New South Wales

Court of Appeal CITATION : TNT AUSTRALIA PTY LIMITED v CHRISTIE &

2 ORS; CROWN EQUIPMENT PTY LIMITED v CHRISTIE & 2 ORS; MANPOWER SERVICES (AUST) PTY LIMITED v CHRISTIE & 2 ORS [2003] NSWCA 47

HEARING DATE(S) : 11, 12 June 2002JUDGMENT DATE : 12 March 2003JUDGMENT OF : Mason P at 1; Davies AJA at 149; Foster AJA at 174 DECISION : See paras 145-8

CATCHWORDS : Negligence - non-delegable duty of care - labour hire business / "body-hire" company - duty to take reasonable care - where relationship between parties analogous to employer/employee - Safety of plant/machinery - employee training in safety procedures - repair and maintenance - inference of negligence - implied warranty of fitness for purpose - contractual indemnity. (D)

LEGISLATION CITED : District Court Rules, Part 28 r8(3), r9 Supreme Court Act 1970, s75A(10) Law Reform (Miscellaneous Provisions) Act 1946 s59(1)(c) Workers Compensation Act 1987 s151ZA Occupational Health, Safety and Welfare Act 1983 s15(1)

CASES CITED : Australian Iron and Steel Limited v Krstvski (1973) 128 CLR 668 Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 99 ALR 735 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Clark v Esanda Ltd [1984] 3 NSWLR 1 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Davie v New Merton Board Mills Limited [1959] AC 604 Derbyshire Building Co Pty Ltd v Becker (1961) 107

CLR 633 Drake Personnel Ltd v WorkCover Authority of New South Wales (1999) 90 IR 432 Fennell v Supervision and Engineering Services Holdings Pty Limited (1988) 47 SASR 6 Ferguson Construction Company Ltd v Hargreaves and Mayhead Brothers Ltd [1973] 1 NZLR 634. Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 Harrison v South Clifton Coal Mining Co Ltd (1963) SR(NSW) 689) Helicopter Sales (Australia) Pty Ltd v Roto Work Pty Ltd (1974) 132 CLR 1 Jones v Dunkel (1959) 101 CLR at 298 Kingshott v Goodyear Tyre and Rubber Co. Australia Limited (1987) 8 NSWLR 707 Kondis v State Transport Authority (1984) 154 CLR 672 Lepore v State of New South Wales (2001) 52 NSWLR 420 Mummery v Irvings Pty Limited (1956) 96 CLR 99 Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 New South Wales v Lepore [2003] HCA 4 Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 Oxley County Council v Macdonald [1999] NSWCA 126 Piening v Wanless (1967-1968) 117 CLR 498 Rae v The Broken Hill Pty Co Ltd (1957) 97 CLR 419 Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121 Scott v Davis [2000] 175 ALR 217, [2000] HCA 52 Smith v South Wales Switchgear Co Ltd [1978] 1 WLR 165 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Taylor Woodrow Property Co of Australia Pty Ltd v Coles Myer Ltd (1999) 9 BPR 17,449; [1999] NSWCA 204 Vozza v Tooth & Co Limited (1964) 112 CLR 316

PARTIES :

TNT AUSTRALIA PTY LIMITED v Brett Kenneth CHRISTIE & 2 ORS; CROWN EQUIPMENT PTY LIMITED v Brett Kenneth CHRISTIE & 2 ORS; MANPOWER SERVICES (AUST) PTY LIMITED v Brett Kenneth CHRISTIE & 2 ORS

FILE NUMBER(S) : CA 40473/01; 40474/01; 40414/02COUNSEL : M Holmes QC/ G Parker (TNT)

J D Hislop QC/ M J Ward (Crown) L V Gyles (Manpower) W P Kearns SC/ H Kelly (Christie & 2 Ors)

SOLICITORS : Ebsworth & Ebsworth (TNT) Pricewaterhouse Cooper Legal (Crown) Hunt & Hunt (Manpower) Malouf Solicitor (Christie & 2 Ors)

LOWER COURT JURISDICTION :

District Court

LOWER COURT FILE NUMBER(S) :

DC 250/00

LOWER COURT JUDICIAL OFFICER :

Delaney DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40473/01 CA 40474/01 CA 40414/02 MASON P DAVIES AJA FOSTER AJA Wednesday 12 March 2003

TNT AUSTRALIA PTY LIMITED v BRETT KENNETH CHRISTIE & 2 ORSCROWN EQUIPMENT PTY LIMITED v BRETT KENNETH CHRISTIE &

ANOR MANPOWER SERVICES (AUST) PTY LIMITED v BRETT KENNETH

CHRISTIE & 2 ORS

Facts: The plaintiff (Christie) was employed by an employment agency, Manpower Services (Australia) Pty Ltd. Manpower assigned the plaintiff to work at a brewery operated by TNT. The plaintiff was injured when a walk-behind forklift (a "pallet jack") he was using to pick up beer orders malfunctioned and moved backwards over his foot. The pallet jack was owned and serviced by Crown Equipment Pty Ltd and leased to TNT. The plaintiff sued both Manpower and TNT. At trial, Delaney DCJ found that Manpower owed a non-delegable duty of care, which it had breached by "failing to adequately instruct and provide proper assistance to the plaintiff in the performance of his duties and failing to properly inspect, maintain and

provide appropriate equipment for the plaintiff to undertake this [sic] task." He also found that TNT "owed duties to the plaintiff analogous to the duties of an employer." Cross-claims: In the first cross-claim, brought by Manpower against TNT, Delaney DCJ held that damages be apportioned 75% to TNT; 25% to Manpower. In the second cross-claim, brought by TNT against Crown, he apportioned the damages 50% to Crown and 50% to TNT. Appeal: Three appeals were heard from TNT, Manpower and Crown. Held, dismissing appeals by TNT against the plaintiff and Manpower; and by Manpower against the plaintiff and TNT; and upholding TNT's appeal against Crown Mason P: (1) A non-delegable duty of care will be imposed on categories of persons regardless of personal fault on their part giving rise to the plaintiff's injury, as long as the plaintiff proves that damage was caused by lack of reasonable care on the part of someone (not necessarily the defendant) within the scope of the relevant duty of care [47] (Lepore v State of New South Wales (2001) 52 NSWLR 42; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 52; Kondis v State Transport Authority (1984) 154 CLR 672; Scott v Davis [2000] 175 ALR 217) (a) TNT and the plaintiff were in a position analogous to that of employer and employee, giving rise to a non-delegable duty of care upon TNT. [41] and [45](Ferguson Construction Company Ltd v Hargreaves and Mayhead Brothers Ltd [1973] 1 NZLR 634; Kondis v State Transport Authority (1984) 154 CLR 672). [Foster AJA concurring] The primary question when determining duty is whether the employee's injury has resulted from some failure on the part of the employer to take reasonable care for the employee's safety [49] (Rae v The Broken Hill Pty Co Ltd (1957) 97 CLR 419 at 430 per Taylor J; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1). The duty of care personally owed to the employee extends to the safety of plant. [50] (Harrison v South Clifton Coal Mining Co Ltd (1963) SR(NSW) 689; Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121) . An employer's duty of care with respect to plant and equipment extends to the exercise of reasonable care in its maintenance and repair, although it does not extend to defects in plant that the employer buys from a reputable vendor or manufacturer, where the defects were the product of the manufacturer's negligence. [55] to [61] (Davie v New Merton Board Mills Ltd [1959] AC 604; Kondis v State Transport Authority (1984) 154 CLR 672; Lepore v State of New South Wales (2001) 52 NSWLR 42) (b) An employer who operates a labour hire business does not abdicate its nondelegable duty simply because its employees are sent to work for a client. [63 to 70] (Drake Personnel Ltd v WorkCover Authority of New South Wales (1999) 90 IR 432). [Foster AJA concurring] (2) Manpower and TNT breached their respective non-delegable duties of care

to the plaintiff by virtue of Crown's negligence in failing to detect and/or repair the cause of the problem with the pallet jack that had been reported two weeks before the accident. [83] and [92] [Foster AJA concurring] (3) The relationship between TNT and Crown and the arrangements for supply and maintenance (on demand) of specialist equipment was evidence of an implied warranty that the pallet jack would be reasonably fit for its intended purpose. [113] Crown's breach of warranty, particularly in not fixing a recurring problem that was capable of detection and correction at the time when it was first reported entitles TNT to full contractual indemnity from Crown. [114] and [115] [125] [Foster and Davies AJJA concurring] (4) There was no substantial wrong or miscarriage occasioned by Delaney DCJ's ruling rejecting Crown's application to permit reliance on an expert witness report by abridging the time, because the report did not advance Crown's case very far. [142] Davies AJA: (1) TNT had a duty to exercise reasonable care and skill in the selection, maintenance or repair of the pallet jacks. [153] (Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121) [Foster AJA concurring] (2) The scope of this duty involved an obligation upon TNT to ensure that the pallet jacks provided for employees' use were in good order and condition. TNT had a duty to check on the quality of Crown's maintenance and repair and to ensure that complaints about pallet jacks were dealt with adequately. [155] (Kondis v State Transport Authority (1984) 154 CLR 67) [Foster AJA concurring] (3) TNT breached its duties in that: (a) There were no training procedures in place at TNT for instructing employees as to the safe use of the pallet jacks. [156] to [160] [171] (b) TNT did not check that the work of Crown's technicians was properly done. [167] and [170] Foster AJA: (1) As there was no evidence that additional training in the operation of the pallet jacks would have prevented the accident occurring, any claim against TNT or Manpower based on alleged inadequacies in the plaintiff's training must fail. [185] (2) However, an inference of negligence can be drawn in that: (a) Crown's inspection and repair of the pallet jack prior to the accident was inadequate (b) TNT had a duty to test the machine after its service to ensure that the malfunction had been remedied. (Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121) [205]

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40473/01 CA 40474/01 CA 40414/02 MASON P DAVIES AJA FOSTER AJA Wednesday 12 March 2003

TNT AUSTRALIA PTY LIMITED v BRETT KENNETH CHRISTIE & 2 ORS

CROWN EQUIPMENT PTY LIMITED v BRETT KENNETH CHRISTIE & ANOR

MANPOWER SERVICES (AUST) PTY LIMITED v BRETT KENNETH CHRISTIE & 2 ORS

JUDGMENT

1 MASON P: Three appeals and a cross appeal were heard together.

2 On 3 July 1997 Mr Christie (hereafter "the plaintiff") was injured in the foot as the result of a faulty pallet jack. At issue in these proceedings are the rights of the plaintiff to recover damages against two parties that he sued as concurrent tortfeasors and the rights of one of those defendants to recover indemnity and/or contribution from its co-defendant and a third party.

3 The plaintiff was employed by Manpower Services (Australia) Pty Limited (hereafter "Manpower"), which was described as an employment agency or a "body hire company".

4 Manpower sent the plaintiff to work at the Lidcombe premises of TNT Australia Pty Limited ("TNT") where TNT conducted a brewery. The plaintiff had been assigned there for almost nine months at the time of the accident. He used to report to the TNT warehouse manager who gave him his daily duties. He worked in an area called the bull ring, alongside four permanent employees of TNT. The plaintiff was the sole casual worker, but his duties did not differ from those of his fellow workers. His evidence, which was accepted by the primary judge Delaney DCJ, was described as follows in the judgment (Red 50):

The plaintiff agreed that it was [TNT] its servants or agents that directed him what time to come to work, what work he had to do each day, what hours he would work and the specific jobs that he

would have to do. He agreed that there was a person who was in charge of the bull ring where he worked. This person was Stan. Stan was an employee of TNT. The plaintiff agreed that if he had any problems with the equipment he would report it to his leading hand or Stan or John. He said that with the forklift problem he recalled reporting it to Mr Anderson [of TNT]. He said that it was standard procedure that he would report any problems to either Stan or the warehouse manager. The worksheets were prepared by TNT and he would take his daily directions from [TNT].

5 Having assigned the plaintiff to work at TNT's brewery, Manpower thereafter paid his wages when due. A Manpower representative came to the brewery once a week. He or she was aware of the general nature of the plaintiff's work, but the visits were primarily concerned with administrative matters (CB 29, 36).

6 The plaintiff's job was to pick up cartons of beer for liquor outlets and to have them ready to meet orders for the next day's run. There were eight pallet jacks available for use. The plaintiff would use a jack to pick up the orders, put them onto pallets and then drop them off to be wrapped ready for delivery.

7 A pallet jack is a type of forklift operated by a person standing behind it who operates the control switches. Unfortunately there is no picture of a jack in the evidence, nor was any attention paid at trial as to the details of its specification and working. No expert evidence was led as to the operation of the jack or the precise explanation for the malfunction which contributed to the plaintiff's injury. Much was left to inference. The supposedly defective handle was replaced soon after the accident.

8 The jack was owned by Crown Equipment Pty Ltd ("Crown"). It was one of eight leased to TNT under a standard form Rental Agreement whose terms were printed on the back of an invoice raising a weekly rental charge. There was also an arrangement with Crown (probably contractual) under which the jacks were serviced and repaired from time to time.

9 The accident occurred when the plaintiff had put the pallet jack into position under a pallet holding 30 cartons of Tooheys Blue stubbies. He put the jack into reverse gear. He moved away to check the paper work, leaving the brake on by putting or keeping the mast or handle of the jack in an upright position.

10 Only if the handle was pushed down should the vehicle have moved. Unfortunately, the jack moved backwards over the plaintiff's foot. This was unexpected and contrary to the proper working of the jack, despite the plaintiff having checked the brakes at the start of his shift that day, and despite the jack having worked properly for 30-40 minutes before the accident (Red 34V, 37L).

11 This was not the first time that the particular jack had malfunctioned, although the nature of the earlier problem as it manifested itself and as reported both to TNT and Crown remains a live issue in the appeal.

12 It is undisputed that Crown was a reputable servicing firm whose personnel used to attend the TNT premises weekly to provide regular on-site servicing of the jacks. In addition, Crown service technicians would come as often as they were summoned by TNT to attend to particular problems. If a jack was out of order, TNT placed a sticker on it indicating either "Do not use machine - out of order" or "Danger" and Crown would be summoned to repair the machine. If the machine could not be fixed on site then it would be removed and (if necessary) replaced with an alternative.

13 The matters I have recounted thus far were common ground or incontrovertibly found by the primary judge. Beyond them lie factual issues critical to these appellate proceedings. They include the following:

· The precise nature of the malfunction that caused the accident. · Whether a similar problem had arisen previously in relation to the particular jack. · If so, whether it had been brought to the attention of the plaintiff's superiors in TNT. · Whether that problem had previously been drawn to the attention of Crown repairmen, either by the plaintiff or by someone at TNT. · Whether a Crown repairman had purported to fix the problem at a visit to TNT on 23 June 1997. · Whether the plaintiff ought to have received better instruction in the operation of the jack from Manpower and/or TNT.

14 As often happens, the criticality of some of these issues surfaced for the first time in the appeal, sometimes only as the hearing of the appeal progressed. I mention this in recognition of the difficulties facing a busy trial judge who would not have had the same level of assistance as afforded to this Court.

15 At least some of these issues are addressed by findings in the judgment under appeal, but the scope of such findings is itself a matter of dispute. Some of those findings are in turn challenged in the appeal, particularly by Crown.

16 As regards the pallet jack that caused the plaintiff's injury, it was established that (in addition to normal weekly servicing) there were two specific service calls in the month preceding the accident. They are evidenced by service job cards (CB 139-142).

17 The service job card for 4 June 1997 shows the attendance of a Crown serviceman who performed over five hours labour on the jack over that and the next two days. Various parts were replaced, including a safety reverse switch. The service report records:

Arrived on site to find unit is stuck in forward. Safety reverse switch has been hit breaking switch. Renewed switch and will return. Returned on 5/6/97. Carried out PMP service as per service sheet. Found unit has intermittent 3rd speed. Renewed damaged wiring harness and handle bushes. Cleaned all POD

components - Adjusted directional switches. Greased all pivot points. Unit is now lowering slow. Will return. Returned on 6/6/97. Removed battery to get at flow control valve. Renewed valve. Tested for leaks. Tested all functions of unit.

18 The service job card for 23 June 1997 records one hour of labour by a serviceman other than the one who had previously attended. There is no mention of any parts being replaced. The service report reads:

The unit had no 3rd speed sometimes. Ran test. Could not get it to fault. Found a lose (sic) wire tightened it up. The unit is going OK at this time.

19 The pallet jack was examined on the day of the accident (after the accident) by a WorkCover safety inspector (K Lacey), a Manpower representative (Alison Watts), two people from TNT (Dennis Anderson and Colin Whitehead) and representatives of Crown (Kerry Crameri and Savoir Vassallo).

20 Only Mr Anderson and Mr Vassallo gave evidence.

21 Both Manpower and TNT filed accident reports with WorkCover. The Manpower Accident Report (signed by Alison Watts) states: "Fork lift malfunctioned". The TNT Accident Report (signed by Dennis Anderson) identified the matter that led to the injury as "Broken wire on micro-switch in hand controls" . Mr Anderson's report also records that the machine was removed from site and returned to Crown. In addition it states:

All machines standardised. Training programme conducted for all load pickers on 9/7/97.

22 The WorkCover safety inspector recorded in a short inspection report dated 3/7/97:

There was no evidence of any unserviceability that could be observed. The physical difference of this machine to others in use being the shape of the control arm. This machine was ... removed from site for further investigation.

23 The following day Crown prepared a service job card relating to this attendance and work obviously done back at Crown's premises. The service report is dated 4-7-97 and (to the extent that it is legible) it reads:

Arrived on site and located above unit. Reported unit involved in accident. Power unit had run over operator's leg. Also reported unit had intermittent no 3rd speed. Checked over unit. Brakes operating OK. 3rd speed operation was intermittent and 3rd speed contractor not pulling [illegible] in. Checked control circuit. B.V. positive present at 3rd speed. [illegible] not present.

Checked time delay [illegible] output OK at [illegible]. Found high resistance joint OK. Conductor coil to be repaired. All other functions operating OK. Returned and fitted newer style control handle to unit as requested by Work Cover to be unit in line with other unit on site. Tested all functions operating OK at this time. Handle taken off another Rental unit in Plant 5.

Issues at trial and key findings

24 The plaintiff sued both Manpower and TNT. He pleaded that he was employed by Manpower as a labourer to work at the factory premises occupied by TNT; and that he was required by both defendants to work at TNT's premises operating a Crown Walk Behind forklift. The particulars of negligence drew no distinction between the defendants and they included allegations of failure to instruct; provision of a defective forklift; failure to properly inspect, maintain and service the forklift and failure to ensure that the forklift was fitted with an appropriate and safe stop mechanism in order to prevent it reversing.

25 Judge Delaney made a number of preliminary findings to which it will be necessary to return. He expressed his dispositive findings in the following terms (Red 59-60):

Findings on the evidence. I make the following findings: * I find that the plaintiff was injured in the course of his employment on 3 July 1997. * I find that the first defendant [Manpower] owed the plaintiff a non-delegable duty of care. * I find that this duty of care was breached by the first defendant failing to adequately instruct and provide proper assistance to the plaintiff in the performance of his duties and failing to properly inspect, maintain and provide appropriate equipment for the plaintiff to undertake this [sic] task. Accordingly there will be a verdict for the plaintiff against the first defendant. I find that the second defendant [TNT] owed duties to the plaintiff analogous to the duties of an employer. I make this finding on the basis of the daily control and instruction that the second defendant gave to the plaintiff. I note the evidence which was given by the plaintiff about the operation of the pallet forklifts. I note that these were in a condition where they were, so far as the plaintiff was concerned, regularly requiring service. I find that the second defendant had a duty to provide forklifts which effectively operated which were without fault of the type which led to the injuries suffered by the plaintiff. The second defendant should have foreseen the likelihood that the plaintiff could be injured if the machines which it had hired from the cross-defendant were not working efficiently and correctly and

required continuous maintenance. In those circumstances notwithstanding the absence of expert evidence on the question, it is only common sense that the second defendant should have taken steps to acquire a system of work which would have in the circumstances protected the plaintiff from the risk of injury which came home in the case from a faulty pallet jack. I find that the second defendant breached the duty of care that it owed to the plaintiff.

26 There were two cross-claims.

27 In the first, Manpower sought indemnity or contribution from TNT, relying on s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (the Act). Judge Delaney concluded (Red 61):

There is no doubt that the second defendant had the day-to-day conduct and care of the system of work. It gave the specific directions to the plaintiff as to the work to be done, the hours of work and the nature of it. Whilst it is true that the first defendant has the non-delegable duty of care and did attend the premises on a weekly basis, there was no specific evidence other than that given by the plaintiff about what the first defendant actually did when it went to those premises other than speak to the managers. In those circumstances I have reached the conclusion that on the cross-claims: the first defendant against the second defendant, the first defendant should recover contribution from the second defendant in the proportion twenty five percent to the first defendant and seventy five percent to the second defendant and the second defendant 25% from the first defendant.

28 In the second cross-claim, TNT sought indemnity from Crown based upon breaches of both the rental and servicing agreements (Red 13). It was alleged that Crown breached the implied term of the Rental Agreement to the effect that the forklift would be fit for the purpose for which it was intended and would not malfunction such as to cause injury to workers at TNT's premises. As regards the maintenance agreement, it was pleaded that Crown had failed to carry out repairs in a proper and workmanlike manner and had failed to effect a repair of the defects which had been notified. The second cross-claim also claimed indemnity and/or contribution pursuant to the Act, based upon Crown's liability to the plaintiff in negligence.

29 Judge Delaney upheld the contractual and statutory claims albeit in terms of such paucity that Crown contends inter alia that the judgment is deficient for want of exposure of reasons. There is also the difficulty that the contractual claim resulted in apportionment as distinct from indemnity.

30 His Honour stated (Red 61-63):

I now turn to the cross-claim by the second defendant against the cross-defendant, Crown Equipment. Mr Parker submitted that in relation to this cross-claim I ought have regard to the fact that the cross-defendant was in the business of hiring forklift equipment, that the cross-defendant was the expert and owned the equipment and that the cross-claimant was not permitted to service the equipment itself. Mr Parker said that the cross-claimant had a system in position whereby faulty equipment was removed from service and the system depended on the non-negligent performance of the contract by the cross-defendant. It was his submission that the measure of culpability of the cross-defendant outweighed that of the cross-claimant in respect of the plaintiff's injuries and he said it followed that the cross-defendant should bear the totality of any award against the cross-claimant. He referred to Oxley County Council v McDonald [1999] NSWCA 126. He said as far as the indemnity provision was concerned, to which I have referred to earlier in the cross-claim, that the provision was an indemnity and not a release provision and cited Taylor Woodrow Property of Australia v Coles Myer [1999] NSWCA 204. I accept Mr Parker's submission on that point. I am satisfied that rejecting the evidence of Mr Vassallo as I do, that there was a failure on the part of the cross-defendant to carry out the tasks which it contracted to do. I also find that the cross-defendant, if sued, would have been liable to the plaintiff there being a sufficient degree of proximity between the cross-defendant and the plaintiff and that therefore the cross-claimant should succeed under the Law Reform Miscellaneous Provisions Act s5(1)(c). I assess the degree of culpability in respect of this aspect of the matter at fifty percent to the cross-claimant and fifty percent to the cross-defendant.

(I have corrected obvious typographical errors.)

31 Damages in the plaintiff's favour were assessed in amounts that are not the subject of any appeal. Ultimately the parties agreed on figures that gave effect to the primary judge's reasons. That agreement is set out at Red 75-6 and it was translated into the following orders:

1. Verdict and judgment in favour of plaintiff against Manpower in the sum of $64,741 2. Verdict and judgment in favour of the plaintiff against TNT in the sum of $352,620 3. Verdict and judgment in favour of TNT against Crown in the sum of $176,310.

Strictly speaking, the plaintiff would have been entitled to a full verdict against each defendant, subject to s151ZA of the Workers Compensation Act 1987. The apportionment as between TNT and Manpower is really a matter as between the defendants.

Issues in the appeal

32 As indicated, three appeals were heard concurrently. The respective appellants were TNT, Manpower and Crown. There was a limited and basically defensive cross-appeal brought by the plaintiff against Manpower that sought to correct the abovementioned slip in the translation of his Honour's reasons into the formal judgment against the possibility that TNT succeeded in its appeal. It is unclear whether it is necessary to do so otherwise, or indeed appropriate to do so otherwise given that the parties applied for the orders they received at the conclusion of the trial. Since I conclude that TNT and Manpower fail in their appeals I propose dismissing the plaintiff's cross-appeal, subject to liberty to apply if this involves misunderstanding the situation or causing injustice to any party.

33 There was common cause between some of the parties on some issues. Each party was allowed to address any issue in the appeal touching its interest.

34 As will become apparent, Crown sought to attack some of the findings made in the plaintiff's favour against Manpower and TNT. This was done on the basis that there would be nothing against which TNT could seek contribution or indemnity from Crown if TNT were found to owe nothing to the plaintiff.

35 Midway through the hearing the plaintiff sought leave to file a notice of contention seeking to uphold his judgment against Manpower on an alternative basis, namely the trial judge's finding that Crown, if sued, would have been liable to the plaintiff. Manpower objected on the ground that this application was made too late in the appeal and on the further ground that the case at trial might have been conducted differently had the plaintiff sought to make out his claim against Manpower on this alternative basis at trial. Manpower foreshadowed the possibility of filing a Cross Claim against Crown, but did not seek to do so in the present appeals none of which involved Manpower propounding a claim against Crown. We heard argument on the issues and indicated that the question of the plaintiff's right to raise the late notice of contention would be addressed in our reasons for judgment.

36 It is convenient to address the multifarious issues in the following order:

(a) Manpower's and TNT's challenges to the non-delegable duties of care found by Delaney DCJ (b) TNT's, Manpower's and Crown's challenges to the findings of breach made against TNT and Manpower (c) Manpower's challenges to the apportionment of liability as between itself and TNT (d) TNT's claim for full indemnity against Crown (e) Crown's remaining challenges to the findings on the TNT cross-claim

(f) Crown's appeal relating to the rejection of expert evidence. (a) The non-delegable duties of care owed by Manpower and TNT

37 Judge Delaney found that Manpower owed the plaintiff a non-delegable duty of care due to the employer/employee relationship. He also found that TNT owed duties analogous to the duties of an employer having regard to the daily control and instruction that TNT gave to the plaintiff. I read the latter finding as extending to the non-delegable aspect of the duty, noting that TNT disputes this.

38 At trial Manpower accepted that it owed such a duty (CB 95) but TNT disputed that it was in the same position. The appellants took opposing stances in their respective notices of appeal because only Manpower contested the judge's finding as to non-delegable duty of care in its notice of appeal.

39 TNT said nothing about the issue until its senior counsel's final submission in reply. Then for the first time TNT sought to distance itself from Manpower as regards any non-delegable duty of care owed to the plaintiff. In part, it sought to do so on the assumption that such duty imposed the unduly stringent requirement to ensure the safety of the plaintiff from injury from the pallet jack, regardless of its cause. I shall later endeavour to demonstrate why such assumption was false.

40 Regardless of possible procedural defaults, there are two matters of substance which cannot be avoided in the proper analysis of the issues thrown up by this appeal.

41 Before I turn to them I would indicate that there is no merit in TNT's attempt to differentiate its position from that of an employer. For one thing the point was raised far too late in the appeal. But more importantly, Judge Delaney was correct to have concluded that TNT was in a position analogous to that of an employer as regards (non-delegable) duty of care to the plaintiff. TNT exercised day-to-day control over the plaintiff's work activities, treating him to all intents the same as its employees as regards work on the factory floor (CB 24-6, 41, 61-2, 65). The relevant findings are set out above. It can be seen that the plaintiff and TNT placed themselves in a relationship, day in and day out, indistinguishable from that of employee and employer. I am not saying that every client of an employment bureau will assume such a relationship with the person at whose workplace he or she attends. But here the plaintiff had for months been under the daily control of TNT and its managerial staff at the brewery. He was a relatively unskilled labourer. He reported daily to the brewery and everything that he did there was done under the full control of TNT. TNT's relationship was more than that of an occupier of the factory. In all respects relevant to the imposition of a duty of care the plaintiff was in an identical position to that of the four TNT employees with whom he worked. See also Ferguson Construction Company Ltd v Hargreaves and Mayhead Brothers Ltd [1973] 1 NZLR 634.

42 Employment is not the only circumstance that can generate a stringent duty of care in relation to a safe system of work. In Stevens v Brodribb Sawmilling Co Pty

Ltd (1986) 160 CLR 16, the sawmilling company that coordinated logging operations using, in the main, independent contractors was found to have owed a general common law duty of care to a trucker who was one of those contractors, although it was absolved of breach of that duty. In a passage with which the whole Court agreed, Mason J said (at 31):

The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.

43 This reasoning explains why TNT's duty of care to the plaintiff in relation to a safe system of work was similar to that of an employer.

44 The two points of substance may now be addressed.

(i) The scope of an employer's non-delegable duty of care

45 In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Mason CJ, Deane J, Dawson J, Toohey J and Gaudron J said (at 550) (citations omitted):

It has long been recognized that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and "more stringent" kind, namely a "duty to ensure that reasonable care is taken". Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is

taken. ... In Kondis v State Transport Authority, in a judgment with which Deane J and Dawson J agreed, Mason J identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable in that sense: adjoining owners of land in relation to work threatening support or common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and (arguably), occupier and invitee.

46 In Lepore v State of New South Wales (2001) 52 NSWLR 420 I said this (at 426 [28]-[30], 427 [32], 429 [43]-[46]):

28. The concept of a non-delegable duty of care has been discussed in a number of High Court decisions (see Kondis v State Transport Authority (1984) 154 CLR 672, Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 and Scott v Davis [2000] 175 ALR 217, [2000] HCA 52 at [245]-[249], [307]-[308], [353]). Employers, hospitals and school authorities are the clearest categories of relationships giving rise to such a duty. 29. The expression "non-delegable duty" is somewhat misleading. It implies that a person cannot delegate a duty, but the truth is that the person cannot avoid liability by relying on the delegation, even to a competent delegate. A non-delegable duty is said to be personal or direct, rather than vicarious, but even this difference is more semantic than substantial. (These two points are made by Professor J P Swanton, "Non-delegable Duties: Liability for the Negligence of Independent Contractors" (1991) 4 JCL 183, (1992) 5 JCL 26. I have been much assisted by this learned article. See also Jane Swanton, "Master's Liability for the Wilful Tortious Conduct of His Servant" (1985) 17 UWA Law Rev 1.) 30. To similar effect are the remarks of Giles JA (Handley JA and Stein JA agreeing) in Elliott v Bickerstaff (1999) 48 NSWLR 214 at 236-8. His Honour said (at 238)

"Where the person owing the duty of care must ensure that the third party exercise reasonable care, and is liable if the third party does not do so, it can be seen why the non-delegable duty of care has been described as a disguised form of vicarious liability (J G Fleming, The Law of Torts, 9th ed (1998) Sydney, LBC at 434) and even as a logical fraud (G Williams, "Liability for Independent Contractors" (1956) Cam LJ 180 at 193). The person who owes the non-

delegable duty of care may be liable without fault, whether personal or of a servant or agent. Although conceptually the breach of duty will be a breach of that person's duty of care, the so-called duty of care in truth is not a duty to take care but a mechanism for responsibility for someone else's failure to take care. The concept of non-delegable duty of care has nonetheless been recognised for over a century (see Pickard v Smith (1861) 10 CB (NS) 470; 142 ER 535; Dalton v Henry Angus & Co (1881) 6 App Cas 740), and is thoroughly established in the law including in the decisions of the High Court. Indeed, it extends to liability for the failure to take care of third parties who are not independent contractors, in the traditional sense: eg Commonwealth v Introvigne(1982) 150 CLR 258."

... 32. Where the non-delegable duty is one of care (and most reported cases deal with this situation) the duty is expressed as requiring the defendant to ensure that reasonable care is taken (Kondis at 686, Burnie Port Authority at 550). The result is, as Gummow J expressed it in Scott (at [248]) that:

"... the characterisation of a duty as non-delegable involves, in effect, the imposition of strict liability upon the defendant who owes that duty".

... 43. Discussion about non-delegable duties of care is usually accompanied by the statement that the duty will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor (eg Burnie Port Authority at 550). However, the concept extends to negligence by employees, because it may be invoked where the fault is, or might be, that of an employee whether or not acting in the course of employment. Many of the hospital cases are in this category, because there is uncertainty whether the personal fault lay with an employee (eg a nurse) or an independent contractor (eg a visiting specialist surgeon). 44. In the past, one reason why the concept was invoked in the employment context was to side-step the doctrine of common employment (Wilsons & Clyde Co Ltd v English [1938] AC 57, Kondis at 680-1). Another was to avoid the necessity of establishing that a negligent employee was acting in the course of employment (Atiyah "Vicarious Liability in the Law of Torts" 1967, p339 citing Leesh River Tea Co Ltd v British India Steam Navigation Co Ltd [1966] 1 Lloyd's Rep 450 (revd on other

grounds on appeal: [1967] 2 QB 250). See also Morris v C W Martin & Sons Ltd [1966] 1 QB 716).).... 45. The class of plaintiffs entitled to the benefit of a non-delegable duty of care is restricted to those falling within the protected relationship. It is therefore possible to conceive of a situation where an employee acting outside the course of employment harms two persons, one a fellow employee and the other a stranger. The fellow employee will succeed by invoking the employer's non-delegable duty. The stranger will fail if unable to establish some alternative basis of direct liability against the employer, eg occupier's liability. 46. There will be situations where the Court will need to determine the precise area covered by a non-delegable duty of care even for a recognised category, eg hospital-patient. Thus, in Davie v New Merton Board Mills Ltd [1959] AC 604 the duty was not breached where the only negligence was that of the manufacturer of a defective tool which the employer had bought and supplied for the use of the employee. The manufacturer was not someone to whom the employer had delegated the performance of some part of its duty, but was relevantly a "stranger" (Kondis at 683 per Mason J).

I do not understand this reasoning to be affected by the allowance of the High Court appeal in Lepore (see New South Wales v Lepore [2003] HCA 4).

47 The authorities cited in par [32] of this extract demonstrate that, in the realm of negligence, (a) a non-delegable duty of care will (like a duty based on vicarious liability) be imposed on categories of persons regardless of personal fault on their part in the circumstances giving rise to the plaintiff's injury; but (b) the plaintiff must prove that damage was caused by lack of reasonable care on the part of someone (not necessarily the defendant) within the scope of the relevant duty of care.

48 The second requirement, namely that the plaintiff's injury occur within the scope of the special relationship, is frequently passed over because the requirement is clearly satisfied in the particular case. But the issue cannot be ignored and it has significance in cases such as the present.

49 In the realm of negligence, there are many authoritative statements to the effect that an employer is not an insurer of workplace safety. The employer does not warrant the safety of plant (Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury 2nd ed, 1979, p61). The primary question is whether the employee's injury has resulted from some failure on the part of the employer to take reasonable care for the employee's safety (Rae v The Broken Hill Pty Co Ltd (1957) 97 CLR 419 at 430 per Taylor J). In Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Hayne J said (at 98, citations omitted):

The duty is, of course, not absolute; it is the duty of a reasonably prudent employer and it is a duty to take reasonable care to avoid

exposing the employees to unnecessary risks of injury. See also New South Wales v Lepore at [22], [257]-[261].

50 The general duty of care personally owed to the employee extends to the safety of plant. It will seldom matter whether the breach is charged either as a failure to provide safe and suitable plant or as a failure to replace defective plant with plant which was safe and suitable (Harrison v South Clifton Coal Mining Co Ltd (1963) SR(NSW) 689). Kirby J recently described the content of the duty in the following terms in Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 (at 160-1, citation omitted):

An employer does not warrant that equipment which it supplies to employees will not in any circumstances fail, causing harm. But the employer does owe a duty of care to procure suitable equipment and then to ensure that it is inspected from time to time against reasonably detectable risks of failure or deterioration. Whatever may have been the requirement in earlier times, a continuous duty, demanding vigilance and attention to the needs of accident prevention, is now imposed by the common law upon employers, enforceable in the case of breach causing damage by an action framed in negligence. ... [The] duty remains that of reasonable care. It is not one of strict liability. Workers' compensation legislation affords basic protection upon proof of the happening of an injury to an employee in defined circumstances. But to recover damages, the added element of negligence or breach of a statutory duty sounding in damages must be shown. This requirement imports considerations of reasonable care which must be demonstrated to be wanting if a more substantial recompense, in the form of damages, is to be recovered at common law.

51 In Kondis, the employer was held liable for the negligence of its independent contractor (a crane operator) in failing to adopt a safe system of work. There were two bases of liability, but one of them (affirmed by Mason, Murphy, Brennan and Deane JJ) was that the contractor's failure to adopt a safe system of work constituted a failure by the employer to satisfy its non-delegable duty to exercise reasonable care in providing a safe system of work for its employee. Mason J said (at 682-3):

However, the concept of the personal duty which [Lord Wright expounded in Wilsons and Clyde Coal Co v English [1938] AC 57] makes it impossible to draw a convincing distinction between delegation of performance of the employer's duty to an employee and delegation to an independent contractor. On the hypothesis that the duty is personal or incapable of delegation, the employer is liable for its negligent performance, whether the performance be that of an employee of that of an independent contractor.

52 Mason J, with whose general reasons Deane J agreed, described the duty as a

personal duty to ensure that reasonable care is taken (at 686). The duty exists in and arises out of various relationships of which employment is one. Mason J said (at 687-8):

The foreseeability of injury is not in itself enough to generate the special duty. Before the special duty arises there must exist in the relationship between the parties an element of the kind already discussed. That such an element exists in the relationship of employment is beyond serious challenge. The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences.

53 As indicated already, these remarks apply equally to TNT in the circumstances of the present case.

54 Contrary to the submission of Manpower (Orange 13), I do not read Mason J's reference to the employer's "exclusive responsibility" for safety of its employees in this passage as authority for a proposition that an employer can slough off that responsibility by sending the employee to a workplace under the day to day control of another (see further below).

55 The speeches in the House of Lords in Davie v New Merton Board Mills Ltd [1959] AC 604 contain many statements affirming the direct or personal nature of an employer's duty of care. However, that decision demonstrates that the employer is not liable for every conceivable type of negligence causative of injury. To use the conceptual structure that I proposed in Lepore, Davie establishes that the scope of the employer's non-delegable duty of care does not extend to defects in plant that the employer buys from a reputable vendor or manufacturer, where those defects were the product of the manufacturer's negligence as distinct from want of care in their maintenance at the workplace.

56 In Davie an employee suffered injury to his eye as the result of a latent defect in a tool provided by his employer. The tool was called a drift and it was a tapered bar of metal about one foot long that was struck by a hammer. The drift was apparently in good condition, but because of its excessive hardness it was, in the circumstances, a dangerous tool. It had been negligently manufactured by reputable makers who had sold it to a reputable firm of suppliers who in turn had sold it to the employer. The

employer's system of maintenance and inspection was not at fault. The House of Lords held that the employer's duty was a duty to take reasonable care to provide a reasonably safe tool and that such duty had been discharged by buying from a reputable source a tool whose latent defect it had no means of discovering.

57 The Law Lords affirmed the propositions that an employer is liable for damage suffered by an employee flowing from the supply of unsuitable equipment due to want of reasonable care; and that this direct and personal obligation extends to the acts of the employer, its servants, agents and independent contractors (see eg per Viscount Simonds at 617-8, 624-5, per Lord Morton at 628-9, per Lord Reid at 642, 646, per Lord Tucker at 647).

58 However, this duty to take reasonable care to supply employees with proper plant and machinery, which "the employer could not escape responsibility by employing a third party, however expert, to do his duty for him" (per Viscount Simonds at 625) was held not to extend to defects due to the want of skill or care on the part of anyone concerned in manufacture or sale, in circumstances where the employer bought the plant from a reputable source.

59 In Kondis (at 683), in the paragraph that followed the passage set out at par 51 above, Mason J said that the decision in Davie was not inconsistent with the proposition stated by him in the preceding sentence. No doubt was cast upon the correctness of Davie. See also Lepore at 429 [46]. 60 Applying these principles to the present case, it is not enough for the plaintiff to show that he was injured due to some latent or inherent defect in the pallet jack, even a defect which was the result of negligence on the part of its manufacturer. By analogy, negligence on Crown's part in supplying a defective jack would not be attributable to Manpower or TNT given that nobody suggested that Crown was other than a reputable supplier.

61 But negligence in the servicing or maintenance of the jack is different altogether. An employer's duty of care with respect to plant and equipment extends to the exercise of reasonable care in its maintenance and repair. Here the employer (Manpower) chose to delegate this responsibility to TNT and TNT chose to delegate this responsibility to an independent contractor, ie Crown. But such conduct could not relieve Manpower or TNT of legal responsibility if it could be shown that the plaintiff employee's injury was the result of negligence in regard to the maintenance and repair of the equipment.

62 So far as the plaintiff is concerned it would not matter if the precise circumstances of the negligence could not be established. One aspect of the non-delegability duty doctrine is that it may assist a plaintiff who is unable to locate or prove the precise activity where negligence occurred or to identify the negligent agent (see Lepore at 429 [43]).

(ii) Manpower's duty of care

63 Notwithstanding the stance adopted at trial, Manpower sought to press a novel

argument concerning the existence or scope of its duty of care as an employer. The submission was that Manpower did not have the employer's non-delegable duty because it was no more than an employment agency/bureau or "body hire company" and because it had handed over its employee into the control of TNT. Manpower pointed to some tentative obiter dicta in Fennell v Supervision and Engineering Services Holdings Pty Limited (1988) 47 SASR 6 (at 13 per Jacobs J and 18 per von Doussa J, contrast at 7 per King CJ). Manpower also relied upon a passage in Stevens at 32-3, apparently overlooking the fact that the person whose casual negligence was there in issue (Gray) was not Stevens' employer in that case.

64 I would reject this submission. It is contrary to authority, in that Kondis and the cases that follow it proceed on the basis that the employment relationship creates the relevant non-delegable duty.

65 On analysis, Manpower's submission boils down to the fallacious argument that the non-delegable duty can be delegated by abdication.

66 Manpower's concession (properly made) that it was and remained the plaintiff's employer and the facts showing a continuing relationship of that nature negated the possible application of the qualification described by Gibbs CJ in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 at 641:

Where the services of the servant of one employer are temporarily used by another, both employers will not be liable; prima facie the liability will usually remain with the general employer who may, however, 'show, if he can that he has for a particular purpose or on a particular occasion temporarily transferred the services of one of his general servants to another party so as to constitute him pro hac vice the servant of that other party with consequent liability for his negligent acts': Mersey Docks and Harbourboard v Coggins and Griffith (Liverpool) Ltd [1947] AC 1 at 13.

67 In my view, it would be contrary to principle to enable or even to encourage an employer that operates a labour hire business to treat the normal incidents of the employment relationship as modified simply because its employees are sent off to work for a client. Indeed, the very fact that employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees.

68 In Drake Personnel Ltd v WorkCover Authority of New South Wales (1999) 90 IR 432 the Industrial Relations Commission of New South Wales

in Court Session was considering the application to a labour hire company of s15(1) of the Occupational Health, Safety and Welfare Act 1983 which imposes strict obligations upon employers to ensure the health safety and welfare of their employees. The employer argued unsuccessfully that the contract of employment and the statutory obligation stemming from it under

that Act were modified by an implied term to the effect that the client would not instruct the employee to work on any machine other than one previously shown to the employer's representative. The Commission (Wright J (President), Walton J (Vice President), Peterson J) held on the facts that no such term should be implied. Wright and Walton JJ continued (at 455-6):

In any event, we are not persuaded that the appellant would be relieved from liability under the OH&S Act, even if the existence of an implied term in the form alleged had been established. This question raises the particular circumstances of an employer who conducts a labour hire business by engaging employees for the purpose of supplying those employees to do work for other employers. The relationship created between a labour hire company and its employees is distinguishable on a number of grounds from that existing between traditional employers and their employees. A labour hire agency does not employ people to work for itself but to work for a client, it does not directly on a day to day basis supervise the tasks carried out by the employee and it is usually not in control of the workplace where the work is done. However, these circumstances do not obviate, or diminish, the obligation of the employer under s15(1) of the OH&S Act to "ensure the health, safety and welfare at work of all the employer's employees". Indeed, in our view, an employer who sends its employees into another workplace over which they exercise limited control is, for that reason, under a particular positive obligation to ensure that those premises, or the work done, do not present a threat to the health, safety or welfare of those employees. Certainly, there is no basis to consider that such an employer has a lesser liability or obligation under s15(1). ... A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe.

69 These remarks were made in the context of the statutory offence in s15 of the Occupational Health, Safety and Welfare Act. Subject only to recognising that the tortious duty of an employer is to take reasonable care, these remarks are equally applicable to cases such as the present. See also Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 99 ALR 735 at 754.

70 In light of these principles, it follows that, if the findings of negligence in relation to the maintenance and/or repair of the jack stand, then both TNT and Manpower will be liable in tort to the plaintiff even if TNT reasonably relied upon Crown to

attend to reported faults. And it will not matter (so far as the plaintiff is concerned) if TNT failed on 23 June 1997 to pass on to Crown the plaintiff's notification of the fault with the braking mechanism. (In fact there were findings that Crown also knew (see Red 33W, 40) which Crown challenges - unsuccessfully.)

(b) Did Manpower and TNT breach their respective duties of care to the plaintiff?

71 The two "employers" argued that they were not in breach of their respective duties of care in relation to the maintenance and repair of the jack. Crown supported them to the extent that liability of the defendants stemmed from the negligence of Crown.

72 In its notice of appeal (Red 79) TNT contended that the trial judge erred in effectively imposing strict liability. The maintenance, inspection and servicing system adopted by it before the accident satisfied its duty of reasonable care. Manpower adopted the same position (Notice of Appeal CA 40414 of 2002, par 4).

73 These contentions were developed in the oral submissions of Mr Holmes QC for TNT and Mr Gyles for Manpower and in the written submissions filed on behalf of those appellants.

74 The crux of the attack was reliance upon the engagement of Crown as a skilled and reputable servicing company and the existence of a reasonable system for reporting and attending to malfunctions in the jacks. These appellants also embraced the plaintiff's evidence, accepted by the trial judge, that the plaintiff observed something wrong with the jack about two week's before the accident (ie on about 23 June 1997) and reported the fault to Mr Anderson, TNT's warehouse manager. A Crown service technician apparently fixed the fault (CB 7-8). Despite this, the same fault led to the accident on 3 July 1997. These appellants also embraced the findings that the plaintiff had received training in the operation of the jack and that he had checked the brakes before commencing to work the jack on the day of the accident.

75 According to TNT and Manpower, the trial judge failed to recognise that the duty remained one of reasonable care as distinct from a duty of continuous maintenance and strict liability. The fault in the jack was intermittent and it resurfaced without warning. In the circumstances, it was submitted that there should have been a closer assessment of TNT's system as a necessary step towards a finding of negligence on its behalf.

76 Delaney DCJ found that Manpower breached its duty of care on two bases, one of which was Manpower's failure to adequately instruct and provide proper assistance to the plaintiff in the performance of his duties.

77 There is much force in Manpower's challenge to this conclusion, based upon the absence of evidence or specific findings referable to instruction by Manpower about the proper use of the jack, and the linkage (if any) between absence of such instruction and the injury. Manpower also points to the judge's general acceptance of

the plaintiff (Red 59) and links this to the plaintiff's evidence which indicated his belief as to his competence in handling the machine and his knowledge of the system for dealing with faults when they manifested themselves (CB 31, 62).

78 Even discounting these submissions so far as they seek to agitate the non-delegability (to TNT) of Manpower's duty of care as an employer, there is weight in the attack upon this first arm of the findings of negligence against Manpower, especially as regards causation. That challenge gains further strength from acceptance of the finding that the cause of the accident was the recurrence of the intermittent fault, being something which general instruction on how to work the jack would not be expected to address. However, I need take the matter no further, because the finding of negligence against Manpower on the second arm (as to safe equipment) is sustainable.

79 In my view, the verdicts against TNT and Manpower are sustainable on the basis of primary facts found by Judge Delaney which are either embraced by those appellants or not effectively challenged in the appeal proceedings. My reasons follow.

80 I should indicate at the outset that the judge's manner of expressing his dispositive findings of breach was unfortunate and that they may well have contributed to the appellants' sense of grievance that they were subjected to strict liability for safety of equipment.

81 Thus, the second breach found against Manpower was:

"failing to properly inspect, maintain and provide appropriate equipment for the plaintiff to undertake this [sic] task".

And the breach found against TNT was: I find that the second defendant had a duty to provide forklifts which effectively operated which were without fault of the type which led to the injuries suffered by the plaintiff. The second defendant should have foreseen the likelihood that the plaintiff could be injured if the machines which it had hired from the cross-defendant were not working efficiently and correctly and required continuous maintenance. In those circumstances notwithstanding the absence of expert evidence on the question, it is only common sense that the second defendant should have taken steps to acquire a system of work which would have in the circumstances protected the plaintiff from the risk of injury which came home in the case from a faulty pallet jack. I find that the second defendant breached the duty of care that it owed to the plaintiff.

82 These conclusions appear to ignore or gloss over the essential need to establish want of reasonable care, albeit not necessarily on the "employers'" own part.

83 Nevertheless, I have concluded that such findings are implicit. More to the point,

lack of reasonable care is established in the specific findings made earlier in the reasons of the primary judge. These concern the incident on 23 June 1997 in which the jack manifested its faulty and dangerous propensity leading the plaintiff to report it to Mr Anderson. Crown was called in to fix the problem, but failed to do so. Instead, the jack was returned to service and, despite the plaintiff putting it through its preliminary motions on the day of the accident, the fault recurred with sad consequences (see esp Red 37G).

84 These primary facts are embraced by TNT and Manpower. To the extent that Crown demurred in its appeal, the findings were amply open to the trial judge on the plaintiff's evidence which was accepted by the trial judge in circumstances not capable of attracting adverse appellate review. There was evidence from the plaintiff that Crown was told of the braking problem (CB 8F), which the judge accepted. The Crown Job Card of 23 June 1997 did not require the judge to reject this evidence.

85 The immediate cause of the accident was the jack reversing whilst the handle was in the upright (brake) position. The precise reason why this happened was not established, but it remained open to the plaintiff to rely on inferential reasoning to prove negligence (Schellenberg at [37]).

86 This was a fault which manifested itself and was reported (through TNT) to Crown. A serviceman attended and, having done some work on the jack, implicitly passed it as effective for work and free of the defect. Issue was joined at trial, principally on the question of whether the plaintiff's account of observing and reporting the very fault which was purportedly repaired but which recurred was to be accepted (see esp CB 9, 44-5). The plaintiff was accepted on this point.

87 Neither Crown nor any other party at the trial called the repairman who attended to the maintenance before the accident. Crown's barrister cross-examined the plaintiff, suggesting that the problem he had earlier reported was different to that which later manifested itself. This was done on the implicit basis that the serviceman who fixed the reported problem could hardly have been blamed for not attending to the different one which later emerged (see passage set out in judgment below at Red 39-40). The plaintiff adhered to his evidence that he had reported what was apparently the same problem as that which led to the accident, and his evidence on this was expressly accepted by Judge Delaney (Red 40N). 88 There was also evidence from Mr Anderson (see Red 41-46) and in the written reports of 3 and 4 July 1997 (see above) indicating that something was wrong with the jack's reversing mechanism in relation to its hand switch control. Mr Anderson also deposed to a conversation with a Crown representative on 4 July 1997 in which the latter said "It looks like a faulty micro switch" (CB 57H).

89 The only witness called by Crown was a technician (Mr Vassallo) who inspected the jack on the day of the accident. He suggested that the machine's malfunction was confined to an intermittent third speed, but this evidence contrasted with that of Mr Anderson and was, to that extent, rejected by the trial judge on grounds that included his observation of the technician when giving evidence.

90 The jack was subsequently repaired by Crown replacing the handle thereby

bringing the particular pallet jack in line with the others on lease to TNT. This demonstrated the feasibility of detecting and remedying the default (contrast the situation in Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 at 364-5 upon which TNT relied).

91 When Judge Delaney addressed the issue of contribution as between TNT and Crown, he found that:

... rejecting the evidence of Mr Vassallo as I do, that there was a failure on the part of [Crown] to carry out the tasks which it contracted to do.

92 The finding that Crown was negligently at fault in failing to detect and/or repair the cause of the problem reported to it is sufficient to render TNT and Manpower liable, in light of the non-delegable duties each owed to the plaintiff. There was a want of care in the maintenance of the plant which employees were directed to use at the workplace.

93 In par 35 above I refer to an outstanding issue as to whether the plaintiff should be permitted to rely upon a lately raised contention point by which he seeks to sustain his verdict against Manpower. The plaintiff wishes to treat Crown's negligence in maintaining or servicing the jack as a breach of Manpower's non-delegable duty of care. It is unclear why the notice is required. The claim is within the pleading in the Amended Ordinary Statement of Claim, the case advanced by the plaintiff at trial (see Red 52, CB 98) and the broadly-stated finding that Manpower breached its duty of care by "failing to properly inspect, maintain and provide appropriate equipment from the plaintiff to undertake this (sic) task". In light of the way the trial was fought and the earlier findings in the judgment this could not be read as based on an implicit conclusion that Manpower personally was guilty of the specific default. Rather, it was being found that Manpower had failed in its duty of care to the plaintiff because of the negligence of TNT/Crown in the provision and servicing of safe equipment.

94 In all these circumstances I cannot see any possible forensic prejudice to Manpower. If Manpower refrained from filing a cross claim against Crown seeking contribution under the Act that was its choice which may or may not now be beyond recall. (Cf Appeal Transcript pp42-44.) But Manpower was always on notice that the plaintiff was seeking to establish liability inter alia based upon TNT's negligent failure to provide a safe system of work and that failure always encompassed the defaults alleged against TNT concerning the defective tool and/or its defective maintenance. The whole discussion about non-delegable duty at trial makes no sense otherwise.

95 Manpower addressed the factual issue in the appeal, principally adopting the submissions of TNT.

(c) Manpower's challenge to the apportionment of liability as between itself and TNT

96 Having found each defendant liable to the plaintiff, Judge Delaney apportioned the damages on the basis of TNT's responsibility to pay 75% and Manpower's responsibility to pay 25%. The reasoning is set out at par 27 above.

97 Manpower seeks a full indemnity from TNT on the basis of TNT's exclusive control of the system of work. It also invokes Fennell and the argument that I have already addressed to the effect that Manpower did not have a primary liability to the plaintiff because it did not have the employer's non-delegable duty of care notwithstanding its status as the plaintiff's employer. I have already rejected the latter proposition. And I can see no basis for disturbing the primary judge's apportionment as between the two "employer" tortfeasors. In this regard I repeat my remarks about employment bureaus not being able to abdicate continuing responsibility to their employees with respect to safe plant and equipment.

(d) TNT's claim for full indemnity against Crown

98 TNT pleaded its claim against Crown on the alternative bases of a breach of the implied warranty as to fitness for purpose and as a concurrent tortfeasor. The contractual claim sought a complete indemnity whereas the statutory claim sought indemnity or contribution in accordance with s5(1)(c) of the Act.

99 Crown admitted the written Rental Agreement and, in answer to each claim, relied upon condition 1(i) by which TNT (as Customer) agreed:

(i) to indemnify the Owner in respect of all losses, damages or injuries to person or property arising out of use of the equipment, howsoever incurred, during rental or in transit, except where such loss, damage or injuries were caused or contributed to by any wilful or negligent act or omission of the Owner.

100 Judge Delaney found "that there was a failure on the part of [Crown] to carry out the tasks which it contracted to do" without specifying the precise nature of the breach or even identifying the relevant contract. As indicated above, there was evidence of two contracts, namely the Rental Agreement in evidence and the agreement (written or unwritten) pursuant to which servicing was effected.

101 TNT submitted that this provision was an indemnity and not a release, citing Taylor Woodrow Property Co of Australia Pty Ltd v Coles Myer Ltd (1999) 9 BPR 17,449 [1999] NSWCA 204. That submission was accepted by Judge Delaney and this explains why he regarded himself free to apportion responsibility as between TNT and Crown pursuant to the Act.

102 Proportionate responsibility was assessed at 50:50 and (by agreement of the parties) this was translated into a verdict and judgment for TNT against Crown in the sum of $176,310 being half of $352,620 which was the portion of the total judgment in the plaintiff's favour ($417,361) awarded against TNT (Red 75-6).

103 In its appeal TNT submits that the trial judge failed to address its superior claim

for complete indemnity based upon the warranty of fitness for purpose said to be implied in the written Rental Agreement (Ex 2, CB 133-4) or the arrangement between TNT and Crown for servicing of the machines.

104 In its appeal Crown submits that the primary judge erred in not treating condition 1(i) as a release.

105 It is convenient to address Crown's argument first. Crown submits that the condition stated the basic allocation of risk between TNT and Crown. The precise operation of the clause was designed to free Crown from liability other than in the specific circumstances which it covers. Taylor Woodrow is said to be distinguishable on its facts. Giles JA, who gave the judgment for the Court, recognised that an indemnity can operate to release the liability of the indemnifying party to the indemnified party. He cited Smith v South Wales Switchgear Co Ltd [1978] 1 WLR 165 at 168, 172 where there are references to an indemnity clause as the obverse of an exception clause.

106 These submissions have a circular quality about them insofar as a general purpose said to arise out of the particular language is used in turn to reinforce the ultimate construction.

107 It is, however, true that the provision considered in Taylor Woodrow was much more complex than the present clause, containing in the critical part (9.1(c)) an indemnity that contrasted with a release earlier in the clause (see 9.1(a)).

108 It is best to return to the text of the clause in question, observing that Crown invokes it as a shield against its own negligence and, according to the issue raised in TNT's appeal, its own breach of contract. Even without resort to the concluding words of the indemnity, it is in my view not possible to construe the indemnity as a release from any statutory or contractual liability to TNT in those circumstances (cf Smith). The clause should be read contra proferentem. In any event, its concluding words are quite explicit that, where Crown's negligence triggered the relevant loss, the "indemnity" has no application.

109 This part of Crown's appeal fails.

110 I return to TNT's appeal seeking full (contractual) indemnity.

111 The Rental Agreement declared that TNT was the bailee of the jack and it did not purport to exclude any implied warranty as to fitness. TNT therefore submits that there was an implied warranty that the jack was free from defects including latent defects and reasonably fit for its intended purpose (Derbyshire Building Co Pty Ltd v Becker (1961) 107 CLR 633); and that the said finding indicated that such warranty was breached (see also Clark v Esanda Ltd [1984] 3 NSWLR 1 at 9). The damages flowing from such breach were the entire verdict (including costs) awarded to the plaintiff against TNT (Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 at 591, 598-9; Oxley County Council v Macdonald [1999] NSWCA 126).

112 TNT also invokes the warranties of quality and fitness for purpose implied in

contracts for work and materials (Helicopter Sales (Australia) Pty Ltd v Roto Work Pty Ltd (1974) 132 CLR 1 at 8, 9).

113 Crown submits that there was no evidence from which a warranty of fitness for purpose could be implied. I disagree. The relationship between TNT and Crown and the supply and maintenance (on demand) of specialist equipment provided ample material from which to imply the standard term. Absent evidence to the contrary I readily infer that TNT relied upon Crown, and not the reverse.

114 Secondly, Crown submitted that, since the warranty is one of "reasonable" fitness for purpose, the machine only had to be suitable to that standard when delivered or last serviced and for a reasonable time thereafter, and subject to fair wear and tear (see Clark v Esanda Ltd at 8-9). So much may be granted, but breach was still established on the facts as found, particularly the finding that the problem was meant to have been fixed on 23 June 1997 came back early the following month when the jack was used again by the plaintiff.

115 I accept TNT's submissions on the contractual indemnity issue. It is unfortunate that they were overlooked by the primary judge, but such omission cannot be equated (as Crown suggested) with absence of reasons, thereby necessitating a new trial. Since the facts otherwise found point clearly to the conclusion and since this Court has heard full argument addressing the issues, it is appropriate that the matter be resolved by the making of the orders that should have been made (see Supreme Court Act 1970, s75A(10)).

116 TNT and Crown each challenge the 50:50 apportionment as between TNT and Crown awarded by the trial judge under the Act.

117 This issue falls away in light of my findings on TNT's claim for full contractual indemnity. Nevertheless, against the possibility that others may not share my views on that matter, I have considered the opposing contentions.

118 I see no merit at all in Crown's appeal which contends that TNT's lack of training caused the injury. This is contrary to the facts as found, including the facts as to causation.

119 TNT submits that since Crown was the expert that owned and serviced the equipment, charging TNT for the same, and since Crown's culpability far outweighed that of TNT, TNT ought to have been awarded a full indemnity under the Act. TNT, however, accepted that full indemnity might not be appropriate under the Act if its lack of proper instructions to the plaintiff contributed to his injury or if it could be inferred that TNT knew or ought to have known that the machine was faulty (something which it denied, in light of reliance upon Crown servicing the jack and representing that the problem had been fixed). I would uphold TNT's appeal on this point, in light of the finding that the problem was brought to Crown's attention on 23 June 1997.

(e) Crown's remaining challenges to the findings on the TNT cross claim

120 As indicated, Crown joined with TNT and Manpower in challenging the findings of negligence based upon the failure of its maintenance system and/or the particular failure of its serviceman to attend to the fault reported by the plaintiff a fortnight or so before the accident. This aspect of its appeal has been addressed earlier.

121 Crown also pressed some independent complaints about the findings on TNT's Cross-Claim against it. 122 An initial submission by Crown was directed at the inadequacy of reasons. Crown focussed upon the primary judge's finding (Red 62R) that:

I am satisfied that rejecting the evidence of Mr Vassallo as I do, that there was a failure on the part of the cross-defendant to carry out the tasks which it contracted to do.

123 If this passage were the only place in the judgment indicating why Crown and, through Crown, TNT and Manpower were liable there would be a material deficit in exposure of reasoning process. But Crown's submission overlooks the earlier findings about the maintenance regime, the plaintiff's reporting of the defect, the attendance of a Crown serviceman on 23 June 1997 and the implicit certification by him that the problem had been fixed, whereas it was to recur on 4 July. Mr Vassallo was called by Crown in relation to a small portion of the case raised by the plaintiff against the defendants based upon breach through Crown of the defendants' non-delegable duty of care. The rejection of Mr Vassallo's evidence coupled with the acceptance of the plaintiff's case (that was otherwise not challenged by evidence led for Crown) laid open the way to orders against the defendants and the orders against Crown on TNT's Cross Claim.

124 Nor is there any merit in Crown's complaint that the Rental Agreement contains no condition relating to service or maintenance. There was undoubtedly a regime for regular maintenance and specific servicing of the equipment leased by Crown to TNT. Whether or not it was contractual, it established the relationship in which Crown's negligence bore upon the rights of the other parties. It was up to Crown to point to contractual terms if relevant to absolving it from liability derived from the Act. I have already addressed the issues turning upon the construction of the indemnity provision in the Rental Agreement.

125 These preliminaries having been dealt with, Crown's position in relation to whether the plaintiff proved negligence against it is identical to that adopted by TNT and Manpower in that regard. Crown submitted that the plaintiff's evidence went no further than establishing an efficient system of maintenance and servicing. The nub of its defence is the submission that the jack broke down without warning and in circumstances where the plaintiff has failed to prove want of due care on Crown's part. A major part of that defence is reiteration of the claim that the plaintiff had reported a different problem on 23 June 1997. I have already indicated why the trial judge's conclusion to the contrary must stand. And, for reasons already given, the finding that the plaintiff did report a malfunctioning that included the problem that later manifested itself, the attendance of a Crown serviceman on 23 June 1997, and the evidence that demonstrated that the problem that recurred on 4 July 1997 was

capable of detection and correction was sufficient to establish negligence notwithstanding the absence of expert evidence from the plaintiff.

126 It is relevant to recall that the faulty jack was taken by Crown after the accident and promptly repaired by replacing the defective handle. In these circumstances, it is difficult to see what expert evidence would be presently available to cast light on the critical issue. That would not cover a gap in the plaintiff's case, but it is the context in which the court is asked to infer negligence. In light of the evidence as a whole, I draw that inference.

(f) Crown's appeal relating to rejection of expert evidence

127 One of Crown's grounds of appeal raises an issue which could lead to a new trial, at least of the Cross Claim against it. It concerns the trial judge's refusal to allow Crown to rely upon a piece of expert evidence.

128 The plaintiff's lawyers had engaged a consulting engineer (Mr Buckland of Simpson Associates Forensic Engineering). His report, dated 31 July 2000 (CB 124) addresses several issues relating to the faulty jack. It contains the following statement:

There appears to be no link between the 3rd speed problem and the reversing malfunction and, apart from the Plaintiff's statement, the writer has seen no other record reporting that specific malfunction. That includes the testing for, an explanation of, or the repair of the malfunction.

129 The report was served on all parties by the plaintiff's solicitors, but was not tendered by the plaintiff. Crown's attempts to tender it at trial were rejected because of an apparent procedural default which the judge was not prepared to excuse.

130 The plaintiff had served the report on TNT in about October 2000 (CB 84), before or at about the time when TNT joined Crown in the proceedings by filing its Cross Claim against Crown. The report was provided to Crown about the same time and well before the trial, which commenced Friday 2 March 2001.

131 Part 28 r8(3) of the District Court Rules provides:

Unless the Court otherwise orders, in proceedings to which this rule applies, each party to the proceedings shall, at least 28 days before the trial, serve expert's reports ... on each other party who has an address for service in the proceedings.

132 The rule applies to the subject proceedings and the report in question is an "expert's report" as defined in subrule (2). Subrule (6) provides:

(6) In proceedings to which this rule applies, except with the leave of the Court or by consent of the parties -

(a) the oral expert evidence in chief of any expert is not admissible unless that evidence is covered by the expert's report served in accordance with this rule; and (b) neither an expert's report nor a hospital (?) report is admissible when tendered under sections 63, 64 or 69 of the Evidence Act 1995 unless is has been served in accordance with this rule.

133 Rule 9(1) provides:

(1) Subject to rule 9C(b)(ii), where an expert's report is served in accordance with rule 8 or an order is made under rule 8(3), the report is admissible as evidence of the expert's opinion and, where the expert's direct oral evidence of a fact upon which the opinion was formed would be admissible, as evidence of that fact, without further evidence, oral or otherwise.

134 On 21 February 2001, 9 days before the commencement of the trial, Crown served a copy of the report on TNT (CB 84D). It did so in response to particulars received by TNT the previous day.

135 The report was not tendered by the plaintiff or either of the defendants at trial. Crown's counsel sought to tender it in the cross claim on 2 March 2001 (CB 83). TNT's counsel admitted that his client had received the report from the plaintiff the previous October but successfully opposed Crown's application to abridge the time to permit reliance on the report. Prejudice was not asserted, but it was common ground at trial that rr 8 and 9 applied and that dispensation (cf Pt 3 r2) was necessary before time could be abridged.

136 Judge Delaney delivered a short judgment (Red 17-18). He observed that the proceedings had been listed for hearing since the previous October and that Crown had been in possession of the report since that time. His Honour concluded that no appropriate reason had been advanced for abridgment of time.

137 TNT had also objected to portion of the report on relevance grounds, but the judge's ruling did not have to address this point.

138 Crown thereupon closed its case on the cross claim and there was no case in reply. The hearing was adjourned until the following Wednesday, 7 March 2001, for submissions.

139 On the Wednesday Crown renewed its application, relying on a formal notice of motion. Counsel indicated that arguably irrelevant material (previously objected to by TNT) would not be relied upon and that the report was tendered solely against TNT. The judge was informed that it had been understood by Crown until during the course of the hearing that the plaintiff was going to rely on the report. (This was not disputed, but it does not fully explain why Crown had chosen to serve the report before the trial.) It was submitted that TNT was in no way prejudiced.

140 The application was again refused. Judge Delaney sought in effect to restate his reasons previously given (see Red 26-7).

141 In the appeal Crown submits that his Honour erred in the proper exercise of his discretion because it had not been contended that TNT was unable to meet the report or was prejudiced by Crown's reliance upon it. No suggestion had been raised that the author of the report would be required for cross-examination.

142 Before ordering a new trial in these circumstances this Court would need to be satisfied that the ruling occasioned some substantial wrong or miscarriage (Pt 51 r23). I am not satisfied of this. The critical passage in the report (quoted above) concedes that the plaintiff stated that he reported the specific reversing malfunction. Even if that malfunction was unlinked to the 3rd speed problem examined on 23 June 1997, as documented in the Crown service job card, that leaves Crown with the problem of overcoming the finding that the plaintiff had also reported the other difficulty. The passage in the expert's report expressly recorded an opinion based upon the documentation and "apart from the Plaintiff's statement". Viewed thus, the opinion scarcely advanced the case of any appellant very far.

143 It therefore becomes unnecessary to consider whether there was an error of principle in the refusal to abridge time or indeed in considering that abridgment was required in circumstances where the report had been served on TNT months earlier. I doubt that it was required, although all parties proceeded at trial as if it was and, in those circumstances, the rulings can scarcely be faulted for having assumed likewise.

144 Another reason why I would reject this aspect of Crown's appeal is that the report only bears on the cross claim between TNT and Crown. Since, however, it is not relevant to the implied warranty of fitness issue which, in my view, disposes of that claim in TNT's favour, no injustice was caused by its rejection at trial.

Disposition

145 In broad outline:

1. TNT's appeal against the plaintiff and Manpower should be dismissed with costs. 2. Manpower's appeal against the plaintiff and TNT should be dismissed with costs. 3. In light of (1) and (2) and subject to the liberty to apply reserved in par 32, the plaintiff's defensive cross-appeal in the Manpower appeal should be dismissed with costs. 4. TNT's appeal against Crown should be upheld, with costs, and orders made in TNT's Cross-claim against Crown giving TNT the benefit of a full

(contractual) indemnity against the liabilities TNT actually incurred (after allowing for the apportionment as between TNT and Manpower) in the litigation to the plaintiff (including liabilities as to costs at trial).

146 It seems to me that costs of the appeal referred to in (4) should not include those referable to the issues about non-delegable duties on which TNT and Manpower appeared to assume the labouring oar in the appeal. A rough and ready way of hiving them off would be to preclude TNT recovering from Crown its costs of the short second day of the appeal.

147 These broad-brush conclusions do not grapple with the intricacies caused by the fact that each party was a party to each appeal, with the exception that Manpower was not party to the Crown appeal.

148 The orders I propose are that the parties are directed to confer with a view to TNT filing in the Registry Short Minutes on or before 2 April 2003. TNT should at that time indicate the extent to which its proposed orders are not the subject of agreement and, in that event, propose a timetable for written submissions addressing outstanding issues. Liberty to apply. 149 DAVIES AJA: I have had an opportunity to read the reasons for judgment prepared by the President. I agree in general with his Honour's observations. However I prefer to express my own views on the liability of TNT Australia Pty Limited ("TNT").

150 I prefer to leave open any issue concerning the repair of plant which it is beyond the skill and ability of the employer to carry out and which must be carried out, for example, in premises and in the course of a business over which the employer has no control. I prefer to decide the present case on the more limited facts which were established by the evidence and by the findings of the learned trial judge.

151 The facts of the present case lie between the two situations posited by Lord Reid in Davie v New Merton Board Mills Limited [1959] AC 604 at 646 where his Lordship said:

"Where, then is the line to be drawn? On the one hand it appears that an employer is liable for the negligence of an independent contractor whom he has engaged to carry out one of what have been described as his personal duties on his own premises and whose work might normally be done by the employer's own servant - at least if the negligent workmanship is discoverable by reasonable inspection. On the other hand, for the reasons which I have given, I am of opinion that he is not liable for the negligence of the manufacturer of an article which he has bought, provided that he has been careful to deal with a seller of repute and has made any inspection which a reasonable employer would make. That leaves a wide sphere regarding which it is unnecessary, and it would, I think, be undesirable to express any opinion here."

152 A fundamental factor to be taken into account is that expressed by Mason J in Kondis v State Transport Authority (1984) 154 CLR 672 where his Honour said at 687 - 8:

"The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences."

153 Nevertheless, the duty is one of reasonable care. To recover damages from his employer, an employee who is injured as a result of the use of plant must show that there was a failure on the part of the employer to exercise reasonable care and skill in the selection, maintenance or repair of the plant. In Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121, the employee failed in his claim as negligence was not proved. At 160-1, Kirby J said:

"An employer does not warrant that equipment which it supplies to employees will not in any circumstances fail, causing harm. But the employer does owe a duty of care to procure suitable equipment and then to ensure that it is inspected from time to time against reasonably detectable risks of failure or deterioration. Whatever may have been the requirement in earlier times, a continuous duty, demanding vigilance and attention to the needs of accident prevention, is now imposed by the common law upon employers, enforceable in the case of breach causing damage by an action framed in negligence."

154 In the present case, it was not alleged that the pallet jacks of the type which were hired from Crown Equipment Pty Limited ("Crown") were not suitable for the work they were called upon to do or that Crown was not an apparently competent and responsible supplier of such jacks. The system in place for the repair of the jacks was described by Mr D L Anderson, a team leader employed by TNT, as follows:

"Q. You say that once a week the technician from Crown would come and inspect the vehicles, what would happen? A. They would come and do a regular service on them, grease and oil and all that sort of situation. Q. If there was a report of a malfunction of a vehicle, what was the procedure then? A. A call was placed with Crown for a service on a particular

machine. If the problem was known we would tell the person on the other end of the phone the problem and then a service person would come out and have a look at that machine. Q. that was in addition to the regular servicing on a weekly basis? A. That's correct, right."

155 This arrangement was a very proper arrangement for TNT to have with Crown. However it was not of itself a sufficient arrangement to satisfy the duty which the employer TNT had to its employees. TNT had a duty to check on the quality of the maintenance and repair which Crown provided and a duty to check that complaints about pallet jacks were dealt with adequately. Its duty was to take reasonable care to ensure that the pallet jacks provided for the use of employees were in good order and condition. 156 There was no evidence from Mr Anderson, the only witness called on behalf of TNT, that he or any other appropriate person gave personal attention to the pallet jacks to ensure that they could be used with safety. The team leaders appear to have left the matter entirely to Crown.

157 Moreover, Mr Christie, the present respondent, denied that there was any system in place for instructing employees as to the safe use of the pallet jacks.

158 Mr Anderson gave this evidence:

"Q. Just concentrating on the walk behind forklifts, what procedure was adopted in respect of a new employee in terms of training them in the operation of that forklift, can you tell us? A. There was nothing written down in as far as the training was concerned. Q. But what in practice was done? A. It was a verbal site thing that a new operator would be shown by the team leader concerned, how the machine went forward, reverse, stop, emergency stop, up and down and just the plain and simple basics with the machine. Q. How long would that process go on for, can you tell us? A. That indoctrination would probably take five to ten minutes."

159 By contrast, other training procedures were introduced after Mr Christie's accident. Handbooks were issued to employees and each operator was specifically instructed on the safety aspects of walk-behind forklifts, as the pallet jacks were called. Mr Anderson gave evidence that a system of pre-use checks was introduced that each employee was required to check each jack for the brakes, the lift up and down, the tilt forward and back, and the general safety of the jack before the employee took it away for use. Mr Anderson conceded in cross-examination that, prior to the accident, "it was just left to the individual workers to work out what to do". He said that the other procedures I mentioned were introduced after Mr Christie was injured and the Work Cover Authority became involved.

160 The evidence did not identify the cause of the malfunction in the pallet jack

which made it behave in the way Mr Christie said it behaved. However, Mr Christie gave evidence that, at a time when the handle of the jack was upright, the brake should have been locked on. When he turned the switch to reverse, the jack moved backwards over his foot before he could get out of the way.

161 Mr Christie gave evidence that about a fortnight before 4 July in 1997, he had complained to Mr Anderson that the pallet jack was faulty, that it went into forward or reverse when it ought not to do so and that it was dangerous.

162 It must be conceded that the totality of Mr Christie's evidence was not entirely consistent. However, the trial Judge specifically found for Mr Christie on this point. There was adequate evidence before the trial judge to justify that finding.

163 On 4 June 1997, a serviceman attended as a result of a complaint. The serviceman noted:

"Arrived on the site to find unit is stuck in forward. Safety reverse switch has been hit breaking switch. Renewed switch and will return. Returned on 5/6/97. Carried out PMP service as per service sheet. Found unit has intermit 3rd speed, renewed damaged wiring harness + handle bushes, cleaned all pod components - adjusted directional switches, greased all pivot points, unit is now lowering slow - will return. Returned on 6/6/97 - removed battery to get at flow control valve. Renewed valve - tested all functions of unit. Renewed valve - tested for leaks. Tested all functions of unit."

164 A Crown serviceman came to the premises on 23 June 1997. He noted the complaint as being "the unit had no third speed sometimes". The serviceman could not get the machine to fault. He found a loose wire and tightened it.

165 On 4 July 1997, the day following Mr Christie's accident, a serviceman examined the pallet jack for some time. He could find no fault with the brake. He directed his attention to a complaint of intermittent third speed. After investigation, he identified a loose wire which he tightened.

166 It was not suggested at the trial that the problem of intermittent third speed had any relationship to the accident in which the plaintiff was injured. However, it is relevant that there were complaints about the machine on 4 June 1997 and a great deal of work was undertaken. There were still complaints about the machine on 23 June 1997. On 4 July 1997, a serviceman again tightened a loose wire.

167 This evidence shows that complaints were made about the pallet jack, Servicemen from Crown called and attended to the jack at TNT's premises. However, their work was not adequate to repair the fault before the accident. The trial judge found, and his finding cannot be challenged, that Crown's servicemen were negligent. Yet, no responsible person such as Mr Anderson appears to have taken any personal interest in the matter, other than passing on requests for Crown to send a technician. There were three team leaders of whom Mr Anderson was one.

Mr Anderson gave no evidence that, apart from calling a serviceman, he personally troubled himself about the complaints which Mr Christie or other employees made or that he checked to see that the work that the Crown technicians did was properly done. For example, Mr Anderson said:

"We wouldn't be present when they did the service, we would just sign off."

168 In my opinion, the trial judge was entitled to find that TNT breached its duties. He expressed his finding against Manpower Services (Australia) Pty Limited in this way:

"I find that this duty of care was breached by the first defendant failing to adequately instruct and provide proper assistance to the plaintiff in the performance of his duties and failing to properly inspect, maintain and provide appropriate equipment for the plaintiff to undertake this task."

169 With respect to TNT, the trial judge expressed the same views in a slightly different way saying:

"In those circumstances notwithstanding the absence of expert evidence on the question, it is only commonsense that the second defendant should have taken steps to acquire a system of work which would have in the circumstances protected the plaintiff from the risk of injury which came home in this case from a faulty pallet jack."

170 The present is not a case where plant was sent away for repair by an ostensibly competent independent contractor in a business with which the employer TNT was not connected. In the present case, all relevant events occurred in TNT's premises and, insofar as TNT was concerned, in the course of the conduct of TNT's business. Mr Christie had complained of the fault in the pallet jack. Other employees complained of faults in the jack. Crown technicians were called and repaired or purported to repair the jack at TNT's premises. All this occurred when senior members of TNT's staff such as Mr Anderson were in a position to but did not supervise and check what was done.

171 Moreover, the senior employees of TNT failed to institute an adequate system for training employees in the handling of the machines and for the testing of the machines prior to use.

172 In my opinion, it was open to the trial judge to find as he did that TNT breached its duty of care to its employee Mr Christie.

173 I agree with the orders proposed by the President. I specifically agree with paragraph 111-119 of the President's reasons. TNT is entitled to a contractual indemnity from Crown. Moreover, Crown's culpability so outweighed that of TNT that Crown should bear sole responsibility for the injury and loss which occurred.

174 FOSTER AJA: I have had the advantage of reading, in draft, the judgments of Mason P and Davies AJA. I agree with the orders proposed by Mason P and, in general, with his Honour's reasons. As the case is a complex one, I wish to add the following remarks of my own in relation to the issue of negligence. In the circumstances, I can be fairly brief. I shall use the same abbreviations of the parties' names, as appear in his Honour's judgment.

175 It is clear that Manpower, as employer of the plaintiff, owed to him a duty of care, conventionally described as being "non-delegable". This duty was one of taking reasonable steps to provide him with equipment, which was safe for the purpose of his carrying out the tasks of his employment. In this case, the relevant equipment was, of course, the forklifts described as "pallet jacks".

176 This duty of care, so defined, was "non-delegable" in the sense that if the performance of it was transferred or delegated to another, the employer Manpower would, nevertheless, remain responsible for its proper performance by the delegate. In the present case the delegate was TNT, to which company Manpower had hired its employee, the plaintiff.

177 Manpower's duty of care to the plaintiff, in these circumstances, could not be fulfilled, simply on the basis that Manpower could reasonably regard TNT as being a reputable and skilful organisation capable of fulfilling the relevant duty of care to the plaintiff. It had the obligation of ensuring that the duty was fulfilled. It is clear that it took no such steps, with the result that if TNT failed in its duty, Manpower would also be liable to the plaintiff.

178 Although TNT was not the original employer of the plaintiff, I am satisfied that, as a matter of common sense, it should be regarded as having the same duty to the plaintiff as an employer. Although, there was no transfer of employment from Manpower to TNT, pro hac vice, TNT clearly assumed employer-like responsibilities consistent with its overall control and direction of the plaintiff in the workplace. In particular it had the responsibility of taking appropriate steps to provide the plaintiff with reasonably safe working equipment, namely the pallet jacks. Although this equipment was hired by it from Crown, on the basis that Crown would maintain and service it, this did not mean that it was absolved from its own duty of care. I am satisfied, for the reasons which are given in greater detail in the judgment of Mason P, that TNT had, in fact, the same non-delegable duty of care to the plaintiff in relation to the provision of the pallet jacks, as did Manpower.

179 The result is that TNT could not discharge its duty simply by its selection of Crown, pursuant to its agreements with Crown, as a reputable and skilful supplier, maintainer and servicer of these pieces of equipment. If Crown negligently supplied, maintained or serviced the pallet jacks supplied under its agreements with TNT for use by the plaintiff, then that negligence would, itself, constitute a relevant breach of TNT's duty of care to the plaintiff.

180 I am satisfied, also, that in addition to this secondary or derivative aspect of its duty of care, TNT, as part of its duty, had a responsibility, shared with Manpower, to, as it were, maintain a watchful eye over the work of Crown in relation to the

maintenance and servicing of the equipment. This duty could not be discharged merely by "signing-off" on Crown's work in relation to the servicing of the equipment.

181 In so saying, I rely upon the following passage from the judgment of Kirby J in Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121 at 160:

"An employer does not warrant that equipment which it supplies to employees will not in any circumstances fail, causing harm. But the employer does owe a duty of care to procure suitable equipment and then to ensure that it is inspected from time to time against reasonably detectable risks of failure or deterioration. Whatever may have been the requirement in earlier times, a continuous duty, demanding vigilance and attention to the needs of accident prevention, is now imposed by the common law upon employers, enforceable in the case of breach causing damage by an action framed in negligence."

182 It should be observed, however, that no reasonable criticism can be levelled at TNT in respect of the general procedures that it established in relation to the use by its employees, including the plaintiff, of the pallet jacks. It instituted, in accordance with its agreement with Crown, a system of weekly preventative servicing of the equipment, which was consistent with the heavy use of it in TNT's business. Each of the hired pallet jacks was inspected and serviced on a weekly basis. The evidence as to the nature of the service is by no means clearly spelt out but indicates that a performance check, together with the lubrication of appropriate working parts, was performed. In addition to these weekly routine services, there was a "call-out" procedure whereby if an individual pallet jack malfunctioned during use, it was immediately taken out of service, appropriately labelled as being out of use, and was the subject of a prompt service inspection by Crown. It seems that these inspections took place at TNT's premises. I am satisfied that these general procedures could not be criticised as inappropriate but, as I have said, were, in themselves, insufficient to discharge TNT's duty of care to the plaintiff.

183 The result is, accordingly, that if Crown were shown to be negligent in the performance of its maintenance and repair services in respect of any of the pallet jacks, resulting in the equipment becoming unsafe for use by an employee, then there would be a breach of TNT's duty of care to that employee.

184 It is, thus, a question of major importance in this appeal, whether the evidence can establish negligence on the part of Crown in relation to the maintenance and servicing of the pallet jack, which occasioned the plaintiff's injury. I shall consider this question later in these reasons.

185 Before doing so, it is convenient to consider a preliminary matter. It is clear that, after the plaintiff's accident, certain changes were made in the training of TNT's employees in the operation of the pallet jacks. Although the evidence is fairly sparse, it would appear that, prior to the accident, the training was fairly limited. The equipment was of a "walk-behind" type and, it seems, was fairly simple in its

operation. It is, in my view, perfectly plain on the evidence that the plaintiff's injury was occasioned by a malfunction of the equipment, in that, whilst the operating handle was in the upright braking position, the equipment, nevertheless, slipped into reverse gear, came backwards, and ran over his foot. The plaintiff had, quite appropriately, placed the handle in the braking position. The result was not occasioned by any failure of the plaintiff to observe normal operating procedures. There is no evidence that any additional training would have prevented the accident occurring in the way that it did. Accordingly, in my opinion, any claim against TNT or Manpower based upon alleged inadequacies in the plaintiff's training, must necessarily fail.

186 I shall consider, later, whether there has been demonstrated any relevant breach by TNT, and hence of Manpower, in relation to its personal duty of overall supervision, to which I have referred above. It is convenient, at this stage, to consider whether negligence has been demonstrated on the part of Crown.

187 In submitting that no negligence has been demonstrated, counsel for TNT has relied upon principles relating to the proof of negligence, to be derived from cases of high authority such as Neill v New South Wales Fresh Food and Ice Pty Limited (1963) 108 CLR 362, Australian Iron and Steel Limited v Krstvski (1973) 128 CLR 668, Kingshott v Goodyear Tyre and Rubber Co. Australia Limited (1987) 8 NSWLR 707 and Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121. Cases in the same area, such as Piening v Wanless (1967-1968) 117 CLR 498, Mummery v Irvings Pty Limited (1956) 96 CLR 99 and Vozz v Tooth & Co Limited (1964) 112 CLR 316) are also in point. 188 These cases all raise questions as to the level and nature of proof required, where a plaintiff claims in negligence in respect of work injuries occasioned to him from the use of his employer's equipment. The same questions arise for consideration, in the present case, in the context that no evidence was given, on behalf of the plaintiff, as to the nature of the machinery of the pallet jacks or as to the precise cause of its malfunction, on the occasion of the plaintiff's accident. The question posed, in these circumstances, is whether, in the absence of such evidence, there can exist a prima facie case of negligence on the part of Crown in the maintenance and servicing of the relevant pallet jack.

189 Although the argument in favour of the finding of negligence in Crown was not put in terms of the doctrine of res ipsa loquitur, it was, nevertheless, clearly based upon inferences submitted to be capable of being drawn from established facts. To that extent, the reasoning in the res ipsa cases is in point.

190 This is especially so in light of the fact that those cases have recently received the continuing approval of the High Court in Schellenberg.

191 In Piening the plaintiff, a passenger in a car, was injured when it swerved suddenly from one side of the road to the other, left the road and overturned. There was no dispute that this was caused by a failure of the steering mechanism. It was held by the High Court that the failure of the steering mechanism, of itself, afforded no evidence of negligence. In the Supreme Court of New South Wales it had been held that the failure of the steering was an occurrence, which, within the meaning of

the doctrine, bespoke negligence. Barwick CJ (at p 506) observed that the fact of the car's running off the road could "no doubt in some circumstances....provide evidence of lack of care in the management of the car", but the failure of the steering mechanism did not furnish such evidence. Even though not a usual occurrence, it did not mean that "it is more likely than not that it results from a lack of care in maintenance and, particularly in that class of maintenance which the average driver ought reasonably make or to procure." His Honour went on to say (at p 508) "If the occurrence is to provide evidence, it can only be that, within the common knowledge and experience of mankind, that occurrence is unlikely to occur without negligence on the part of the parties sued." Such an occurrence was "unlikely to provide evidence except in connection with machines or machinery of whose working and use the ordinary man has knowledge and experience." His Honour further observed that he did not think "that the mechanical makeup of, and forces operating on or with, the steering mechanism of a car are within such knowledge or experience."

192 Such an analysis, in the present case, could produce the result that the sudden and unexplained movement of a stationary pallet jack on a level floor might bespeak negligence on the part of those having its care and control. This available inference disappears when further facts are known such as the fact, in the present case, that the pallet jack was not only stationary but was stationary with its braking mechanism applied which, prior to its sudden movement, was, apparently, maintaining the jack in that position. In these circumstances, it is arguable that the failure of the braking system cannot lead to any inference of negligence on anyone's part, any more than could the failure of the steering mechanism in Piening.

193 Consequently, so the argument runs, the question of negligence or no negligence requires an investigation as to the nature of the braking mechanism and an explanation of the cause of its failure on the occasion of the accident. No such investigation was undertaken in the present case and no such explanation has been proffered.

194 If the case in negligence brought against Crown depended upon no more than the fact that, whilst Crown was charged with the care and maintenance of the pallet jack, it moved while its brake was engaged then, in my view, there would be a failure on the part of the plaintiff to establish against Manpower or TNT a prima facie case of breach of their duty of care. More would be needed to establish such a case. 195 Such a case would, ideally, consist of an acceptable scientific explanation of the cause of the brake failure in terms of the design and ordinary working of the equipment, coupled with proof of the manner in which the existence of the potential danger could reasonably have been discovered on ordinary routine inspection, or upon any non-routine inspection required because of signs pointing to the danger of malfunction of the braking mechanism. Again, no such evidence was offered in this case.

196 The question remains, however, whether the evidence that was given, even though falling short of the ideal, was, nevertheless, productive of an inference of negligence sufficient to require rebuttal by evidence called on behalf of the

defendants. There was no evidence called by the defendants to explain the behaviour of the machine or to support its proper repair or servicing. This being so, any inference in favour of negligence, if such inference could properly be drawn in favour of the plaintiff, would necessarily be strengthened. (Jones v Dunkel, (1959) 101 CLR at 298).

197 My consideration of the evidence in the case leads me to the conclusion that it supports a prima facie inference that Crown was negligent in the maintenance and servicing of the pallet jack. My reasoning is as follows.

198 The particular malfunction which caused the plaintiff's injury was of a significantly dangerous kind. It occurred, notwithstanding that the braking system had been properly applied, through the plaintiff's placing of the control handle in the upright position. The result of the malfunction was that the machine moved in a sudden, unexpected and uncontrolled fashion which was plainly dangerous to persons in its vicinity.

199 The malfunction was especially dangerous, as it was intermittent in nature. It could thus occur in circumstances where the braking system was apparently working correctly. In the present case the plaintiff, as his Honour found, had checked the working of the braking system, through the appropriate elevation of the control handle, when he had taken the machine from the store for the purpose of doing his day's work. There was then no sign of the problem which later eventuated.

200 The particular pallet jack had a history of malfunction. The evidence in relation to this was somewhat confused. It appeared that it had displayed a propensity to move in too fast a fashion when in third gear. This had led to its being reported as defective and to its servicing by Crown. More importantly, however, as his Honour found, the plaintiff had on at least one prior occasion, close to the date of the accident, reported that the machine had, whilst the braking system was engaged, slipped into gear and moved, of its own accord, both forward and in reverse. This had led to its being serviced on 23 June by Crown, after which it was pronounced fit for use and simply but back into service.

201 The nature of this malfunction and its intermittency constituted a significant danger which, when it was reported, in my opinion, called for particular care in its diagnosis and repair. The machine was not only inefficient in its operation but was also a danger to its operator and others in its vicinity.

202 Although there was no evidence as to the precise design of the machine, there was sufficient to indicate that it was operated electrically, being powered by a battery, and that its movements were controlled through a rotating handle on the end of the control arm. In my opinion, in these circumstances, it would be within the realm of ordinary human experience to know that the flow of the energising electric current would be controlled by appropriate switching devices activated through the operator's use of the control handle. Also, although the workings of the machine were not explained in evidence, there was nothing to suggest that they were particularly complicated or would have presented any unusual problems to an ordinarily skilled serviceman.

203 Such evidence as existed relating to the cause of the malfunction is set out in the judgment of the learned trial judge and summarised in the judgment of Mason P. Mr Anderson, the relevant team leader at TNT, was present when the Crown serviceman was inspecting the pallet jack after the accident on 3 July 1997. He said, in evidence, that, to the best of his recollection, the serviceman had said that there was a problem with a micro switch in that "the charge wasn't going past the micro switch or some situation." He also observed a WorkCover inspector and the Crown serviceman conducting an inspection of the machine the day after the accident, when the same intermittency of malfunction appears to have been demonstrated. The operating handle was not operating effectively to put the machine into reverse. Mr Anderson, in describing the situation, said "They tried a couple times and it didn't happen and the third or fourth time it made contact and then it came back into reverse." Plainly the earlier servicing on 23 June had failed to locate and fix this serious malfunction.

204 It appears from the evidence that the operating handle itself was of a non-standard kind. After the accident it was removed and replaced with a standard kind of handle. It appears that the malfunctioning then ceased.

205 In my opinion, despite the absence of expert evidence, the following inferences of negligence can be drawn in favour of the plaintiff:

(a) The inspection and repair carried out by Crown on 23 June was quite inadequate, having regard to the serious nature of the reported malfunction; (b) TNT, itself, should have tested the machine to see whether the intermittent malfunctioning had been removed, before placing it back into service. Having regard to its "continuous duty" (see Kirby J Schellenberg page 160), it had, in the circumstances, an obligation to do so. (c) An adequate prior inspection would have resulted in the substitution, at that stage, of a safe control handle (in which, no doubt, the relevant micro switch or switches were situated).

206 These considerations, based upon the available evidence, point, in my opinion, to the establishment of a prima facie case of negligence against both Crown and TNT in their handling of the obviously dangerous situation created by the intermittent malfunction of the relevant pallet jack. The absence of any evidence from Crown strengthens the available inference of negligence.

207 Accordingly, I am of the view that the attack on this aspect of the learned trial judge's decision must fail.

208 As already indicated, I respectfully agree with the other aspects of the reasoning of Mason P. Accordingly, as already indicated, I agree with the orders proposed.

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