposed under both the law of contract and the law of tort. For the most part, and in the general run of cases, it does not matter if a claim for damages for injuries sustained by an employee is pleaded in one form rather than the other. Both the breach and the damages awarded are the same, or were thought to be the same before the decision in Astley v Austrust Ltd (1999) 73 ALJR 403 decided that the relevant apportionment legislation has no application to such a claim when it is framed in contractual form. It now follows, or so it has recently been accepted in this State, that damages recoverable by a plaintiff employee in contract are not susceptible of reduction under that legislation on account of contributory negligence on the part of the employee. Cf Wylie v ANI Corporation Ltd [2000] QCA 314; Appeal No 4092 of 1999, 4 August 2000 and see Jones v Persal & Co [2000] QCA 386; Appeal No 7571 of 1999, 22 September 2000. The second of these two decisions accepts, if it does not in terms decide, that contributory negligence is capable, at least in some circumstances, of defeating outright the plaintiff employee's claim for damages for injury sustained in an industrial accident. In that instance, the term sought to be pleaded was different from that relied on here, and was accompanied by a claim to set off the damages alleged to have been sustained in consequence of the employee's breach of contract. In that instance too the requisite findings of negligence, breach and causation were made by the trial judge.

7. In the present case, it was urged that a similar conclusion would result if the amendment sought here were to be granted to permit the implied term to be relied on in answer to the plaintiff's claim for damages in this action. I am by no means persuaded that it has, or would have, that consequence. As a general proposition, it may be accepted that there is an implied term in a contract of employment obliging the employee to exercise reasonable care in the performance of his duties. In Century Insurance Co Ltd v Northern Ireland Transport Board [1942] AC 509, 518, it was broadly stated by Lord Wright as follows:

"The duty of the workman is to so conduct himself in doing his work as not negligently to cause damage either to the employer himself or his property or a third person or their property, and thus to impose the same liability on the employer as if he had been doing the work himself and committed the negligent act."

An instance of liability for breach of the employee's duty resulting in personal injury to the employer herself is afforded by Digby v General Accident Fire & Life Assurance Corporation [1943] AC 121, 141, where Lord Wright said that "an employee is generally as much liable to his employer if he causes his employer damage by negligence as is anyone else who does so".

8. I am inclined to think that, in what his Lordship said there, he was referring to breach of the general duty of care imposed by law rather than to breach of any implied term in the contract of employment; but, on the assumption that the two are for present purposes indistinguishable, it must be accepted that some term to that general effect forms part of many contracts of employment. See Lister v Romford Ice & Cold Storage Ltd [1957] AC 555; and A R Griffiths & Sons Pty Ltd v Richards [2000] 2 Qd R 116. Neither of those two decisions is, however, capable of assisting the defendant in the present case. Both were concerned with the implication of a term in the contract of employment that the employee would take reasonable care not to cause personal injury to others, for which the employer would be legally liable. Each involved a claim, made either in separate or the same proceedings, for indemnity or contribution against the employee in respect of the loss or damage sustained by the employer as a result of proceedings brought against him by a third person.

9. No claim of that character has been made against the plaintiff in this action. Nothing more is done here than to rely on the term, and allege breach of it, set up in the form alleged in para 4 of the amended defence or that put forward in para 10 of the defendant's written outlines on appeal. No attempt has been made to counterclaim against the plaintiff for the damages consisting of the economic loss alleged to have been sustained by the defendant employer as a result of a breach of that term, nor to rely on the breach by way of indemnity to defeat, or by way of set‑off to reduce, the plaintiff's claim for damages in the action. If the underlying purpose of the proposed amendment is to rely on breach of that term simply as a defence to the plaintiff's claim for damages, then it would be bound to take the form and be pleaded as a condition precedent to the employer's implied contractual obligation to provide a safe system of work. Nothing of that kind was suggested here, and, in answer to a question from Atkinson J in the course of the appeal, Mr Keane QC, disavowed reliance on any condition precedent of that kind.  It is, in any event, not the law that an employee may sue for breach of his employer's obligation of care only if he has not himself been guilty of any breach of his own implied contractual  obligation to take reasonable care not to cause loss to his employer.

10. There are two lines of authority that, to my mind, substantiate that conclusion. One is that it is not an answer or a defence for an employer, in an action by an employee for wages for work done, simply to show that the work has not been done well, or that it has been done negligently or without proper care. Where an employee is engaged to do work for a fixed sum, and has done it negligently, the employer may counterclaim for damages for breach of contract, or rely on that claim to diminish the employee's claim for wages. See Hart v Riversdale Mill Co [1928] 1 KB 176, 186; but it has never been suggested that mere proof of breach of the implied term resting on the employer to use reasonable care has the effect, without more, of defeating the plaintiff employee's claim for remuneration for the work done. At common law, service is, as Taylor J said in Re Association Dominions Assurance Society Ltd (1962) 109 CLR 516, 518, ordinarily a condition precedent to the right to receive wages; but it does not follow that the service must have been performed without any negligence on the part of the employee. If that is what it meant, many employees would never be paid for services rendered.

11. If breach of the implied term in an employee's contact of service does not automatically disqualify him from receiving his wages for his work even if imperfectly done, it must be very far from depriving him of the right to maintain a claim for damages for breach of the employer's implied contractual obligation to provide a safe system of work. Otherwise it would produce a form of forfeiture of the employee's right of action in consequence of a contractual breach or breaches regardless of their dimension, frequency or seriousness. Equity traditionally relieves against penalties of that kind, and it is therefore impossible to accept that such a result ensues by implication of law. In any event, it is plainly not the law that any breach of the employee's implied obligation to perform his duties with reasonable care has the effect, without more, of defeating his claim for damages for personal injuries. As Mr McMeekin for the plaintiff submitted on appeal, the employer's duty to take reasonable care for his employee's safety extends to anticipating foreseeable acts of negligence on the employee's part and of guarding against them. See McLean v Tedman (1984) 155 CLR 306, 312; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 309. It would be an odd state of affairs if, having determined that an employer is liable to an employee in damages for failing to avert acts of thoughtless, inadvertence or carelessness on the employee's part contributing to his own his injury, the same acts were held to deprive the employer of his claim for damages for breach of the employer's implied obligation to take reasonable care for his safety.

12. What the appellant defendant in effect seeks to do here is to cover these difficulties with the mantle of causation. There are, it is said, corresponding and reciprocal contractual duties on the part of the employer to take reasonable care for the employee, and on the part of the employee for the employer. When each is in breach of his duty in a way that combines to produce injury to the employee, the relative causative potency of each of those breaches must be compared to find out which of them is the more cogent or efficacious cause of the ensuing injury. But this, in my opinion, is to misconceive the nature of the underlying proposition that is being advanced. Competing questions of causation do not arise unless and until a breach of contract on the part of the employee is proved to have taken place. The essence or core of the submission is not simply that an employee is under an implied contractual obligation to exercise reasonable care; but that he is under obligation to take reasonable care not to injure himself in carrying out the duties of his employment; and, it may be necessary for completeness to add, to indemnify the employer against the consequences (including any claims by the employer himself) of his doing so. So far as I am aware, no such obligation is, or has ever been implied, either in contract or in tort, in an employee's contract. To my mind the suggestion that it exists is untenable. The reason why a plaintiff's claim in tort for damages for personal injury is diminished or defeated on account of contributory negligence is not because of any breach of a duty to the defendant to take care of himself but simply because he has in fact failed to take care of his own safety. See Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291.

13. No one has ever suggested that an employer has a cause of action in contract or in tort for damages for loss of servitium against his own employee, as distinct from someone else, for an injury negligently inflicted on the employee by the employee himself that causes loss to the employer. Whether, for example, an opera singer is in breach of contract by catching cold through negligently sitting in a draught is properly the stuff of law schools; it has no place in fixing liability for breach of an employer's duty to provide a safe system of work. In dismissing that question in Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154, 195, Lord Wright remarked that, in cases like Poussard v Spiers & Pond (1876) 1 QBD 140 of personal incapacity defeating a contract for personal service, "no investigation seems ever to have been suggested whether the party claiming to be excused was careful of his or her health". The matter was also mentioned in the speech of Viscount Simon LC at ([1942] AC 154, 165-166), and of Lord Porter, who said ([1942] AC 154, 202):

"Even today I imagine that an accidental injury to a contractor preventing performance, though resulting from his own negligence, would be regarded as one of the ordinary incidents of life rather than as caused by default of the party."

In the case of an employee, it is an incident of the contract of employment that it is the employer's duty to take reasonable steps to avert such acts of negligence on the part of the employee.

14. Joseph Constantine involved a question of contractual frustration by a self‑induced act. On that point, it must be read in the light of later decisions, including F C Shepherd & Co Ltd v Jerrom [1987] 1 QB 201; but there is nothing in any of these decisions to suggest that mere carelessness, even if it amounts to breach of an implied contractual obligation on the part of an employee, somehow neutralises the duty of the employer to provide a safe system of work. Partly no doubt for reasons of policy, the prevailing attitude is that the employer's duty to his employee is the dominant obligation. It took almost 150 years for legislation to remove the implication on which the doctrine of common employment rested. The courts should not be astute to make further contractual implications immunising employers from liability for failing to care for the safety of their employees. If in all this, there is an underlying need to reform the defects in the contribution legislation, there are ways of doing it other than by implying new terms into contracts of employment. Doing so will only have the effect of leaving the implied term behind long after the legislation in question has been reformed. In my opinion, an employee owes no enforceable general duty to his employer, whether in contract or in tort, to take reasonable care for his own safety, and is not liable to his employer for breach of it.

15. For these reasons, which are in addition to those given by Muir J for dismissing the appeal, I would refuse the appellant's application for leave to amend its defence. The appeal should be dismissed with costs.

16. MUIR J:  The respondent, a plant operator at the Goonyella/Riverside Mine, was injured on 11 April 1996 when, in the course of his employment with the appellant, a bulldozer being driven by him fell over the edge of an embankment. The respondent brought proceedings against the appellant in the Supreme Court claiming damages for negligence and/or breach of contract. After a trial of the action in Townsville, judgment was given in favour of the respondent in the sum of $237,138.17 and the appellant was ordered to pay the respondent’s costs to be assessed. The appellant appeals against that decision.

Relevant facts

17. The mine is an open-cut coal mine. Overburden is generally removed and coal excavated by means of a dragline. At relevant times, a dragline was operating from a relatively flat elevated area in the mine, described in evidence as a “bridge”, facing the edge of a very steep slope, at the foot of which was loose material intended to be removed by means of the dragline’s bucket.

18. The bucket is connected to the dragline by means of four steel cables, called “ropes”. Two ropes link each end of the dragline’s boom to its bucket. The ropes, running from the end of the boom connected to the main body of the dragline, were found to be fouling on materials on the slope, and the dragline operator wished to rectify the situation by creating a bench in the slope in front of the dragline. That involved cutting a terrace into the slope of a terrace with a vertical back wall and a flat base parallel to the floor of the bridge.

19. In order to create the bench (if that was to be done by a bulldozer rather than by the dragline itself), it was necessary to cut a road down from the bridge to the level on which the bench was to be formed. A report by the respondent’s mine manager to the Senior Inspector of Coal Mines dated 30 April 1996 asserted –

“The bench that the dozer was working on had been created by a previous shift, but it appears that it had been narrowed by the dragline operation. The dozer ran out of bench material and it appears that the right hand blade corner tip dug into the bank causing the dozer to pivot and slip over the end of the bridge. The dozer rolled several times a vertical height of about 40 m landing at the bottom of the pit on its tracks. … The investigation has identified that the task would have been more appropriately done with the dragline by walking the dragline back to dig off the limits with the bucket.”

The report went on to note –

“1. Misty rain may have created dusty windows affecting visibility.

2. A decision was made to perform the task with the dozer instead of the dragline.
3. The existing bench, cut by a previous shift was not wide enough to safely operate a dozer.
4. The operator did not inspect the area and identify hazards before staring the task.
5. The task was not planned before starting.”

Finding by the primary judge

20. The respondent gave evidence that the accident occurred at a time when he was doing work preparatory to starting on the work proper of creating a bench. He denied that he was working on the bridge, as stated in the accident report. The primary judge, who formed a favourable impression of the respondent and his credibility, concluded that the respondent was mistaken or confused about this part of his evidence. He observed –

“There is a body of evidence which derives from the marks of a dozer on the area of the bench which is consistent, it seems to me, only with an attempt to cut an area into the bench and a movement of the dozer backwards and then off the area of the bench with the machine overturning prior to falling a distance of some 47 metres before come to rest.”

21. He also found it likely that the respondent made an error of judgment in his assessment of the bench or in his capacity to effect a cut by the right side of the blade into the material on the slope “so as to have a sufficient width upon which to support the dozer and carry out the work”.

22. It was found that any person who consciously and deliberately put a dozer into “that area where the available surface would be inadequate for the dozer’s width … would be extremely foolhardy as it would be almost inevitable that somebody in those circumstances would face a risk of serious injury or death”.

The appellant’s contentions

23. Mr Keane QC, who led Mr Myers for the appellant, fastened on those findings to support an argument that the primary judge erred in finding that the effective cause of the respondent’s injury was the appellant’s failure to provide a safe system of work. Rather, it was argued, the respondent’s injury was caused by the very dangerous operation in which he had engaged, contrary to work practices established by the appellant. It was submitted that the respondent had made a conscious decision to cut out the bench in an extremely dangerous way and that the primary judge, implicitly, had made a finding to that effect.

24. Reliance was placed on the following passages from the judgment of Windeyer J, with whose reasons McTiernan, Kitto, Taylor and Owen JJ agreed, in Vossa v Tooth & Co Limited-^[1]

“The statement that the common law requires that an employer have a safe system of work for his employees means only that he must take reasonable care for their safety. It does not mean that he must safeguard them completely from all perils. ‘The ruling principle is that an employer is bound to take reasonable care for the safety of his workmen, and all other rules or formulas must be taken subject to this principle’.”^[2]

“For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment. To quote a sentence from one of the cases to which  counsel referred, ‘What is a “proper system of work” is a matter for evidence, not for law books’: per Denning LJ in Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 at p 760.”^[3]

25. In reliance on the principles so expressed, it was submitted that an employer cannot be held negligent where an employee is instructed to perform an ordinary task in an ordinary way in accordance with a reasonably safe system of work provided by the employer, and the employee is injured as a result of taking an extraordinary risk entirely outside the ordinary exigencies of the task in which he was engaged.

26. Alternatively, it was contended that the primary judge erred in upholding the respondent’s claim for damages for breach of contract. The contention in this regard is that the respondent was in breach of a term to be implied in his contract of employment with the appellant that he exercise reasonable care in the performance of his duties and/or that he comply with the appellant’s instructions in relation to safe work practices. The argument continues that, in contract, an employer owes a duty to take reasonable care for the safety of his or her employee; but the employee also owes a duty to the employer to take reasonable care and to exercise reasonable diligence in the performance of his or her work for the employer.^[4] It was urged that the real cause of the accident was the respondent’s breach of his contractual obligations to the appellant, and that in order to succeed in a claim based in contract, it was insufficient for the respondent to show merely that the appellant’s wrongful conduct was a cause of the respondent’s loss.

Consideration of the appellant’s argument in respect of the negligence findings

27. The appellant’s case in tort proceeds on an erroneous understanding of the primary judge’s findings. The judge found the respondent a witness of credit, although, as I have noted earlier, rejecting his evidence as to the circumstances in which the accident occurred. He said –

“I formed a positive impression generally of the plaintiff. He is a man who has worked for many years in the mining industry and he struck me as a genuine person … I do not regard the plaintiff as having deliberately attempted to mislead the Court, rather, I think that he is mistaken or confused about matters. Shortly after the incident he had no real recall of event (sic) when speaking to Mr Southey.”

(Mr Southey was the safety manager at the mine at the time of the respondent’s accident).

28. Referring to the placement of the dozer in an area “where the available surface would be inadequate for the dozer’s width”, the primary judge said –

“On my assessment of him, I think it inconceivable that he would have done so consciously and deliberately. … Rather, I think, it is likely that he made an error of judgment in his assessment of the bench or in his capacity to effect a cut by the right side of the blade into the material so as to have a sufficient width upon which to support the dozer and carry out the work.”

29. At the forefront of the appellant’s argument was the alleged folly in the respondent’s placing a dozer on a ledge insufficiently wide to afford it proper support. Also relied on to support the submission that the respondent’s conduct was reckless and outside “the ordinary exigencies of” a bench cutting operation were assertions that –

1. the respondent had been instructed in safe work practices which required him to leave a safety margin of earth or other material outside the tracks of the bulldozer when conducting such benching activities;

2. bench cutting activities were ordinary functions of bulldozer drivers at the mine, no different in method or degree of risk from other operations conducted by bulldozers at the mine as a matter of course;

3. contrary to established practice, the respondent failed to inspect the site of his proposed benching work before embarking on it;

4. the respondent had admitted that for a bulldozer operator to put his bulldozer in a position where the available surface was not sufficiently wide to support it [as the respondent did] was “foolhardy in the extreme”.

30. The appellant’s case in this regard is weakened somewhat by its own accident report which notes that the bench from which the bulldozer fell had been “cut by a previous shift”. The evidence is inconclusive as to whether the bench had been cut by a bulldozer or by the dragline. The primary judge made no findings on the point and Mr Southey, the author of the accident report, was unable to express an opinion one way or the other.

31. The accident report, however, provides some support for the conclusion that the bench was cut by a bulldozer rather than a dragline, and was reduced in width as a result of the movement of the dragline’s ropes. The evidence of Mr Popp, the appellant’s dragline superintendent at the mine at relevant times, also supports that conclusion. If, as seems probable, the bench had been started in this way, there was some justification for the respondent’s proceeding onto it, without prior inspection, to continue the work commenced in the prior shift.

32. The accident report, as mentioned earlier, asserts a failure to inspect on the part of the respondent. However, the respondent gave evidence that he had made a visual inspection. He said that it was raining at the time of his inspection, the ground was slippery and that it was “just like walking on ice”. There was no challenge to this description of prevailing conditions on the part of the respondent.

33. There were two eyewitnesses to the accident, apart from the respondent, but neither was called to give evidence. One of those witnesses was subpoenaed by the appellant and, although present at the court for two days of the trial, was not called. His Honour expressly accepted the evidence of the respondent that it was raining prior to the accident, and held that there was some limitation to his vision to the lower left. He thus accepted, by necessary implication, that the respondent had a recollection of some facts and circumstances leading up to the accident.

34. The evidence does not support the view that the operations on which the respondent was engaged at the time of the accident were strictly routine. An engineer called in the respondent’s case expressed the opinion that the presence of the dragline restricted the working area of the bulldozer and increased the risk involved in benching beyond that which would have existed in the absence of the dragline. Mr Atkinson, a former dragline operator at the mine, said that using a bulldozer for benching in the circumstances under consideration involved a risk because of the possibility that the teeth of the dragline bucket had disturbed the material to be worked over to form the bench. He said, in effect, that any hazards may well be hidden and difficult, if not impossible, to discover by visual inspection. The respondent explained that, unlike the ground encountered in normal bulldozer operations, the ground in front of the dragline was compacted as a result of movement of the dragline.

35. The fact that such benching operations, in the great majority of cases, were undertaken by dragline rather than bulldozer, also provides some support for the respondent’s case.

36. As to the admission referred to in par [29](d) above, the respondent did not agree that he knew or ought to have known that the bulldozer was in a position where it lacked adequate clearance and support. The respondent merely agreed that, if the facts were as stated by the cross-examiner, his conduct could be regarded as “kamikaze stuff”. It was put to the respondent in cross-examination that in cutting out the bench “as you progressed down your left-hand track was in fact suspended partially over the pit”. There was no evidence to support that assertion. The evidence was that the bench tapered from about nine metres wide at its commencement, seven metres after about three metres, and then to four metres over a final section of about 3.5 metres. The width of the bulldozer was not established with any exactitude. In cross-examination, the respondent did not demur from the proposition that it was “something in the order of six, seven metres wide”. Also in cross-examination, the engineer called by the respondent said he was assuming on “overall width” of about six metres”. No other dimension was suggested to him. Mr Popp volunteered that the bulldozer blade was “about 6.44 metres wide”.

37. Mr Armstrong, the dragline operator, gave the following account on the day of the accident –

“Ken cut away dirt for shoe clearance then started cutting a bench in the dig face for rope clearance. After a few dozer pushes the blade seemed to hook into something and the tracks spun and the dozer swung to the left. I called on the two-way and said ‘Look out Ken’. I thought Ken replied but I am not sure of the words.

Ken tried to back the dozer out. The left track turned and the dozer slid sideways and rolled to the bottom.”

38. Two other eyewitnesses gave this account on the same day –

“Was in DRE29 cab. Saw Ken cutting dirt away from in front of DRE29. Saw the dozer push four or five blades forward. Saw the dozer skid a bit on the edge.

Jim Armstrong called Ken on the radio and told him to watch out. Ken replied ‘right, mate”, the dozer was stopped at this point. Ken tried to reverse and the dozer started to slide and then rolled.”

39. There is no suggestion in these accounts of any perception of danger on the part of any of the three observers resulting merely from the width of the ledge on which the bulldozer was operating. Nor does either account make mention of any obvious lack of width on the bench. Mr Armstrong became alarmed only when the bulldozer veered suddenly from its normal course.

40. It is worth noting also that the evidence supports the conclusion that the part of the bench from which the bulldozer toppled, may well have been reduced in width through the bulldozer’s movement over its edge. If the bulldozer was working in an area in which the floor of the bench was no wider than the bulldozer tracks, it is surprising that the bulldozer could swing in the manner observed by Mr Armstrong, without part of it overhanging the ledge, and without this dramatic occurrence being observed and remarked upon by the eyewitness.

41. There is thus ample support for the primary judge’s finding that the accident happened as a result of an error of judgment on the part of the respondent.

Principles to be applied.

42. The appellant’s duty, as the respondent’s employer, was –

“… that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risk of injury. The degree of care and foresight required from an employer must naturally vary with the circumstances of the case: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25, per Dixon CJ and Kitto J.”

43. That passage was referred to with approval in the joint judgment of Mason, Wilson and Dawson JJ in Bankstown Foundry v Braistina.^[5] In that judgment, it was observed that it had long been recognised that what is a reasonable standard of care for an employee’s safety is “not a low one”. The employer’s obligation is to “establish, maintain and enforce such a system, that is, a safe system of work”.^[6]

44. In Wyong Shire Council v Shirt,^[7] Mason J, with whose reasons Aickin J agreed, said –

“The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

45. One factor to be taken into account in undertaking the balancing exercise referred to in the above passage from the judgment of Mason J is the defendant’s duty to provide a safe system of work.^[8]

46. Further, it is well established that the employer must take into account the possibility that an employee to whom a duty of care is owed might fail to take proper care for his or her own safety.^[9]

Application of principles of law to the facts – liability of the appellant in fact

47. The finding that draglines were normally used to perform the task on which the respondent was engaged at the time of his accident was not challenged. Nor was the finding that the respondent had only carried out such work on three or four occasions during his 14years employment with the appellant.

48. As the primary judge pointed out in his reasons, the appellant did not contend that the use of the dragline would not have obviated the risk to the respondent posed by the benching operation, or that there was any difficulty in the way of using the dragline to make the bench.

49. It cannot be doubted that the work of cutting out a bench in front of a dragline posed a risk of injury to a bulldozer operator. The likely injury in the event of a foreseeable mishap was serious injury or death. Such a risk could readily have been averted by following the practice, already in place, of having the bench cut by the dragline. A reasonable employer in the position of the respondent undertaking the balancing exercise discussed in Wyong v Shirt would have concluded, inevitably, that the cutting out of the bench should be done by the dragline. For these reasons, the challenge to the primary judge’s finding of breach of duty on the part of the appellant fails.

Contributory negligence

50. The appellant submitted, in the alternative, that an apportionment of 50 per cent against the respondent was appropriate, having regard to the degree of his personal culpability.

51. The principles relevant to a determination of the question of contributory negligence in the circumstances now under consideration are expressed in the following passage from the judgment of Mason, Wilson and Dawson JJ in Bankstown Foundry Pty Ltd v Braistina - ^[10]

“A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose  himself to risk of injury.  But his conduct must be judged in the context of the finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks.  The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage: see Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at pp 493-494.  In Podrebersek, the Court said:

‘The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie. of the degree of departure from the standard of care of the reasonable man . . . and of the relative importance of the acts of the parties in causing the damage . . .   It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.’”

52. Having regard to the matters discussed earlier, I am unable to find any error in the primary judge’s finding that the accident resulted from an error of judgment on the part of the respondent. A number of factors appear to have combined to lead the respondent into error. He was presented with a partly cut bench which, at its commencement, was wide enough to be safely worked. It was raining, and the ground wet and very slippery. The respondent’s ability to make a full preliminary inspection of the site was thus impeded. His side vision in the bulldozer was restricted. The bulldozer blade seems to have struck a large rock and this, possibly assisted by the slippery conditions, caused the bulldozer to spin markedly off course.

53. The proper characterization of respondent’s conduct is mere misjudgment. No contribution is called for.

54. Having regard to the above conclusion, it is not necessary to address the arguments advanced by Mr Keane QC in relation to breach of contract or the appellant’s application to amend the pleadings which is discussed by McPherson JA in his reasons.

55. I agree that the application to amend should be refused, generally for the reasons given by his Honour. In particular, I am of the view that the respondent’s case may have been conducted differently and other evidence may have been adduced had the issue raised by the amendment been a live one on the trial.

56. Like McPherson JA, I am not persuaded that an employee’s duty of care to his or her employer would normally encompass an obligation on the employee to take care of the employee’s own safety. There is no direct authority for such a proposition.^[11] The existence of such a duty does not sit comfortably with the development of the law in relation to contributory negligence through cases such as McLean v Tedman^[12] and Bankstown Foundry Pty Ltd v Braistina.^[13] However, I do not intend to suggest that, if in a particular case the tests for an implied term propounded in Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales^[14] were satisfied, such a duty could not arise.

57. I would order that the appeal be dismissed, and that the appellant pay the respondent’s costs of and incidental to the appeal to be assessed.

58. ATKINSON J:  For the reasons given by Muir J, I agree that the appeal should be dismissed with costs.