Author: Melinda Conry
Judgement Date: 9th October, 2013
Citation: Australian Winch & Haulage Company Pty Limited v Collins  NSWCA 327
Jurisdiction: Court of Appeal 
The plaintiff was employed by Sydney Ports Corporation (Ports) as a Port Officer Grade 2 (Engineer). In the course of his employment, the plaintiff was required to board vessels moored at Port Botany. To do so, he was required to walk across an emergency response jetty gangway.
On 23 July 2001, the plaintiff was walking across the gangway when it rotated suddenly, violently propelling the plaintiff onto the wharf below. The movement was caused by the failure of a shackle linking to a counterweight used in the gangway. The plaintiff suffered serious injury as a result.
The plaintiff sued his employer – Ports – and Australian Winch & Haulage Company Pty Limited (AWH). AWH had supplied a stainless steel shackle to Ports. It was alleged that AWH had not ordered the proper shackle, in that the shackle installed was not suitable for use in seawater, and had corroded as a result of its submersion, which had resulted in its failure.
Decision Under Appeal 
In the decision under appeal, Ports did not dispute that it had been in breach of its statutory duty, in that it had failed to provide safe means of access to every place which the plaintiff was required to work, contrary to Regulation 73 of the Construction & Safety Regulations 1950. The plaintiff also contended that Ports owed him a non-delegable duty of care, which it breached as a result of AWH’s failure to exercise reasonable care in supplying the proper shackle. This argument was accepted by the trial judge, Harrison J.
His Honour also found that Ports, despite knowing the gangway had failed in the past, did not implement any regular inspection or maintenance regime for the underwater stainless steel components of the gangway. Rather, it waited until something went wrong and then called AWH to fix the particular fault – this was considered by Harrison J to be “clearly inadequate”.
In relation to the duty of a contractor in the position of AWH, Harrison J found that AWH was negligent in supplying the defective shackle. AWH’s duty included exercising reasonable care to select and install a grade of shackle that was reasonably fit for the intended purpose, in this case, for submersion in seawater.
AWH contended that it had in fact ordered a Grade 316 shackle (ie waterproof shackle) from its supplier. However, Harrison J found that the evidence did not support this assertion, and accordingly the failure of AWH to order a suitable shackle created a “clearly foreseeable and not insignificant risk of very serious injury to a worker” pursuant to s 5B of the Civil Liability Act 2002 (CLA).
In determining the apportionment between AWH and Ports, Harrison J noted that Ports was the plaintiff’s employer and in effective control of the gangway that failed. Ports were responsible for the gangway and for its upkeep and maintenance. The gangway had failed before, so that a degree of diligence that one might have expected would be assigned to it would have been “high”. Ports did not regularly inspect or methodically maintain the gangway. Rather, they took a reactive approach to the gangway and its maintenance in response to problems. That, in his Honour’s view, “had the unfortunate and inevitable consequence that a failure sooner or later was predictable, if not inevitable, but was in any event preventable”.
In terms of AWH, Harrison J found that the role of AWH amounted to more than “momentary inadvertence”. The performance of the shackle was central to the performance of the gangway.
Harrison J found that a “just and equitable apportionment between Ports and AWH” was 65% to the former and 35% to the latter.
Judgment for the plaintiff against both Ports and AWH was in different amounts, reflecting the different statutory regimes governing the assessment of damages against negligent employers and negligent third parties. Judgment was entered against Ports for $1,141,238.00 and against AWH for $1,368,304.70. His Honour also directed judgment for Ports against AWH for contribution in the sum of $399,433.30 and judgment for AWH against Ports for contribution in the sum of $741,804.70.
In relation to costs, Harrison J ordered that AWH was to recover 65% of its costs on its cross‚Äëclaim against Ports and Ports will recover 35% of its costs on its cross‚Äëclaim against AWH.
Harrison J also gave a supplementary judgment dealing with various issues including a claim for interest on past damages and funds management. 
The plaintiff claimed for pre‚Äëjudgment interest under s 100 of the Civil Procedure Act 2005, and as modified by s 151M(4)(a)(i) and (ii) of the Workers Compensation Act (WC Act). Ports argued that interest ought not to be awarded, in that it had not been appropriate for Ports to make any settlement offer because AWH was a co‚Äëdefendant and there were unresolved contribution claims between the co‚Äëdefendants. Harrison J rejected this argument stating that although it is true there were two defendants involved and damages against each of them fell to be assessed by reference to different statutory regimes, that is “not an uncommon occurrence in industrial litigation in this state and is not obviously a factor that derogates from the appropriateness of making an offer of settlement”. Interest was consequently awarded on past damages.
In terms of funds management, the parties had agreed on the sum of $100,000 towards this head of damage. It was argued at trial that this claim was precluded because the plaintiff had not included it in his amended pre‚Äëfiling statement of 17 November 2008, served in compliance with s 315 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act).
The plaintiff submitted that it was not until he received a joint report from two clinical neuropsychologists in April 2011 that the need for assistance in funds management was identified. Harrison J granted leave for the plaintiff to file an Amended Statement of Claim stating that the medical material concerned “was not reasonably available to Mr Collins when his pre‚Äëfiling statement was served”. Harrison J also stated he was satisfied a failure to grant leave to the plaintiff would substantially prejudice his case, in that “[t]he inability to recover that sum in the circumstances of this case would in my view alone be a matter of substantial prejudice to Mr Collins.”
Court of Appeal
On appeal AWH submitted that the primary judge had erred in finding AWH had not ordered a Grade 316 shackle (ie a shackle that could be submerged in seawater) from its supplier. That is, it was incorrect to hold that AWH bore the legal burden of proving it had ordered a suitable shackle, and there was no evidence to support the finding that AWH had not ordered a Grade 316 shackle.
It was also argued the primary judge erred in apportioning to AWH 35% of the responsibility for the plaintiff’s damages.
AWH also challenged the orders made by Harrison J concerning indemnity costs consequent to the service of an Offer of Compromise by the plaintiff.
Ports sought leave to file a Notice of Cross‚ÄëAppeal. Although Ports accepted it had a non‚Äëdelegable duty to the plaintiff, Ports submitted Harrison J erred in finding the absence of a proper system of inspection and maintenance of the gangway caused the plaintiff’s injuries. Ports claimed that the evidence showed the deterioration responsible for the failure of the shackle would not have been discoverable through a visual inspection, even if one had been carried out.
Ports also submitted Harrison J ought to have attributed a greater share of responsibility to AWH for the plaintiff’s loss and damage. This was on the basis that the shackle had been sourced, selected and installed entirely by AWH. Ports also challenged the primary judge’s conclusions the plaintiff was entitled to claim the costs of funds management and receive interest on his award of past damages.
Sackville AJA found that the onus of proving that AWH did not order a suitable shackle rested upon the plaintiff. His Honour engaged in a lengthy discussion of the evidence at trial and noted that it was open for Harrison J to infer from the evidence that AWH did not in fact order a Grade 316 shackle from their supplier. In particular, Sackville AJA noted there was no documentary evidence in the form of an order form or invoice to support AWH’s assertion.
Sackville AJA concluded that plaintiff had established on the balance of probabilities that AWH did not order a shackle suitable for use in seawater. Hence the primary judge’s finding on this issue “should stand, even though his Honour did not apply the burden of proof correctly”.
Ports challenged the primary judge’s finding that its failure to institute a system of inspection and maintenance of the gangway was a material cause of the plaintiff’s injuries. It was contended that although the experts agreed that regular above water inspections of the shackle should have been undertaken, the evidence was that the deterioration responsible for the failure would not have been apparent to a visual inspection. The failure of the shackle in this case was argued to be due to intergranular corrosion initiated at crevices between the pin and the eye of the shackle. Evidence was said to have been adduced at trial that the corrosion “would not have been readily visible because it was occurring within the shackle and travelling through the micro‚Äëstructure”.
Sackville AJA found that the primary judge was justified in finding that if Ports had implemented a proper system of inspection and maintenance at the time the shackle was installed (if not before) the system would probably have detected the dangerous corrosion of the shackle and thus prevented the plaintiff from being injured by the failure of the shackle.
In relation to the apportionment of damages, Sackville AJA expressed a view that Ports had advanced no additional reasons of any cogency for disturbing the primary judge’s apportionment of responsibility of 65% to it and 35% to AWH. Sackville AJA noted the question of apportionment involves the exercise of discretion and appellate deference to the exercise of discretion by the tribunal of fact is “well established” see Podrebersek v Australian Iron Steel Pty Limited . Sackville AJA noted the primary judge’s findings that no steps were taken by Ports to institute a proper system of inspection and maintenance, or to incorporate a failsafe mechanism, despite previous incidents, provided a sound basis for his Honour to allocate the greater responsibility for the plaintiff’s damages to Ports.
In terms of AWH’s similar challenge concerning apportionment, Sackville AJA noted that while the shackle was an inexpensive piece of equipment, the foreseeable consequences of using an unsuitable shackle were potentially (and, as it turned in actuality) very serious indeed.
Accordingly, Sackville AJA found that no basis had been shown for interfering with the primary judge’s apportionment of responsibility between AWH and Ports.
In relation to funds management, Sackville AJA found that Ports had not identified any error in the primary judge’s conclusion that the plaintiff’s damages against it should include a component for the costs of funds management. His Honour found it was open to the primary judge to find that the plaintiff’s case would have been substantially prejudiced if leave were not granted, since he would be unable to claim a head of damages that (as the parties had agreed) could support an award of $100,000.
Ports also challenged Harrison J’s ruling that the plaintiff was entitled to pre‚Äëjudgment interest stating that as funds management was not claimed until nearly the end of the trial, Ports never had a reasonable opportunity to make an offer in respect of the plaintiff’s full entitlement toward damages. It was also claimed that the different statutory regimes governing damages on the cross‚Äëclaims between Ports and AWH made it inappropriate for Ports to make an offer of settlement.
Sackville AJA found that s 151M(4)(a)(i) of the WC Act ought to be constructed in terms that relate to a defendant having a reasonable opportunity to make an offer of settlement to the plaintiff’s claim to damages as formulated at the time the opportunity is said to have been available to the defendant. Sackville AJA found that Ports had a reasonable opportunity to make an offer of settlement of the kind identified in s 151(4)(a)(i), but did not do so. Sackville AJA agreed with the primary judge that Ports had advanced no compelling reason why it was inappropriate for it to make an offer of settlement in the plaintiff’s claim and noted that Ports did not explain why the different damages regime applicable to each defendant prevented it from making an offer of settlement to the plaintiff while preserving its entitlement to seek contribution from AWH. Accordingly, Sackville AJA considered Ports’ second argument on the issue of interest must also be rejected.
Sackville AJA found the primary judge erred in ordering Ports to pay the plaintiff’s costs of the proceedings. There was no dispute that the plaintiff’s claim for damages against Ports was a claim for “work injury damages” as defined in s 250 of the WIM Act. Regulation 106 confirmed that the parties to the proceedings are to bear their own costs, and the exceptions as found in regulations 104 and 105 had no application to the case.
In relation to costs between Ports and AWH, Sackville AJA agreed with Ports’ submission that since it and AWH each succeeded on the respective cross‚Äëclaims, the appropriate costs order is for each cross‚Äëdefendant pay the cross‚Äëclaimant’s costs of the cross‚Äëclaim.
Sackville AJA’s consequent orders included:
Emmett JA agreed that the primary judge was justified in finding that, if Ports had implemented a proper system of inspection and maintenance at the time when the shackle in question was installed, its corrosion would probably have been detected and the plaintiff’s injuries that resulted from its failure would have been prevented. Emmett JA also agreed with the conclusion of Sackville AJA that no basis had been shown for interfering with the apportionment of responsibility as between AWH on the one hand and Ports on the other.
Leeming JA agreed with the orders of Sackville AJA.
The onus of proof in establishing inappropriate equipment has been used falls on a plaintiff.
The case reinforces the importance of making regular safety inspections of work sites, and taking steps to have appropriate maintenance regimes of equipment. The onus of proof falls on a plaintiff to prove that the absence of such a system constitutes a breach of duty.
Once breach of duty has been established, the onus is on the plaintiff to prove the breach was causative of his or her injuries in accordance with common law principles in the case of a claim against an employer and in accordance with s 5E of the CLA in respect of a claim against a third party.
There is no reason why one or both defendants who are subject to different damages regimes cannot serve an offer of settlement on the plaintiff. In respect of a claim against an employer this is a requirement under s 151M(4)(a)(i) of the WC Act where it is appropriate to do so.
In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph , Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph , Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph : "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.
The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane  NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.
The recent decision in New Aim Pty Ltd v Leung  FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.