[This headnote is not to be read as part of the judgment]
In 2006 Mr Matthew Coote, the appellant, was employed by Boral Construction Materials Group Ltd (“Boral”) as a plant operator at an asphalt batching plant in Coffs Harbour. In about June 2006, Boral contracted with the respondent to provide a 15 tonne Tadano crane and related equipment in order to clear a blocked dust extraction unit located at the plant some 15 metres above ground level.
On 17 June 2006 the crane lifted a workbox containing Mr Coote and an employee of the respondent, Mr Currie, to the height of the dust extraction unit. The crane was being operated by another employee of the respondent, Mr French. The workbox had been suspended for between 30 and 45 minutes when Mr Coote requested that the box be lowered by one or two metres. After being raised slightly to enable the lowering to occur, the workbox suddenly fell to the ground while still attached to the crane’s fly jib. Mr Coote and Mr Currie suffered serious injuries.
On 23 July 2011, Mr Coote commenced proceedings against the respondent in the District Court claiming damages for negligence. Subsequently, he also commenced proceedings against it under the Motor Accidents Compensation Act 1999 (NSW).
By judgment of 18 October 2013, Gibson DCJ held that the respondent was not liable in negligence and that Mr Coote’s claim under the Motor Accidents Compensation Act failed because his injuries were not sustained in a “motor accident”. Her Honour also gave reasons for having rejected an application made by Mr Coote on the third day of the hearing to supplement his particulars of negligence by alleging operator error, as distinct from a failure of the respondent to properly maintain the crane, the latter being the topic with which the reports prepared by Mr Coote’s expert had dealt.
Mr Coote appealed only against the judgment in the negligence action.
Held, dismissing the appeal (Macfarlan JA; Barrett and Leeming JJA agreeing):
(1) In examining an issue which provides the foundation for a finding of negligence, it is necessary for the Court to reach “a definite conclusion affirmatively drawn” (). It is not enough if the evidence gives rise only to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture ().
Jones v Dunkel  HCA 8; 101 CLR 198 at 304-5, followed.
(2) The primary judge’s preference for the theory advanced by the respondent’s expert as to the cause of the accident was well-founded (-). Even if it were not, there would not be any basis for the Court to reach “a definite conclusion affirmatively drawn” that the appellant’s expert had correctly identified the cause of the accident ().
(3) The evidence did not establish that any step that a reasonable person in the respondent’s position would have taken would have avoided the accident (, ). As a result, on neither theory of the cause of the accident was causative negligence proved ().
(4) The appellant’s challenge to the primary judge’s decision to reject his application to amend the particulars of negligence has not succeeded (, ). An adjournment was inevitable if the amendment were allowed so as to enable the respondent to obtain Mr French’s instructions on the new case and to allow for a further exchange of expert reports (-). Further, the proposed new particulars were not supported by the evidence before the primary judge ().
(5) (per Leeming JA, Barrett JA agreeing) There was no explanation for the failure to serve evidence about any changed opinion as to the operator’s culpability earlier, or for the absence of such a case being pleaded and particularised. In those circumstances, there was no appellable error in holding the plaintiff to the course adopted prior to and during the course of the trial (-).
Macfarlane JA with whom Barrett and Leeming JJA agreed:
22. In examining an issue which provides the foundation for a finding of negligence, it is necessary for the Court to reach “a definite conclusion affirmatively drawn” (Jones v Dunkel  HCA 8; 101 CLR 298 at 305). It is not enough if the evidence gives rise only to “conflicting inferences of equal degree of probability so that the choice between them is [a] mere matter of conjecture” (Jones v Dunkel at 304-5 citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5; see also Luxton v Vines  HCA 19; 85 CLR 352 at 359-360; Condos v Clycut Pty Ltd  NSWCA 200 at ; and Minogue v Rudd  NSWCA 345 at ).
Negligence and causation
31. On Mr Kiem’s theory, the occurrence was a rare, unforeseeable event. Neither expert suggested that any step the respondent could reasonably have taken would have avoided the accident occurring if it was caused as Mr Kiem described.
32. On Mr O’Brien’s theory, the risk of malfunction due to wear was foreseeable. However, the evidence did not establish that any step that a reasonable person in the respondent’s position would have taken would have detected the wear prior to the accident. Mr O’Brien accepted in cross-examination that in the absence of knowledge of a problem with the operation of the clutch, ordinary maintenance services, other than the 10 year and 25 year major services, would not have identified the wear to which he referred (Transcript p 103). Only in those services would the clutch valve be removed and checked.
33. As the subject crane was 24 years old, it had not yet reached the time for its 25 year service. Although Mr O’Brien was not able to find any record that the crane had undergone a 10 year service, that is not a sufficient basis for inferring that it had not, particularly in light of the change of ownership which occurred in the meantime. In any event, Mr O’Brien accepted in cross-examination that the wear in the valve that he thought was significant may well not have been present or visible at the time of the 10 year service (Transcript p 107).
34. As to any knowledge of the respondent that the crane was not operating normally, I refer to  and  above concerning Mr French’s interview and the evidence at  above that slow leakage is commonplace with old cranes.
35. As a result, on neither theory of the cause of the accident was causative negligence proved.
David Cormack – Brisbane Barrister & Mediator