Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371
• Hearing dates: 21 August 2014
• Decision date: 30 October 2014
• Before: McColl JA (at [1]), Macfarlan JA (at [115]), Tobias AJA (at [116)

Decision

(1) Grant leave to appeal.

(2) Appeal allowed.

(3) Set aside the orders made by Curtis DCJ on 30 July 2013.

(4) Remit the matter to the District Court for a new trial.

(5) Costs of the first trial to be in the discretion of the judge presiding at the second trial.

(6) Respondent to pay the appellant's costs of the appeal and the application for leave to appeal and to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - negligence - whether primary judge failed properly to consider issues of scope of duty of care, risk of harm, breach and causation as required by s 5B, s 5C and s 5D Civil Liability Act; TORTS - negligence - appellant required to clean kitchen benches in accordance with work instructions prepared by respondent - work instructions required appellant to wash bench with detergent and then rinse with hot water - absent hot water supply from tap appellant heated hot water on stove - hot water burnt appellant - appellant claimed respondent negligent for requiring him to heat water in circumstances where he could not gauge its temperature - where primary judge dismissed claim on basis appellant deliberately boiled water - basis on which case dismissed not relied upon by respondent and not put to appellant; PROCEDURAL FAIRNESS - whether appellant denied a fair trial - whether primary judge's conclusion appellant deliberately boiled water open on evidence - obligation of witnesses answering questions by counsel - where appellant not given opportunity to respond to primary judge's hypothesis - reliance on medical histories to found inference adverse to appellant; APPEAL - new trial - whether substantial miscarriage of justice - whether primary judge's error material to outcome; APPEAL - competence - whether leave to appeal required - where small sum involved - whether question of principle or issue of general public importance involved; APPEAL - whether appeal as of right - whether matter at issue amounting to a value of $100,000 or more - obligations of legal practitioners preparing affidavit as to "material facts" seeking to establish appeal as of right - District Court Act 1973 (NSW), s 127(2)(c); Uniform Civil Procedure Rules 2005 (NSW) r 51.22
• Legislation Cited: Civil Liability Act 2002 (NSW); Civil Procedure Act 2005 (NSW); Commonwealth Places (Application of Laws) Act 1970 (Cth); District Court Act 1973 (NSW); Suitors' Fund Act 1951 (NSW); Supreme Court Act 1970 (NSW); Uniform Civil Procedure Rules 2005 (NSW)
• Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420; Alchin v Daley [2009] NSWCA 418; Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580; Bracks v Smyth-Kirk [2009] NSWCA 401; Brown v Dunn (1893) 6 R 67; Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33; Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288; Dixon v Whisprun Pty Ltd [2001] NSWCA 344; Freeman v G J Coles & Co Ltd [1967] 1 NSWR 297; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540; Groves v Commonwealth [1982] HCA 21; (1982) 150 CLR 113; Gulic v O'Neill [2011] NSWCA 361; Jaycar Pty Limited v Lombardo [2011] NSWCA 284; Jensen v Ray [2011] NSWCA 247; Jones v National Coal Board [1957] 2 QB 55; [1957] 2 All ER 155; Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361; Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1; Maynes v Casey [2011] NSWCA 156; Ozpinar v Assaily [2001] NSWCA 23; Pawlowska v Zajglic [2011] NSWCA 118; R v Porter [2001] NSWCCA 441; (2001) 53 NSWLR 354; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330; Schepis v Commonwealth [2012] NSWCA 398; Seage v State of New South Wales [2008] NSWCA 328; Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141; Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16; Tory v Megna [2007] NSWCA 13; Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140; Weiss v R [2005] HCA 81; (2005) 224 CLR 300
• Category: Principal judgment
• Parties: Grant Tyson Lorrimar - Appellant; Serco Sodexo Defence Services Pty Ltd - Respondent
• Representation: Counsel: P A Beale - Appellant; N J Polin - Respondent; Solicitors: CMC Lawyers - Appellant; Davidson Legal Pty Ltd - Respondent
• File Number(s): 2013/253913, 2013/369930
• Publication restriction: No

Decision under appeal

• Citation: Grant Tyson Lorrimar v Serco Sodexo Defence Services Pty Limited (District Court of New South Wales, Curtis DCJ, 30 July 2013, unrep)
• Date of Decision: 2013-07-30 00:00:00
• Before: Curtis DCJ
• File Number(s): 2012/147891

Judgment

1 McCOLL JA: The applicant, Grant Lorrimar, seeks leave to appeal from a decision of Curtis DCJ finding the respondent, Serco Sodexo Defence Services Pty Limited ("Serco"), not liable for burn injuries the applicant sustained while cleaning a kitchen allegedly pursuant to instructions Serco had devised: Grant Tyson Lorrimar v Serco Sodexo Defence Services Pty Limited (District Court of New South Wales, Curtis DCJ, 30 July 2013, unrep). The leave application proceeded as a concurrent hearing so that if leave to appeal is granted, the argument on the application will be taken to be the argument on the appeal.

2 The applicant's essential complaint is that he was denied procedural fairness and, accordingly, a fair trial, because the primary judge decided the case on a basis which was not put to him and which the respondent did not advance.

3 For the reasons that follow, I am of the view that leave to appeal should be granted and will refer to the applicant as the appellant for the remainder of these reasons. I am also of the view that the appeal should be allowed with costs and a new trial ordered.

Statement of the case

4 The appellant, a member of the Royal Australian Air Force ("RAAF"), was employed as a cook by the Department of Defence at the RAAF Base at Williamtown. At the relevant time, he was working in the Sergeants' mess (the "mess"). The Department of Defence had contracted with Serco to provide services in the kitchens at the Williamtown Base which included laying down the work instructions to be followed by those cleaning the kitchens. The appellant's case at trial was that he was injured while seeking to undertake the cleaning task in accordance with Serco's instructions.

5 On 10 May 2009 an equipment failure caused loss of gas supply to the mess in which the appellant worked. By 11 May 2009, the kitchen in the mess had a functioning electric grill plate, but no functioning gas stove or hot water supply. The instructions for cleaning the stainless steel benches in the kitchen required that they be rinsed with hot water. By 14 May, gas had been restored to the mess enabling the gas stove to function, but there was still no hot water supply. Absent a functioning hot water supply, after the breakfast service on 14 May 2009 finished, the appellant heated water on the stove then poured it onto a stainless steel bench to rinse it. Some of the water he poured onto the bench for that purpose ran off the bench and into his boot causing a severe burn.

6 The appellant commenced proceedings against Serco alleging that he was required to work at the Base under its care, control and management. He alleged Serco owed him a duty to take reasonable care by providing a safe place to work, proper and safe equipment, a safe system of work and proper supervision and that it had breached its duty of care in all respects. Numerous particulars of negligence were pleaded of which the most germane were exposing the appellant to dangerously hot water, failing to train the appellant in proper and safe methods of cleaning and sanitising stainless steel preparation benches, requiring the appellant to carry out dangerous work duties and failing to supply the appellant with water at a safe temperature.

7 As put at trial, the appellant's case was that Serco breached its duty of care to him because it exposed him to a foreseeable, and not insignificant, risk of harm (burning), which could have been avoided either by not using the mess until hot water was available from a hot water tap (in which circumstances its temperature would have been controlled at approximately 70 degrees centigrade ("controlled water")) or by altering the work instructions for cleaning the kitchen so that he was not required to heat water on the stove top in circumstances where he could not gauge its temperature ("uncontrolled water"). He contended that the system of work Serco had devised for cleaning the stainless steel benches (pouring hot water over them such that it had to run onto the floor in the proximity of workers' feet) was inherently dangerous. He further contended that when controlled water was not available, Serco was obliged to provide a system of work which guarded against the risk that an employee might inadvertently overheat the water and injure him or herself.

8 In its defence, Serco denied the allegations of care, control and management, of duty and breach. It also put causation in issue. In addition, it pleaded that if it was found liable to the appellant, his injury was solely his fault for ignoring an obvious risk (using boiling water to clean a stainless steel work bench) within the meaning of s 5F and s 5G of the Civil Liability Act 2002 (NSW) (the "CLA"). It relied on the same facts to support a plea that the appellant was guilty of contributory negligence within the meaning of s 5R and s 5S of the CLA.

9 Serco's case at trial was that its duty to take reasonable care was framed in terms that it was entitled to expect persons such as the appellant to take reasonable care for their own safety. As to breach, Serco submitted that heating water on a stove top was a simple task, albeit attendant with an obvious risk, but that it could not foresee that an experienced cook would not be capable of undertaking that task safely, in particular by determining the temperature of the water before pouring it onto the stainless steel bench. In such circumstances the appellant had not established that there were any precautions a reasonable person in its position ought to have taken against the risk of harm to which the appellant succumbed.

The critical evidence

10 It is convenient to set out first the critical evidence concerning the accident, then the primary judge's reasons.

11 The appellant was taken in chief to what happened after the breakfast service finished, following which he said "you have to do a snappy thorough clean out to start preparing for the following meal". The following exchange then took place:

"Q. Right. Now, was the cleaning up process as snappy as it usually was during that period there was no hot water available?

A. No.

Q. And can you tell me how much longer did it take to do the cleaning up?

A. Around forty minutes maybe.

...

Q. How did you get the water hot?

A. I had to heat it up in a pot.

Q. How big a pot?

A. It was a 20 litre pot but I only heated up enough water that I would need to do the area that I cleaned.

Q. And what was the area that you were cleaning?

A. The area that I needed to clean was the electric grill plate and the stainless steel bench and also just had to wipe down all the servery and bain marie.

...

Q. The electric grill plate is where you're actually able to heat the hot water, correct?

A. Well, at that time we'd had gas back but no hot water.

Q. So you had the gas back on the burners but not for - there was no hot water yet?

A. No. There was an issue with the hot water system still.

Q. Yeah. So you had this pot with 10 litres of water on the burner?

HIS HONOUR: He hasn't said how many litres. The pot was the 20 litre pot.

Q. What volume did you put into it?

A. Approximately I'd say 5, 6 litres maybe. Just because I wanted to -

Q. Just the volume is all we need at this stage.

A. - - be cautious.

BEALE:

Q. And what did you do with it?

A. I needed it to clean and sanitise an area where there'd been food preparation.

Q. And would you tell the court, please, how you handled the pot to get it onto where you wanted it?

A. Once I thought the water was hot enough, like, there was kind of steam coming off it and it had two big handles on the side, I carried it around and then slowly tipped it over the areas that I needed to release saturated fat and clean an area, and then as I was tipping it on the bench I had my foot in a spot where the water ran off the bench into my - into my boot.

...

HIS HONOUR:

Q. Just so I can get the sequence, you had to clean the preparation bench and the serving area and the bain marie?

A. The electric grill plate, the stainless steel bench and the bain marie.

Q. So that they were different areas?

A. They were all basically - it was like the electric grill plate started here. It was mounted on the stainless steel bench. Then the stainless steel bench followed and then it was the bain marie that followed there. So when the people come through for their meals they could just say to us, 'Yeah, a couple of fried eggs, some bacon,' and we'd be at the grill plate over the servery talking to them. We'd do it up for them.

Q. So when you cleaned which one was the, on this particular day, the first surface upon which you poured the hot water?

A. I just sprinkled some of the electric grill plate because I'd turned that off and also the stainless steel bench, just around that area. It was as soon as I tipped the hot water onto the stainless steel bench that's when it drizzled down into my boot. So I didn't even - I was only into the job for a few seconds.

Q. You'd finished the electrical plate?

A. No.

Q. But had you poured the hot water on the electrical plate?

A. Maybe a little bit. No, no, on the bench. It went on the bench. It went on the bench.

BEALE: Has your Honour finished?

HIS HONOUR: Yes

BEALE:

Q. And the water then poured down onto your foot, did it?

A. Correct."

12 In cross-examination Mr Polin, who appeared for Serco at trial and on appeal, asked the appellant about the cleaning process before the problems with the gas in the kitchen. The appellant explained that he and his co-workers "used to fill [a plastic bucket] with hot water out of the tap and ... put ... a bit of soap on the bench ... a green solution and, like, sprinkle a bit of hot water down there and then scrub it and then rinse it off with hot water and then squeegee it". During this stage of the cross-examination, the primary judge asked some questions about the usual system and then asked:

"HIS HONOUR:

Q. So on this occasion you put some green soap on, is that right

A. As far as I can remember.

Q. And then you put a small amount of water on that?

A. Yeah.

Q. And then you scoured. Is that what happened?

A. Yes, I think so, yeah if I can remember correctly.

Q. And then after you've scoured then you poured some more water on it and that's when it went onto your foot?

A. That's right. That was at the rinsing process.

Q. So you'd already been through the wetting and the scouring process?

A. Yes but I didn't use the hot water to scour it with because otherwise I would've - I'd burnt my hands."

13 After his Honour's questions, Mr Polin returned to asking about the cleaning process prior to the issues with the gas system. He turned, in due course, to the temperature to which the appellant had heated the water on 14 May. The appellant said he "didn't boil this water, but "thought [he] used it ... at the correct temperature ... [b]efore it got to boiling point", and, following the work instructions, sought to get "hot water ... that is unbearable to touch".

14 Later the following exchange took place:

"POLIN:

Q. Yeah. So the water -

A. But the water out of the tap that was controlled, the hot water out of the tap, by the time you put it in the bucket it loses temperature. Then you go over - because if you get hot water out of a tap you put it into a bucket, the bucket is cool so it cools the water down. Then you go over, tip it on the bench. It's still hot enough to get rid of the saturated fat but then it hits the bench, loses its temperature again and then it goes into your boot, it's not going to cause a scald or a burn.

HIS HONOUR:

Q. But isn't the purpose of the green detergent and scourer to dissolve the fat?

A. Yeah, it dissolves the fat but you need - but by work instructions the hot water is also to get rid of bacteria.

...

HIS HONOUR:

Q. In your course of instructions when you were learning to be a cook did you learn anything about using boiling water to sterilise?

A. Sterilise? Boiling water sterilises.

Q. Did you learn such things?

A. Yeah. Boiling water sterilises.

Q. And was it never the case in all of your years that you used boiling water to pour on benches to clean them?

A. Well, you don't - you don't handle - like, you wouldn't do that, boiling water. I haven't been in the situation like that before with boiling water, have to use -

Q. You've never poured boiling water on benches before?

A. Boiling water on benches?

Q. Yeah?

A. Not boiling water on benches.

POLIN:

Q. So the water you used on this day wasn't boiling but it was, I think you described it as, hot enough to cause damage?

A. Well, I only found that out after the accident."

15 In further examination in chief Mr Beale, who appeared for the appellant at trial and on appeal, asked the appellant:

"Q. Mr Lorrimar, you said that you don't recall the water being boiling. How close to boiling were you trying to get the water to gauge it so it would do the job you wanted it to do?

A. I needed to get it hot to be able to sanitise the area, so I needed to get it close to boiling."

Primary judgment

16 The primary judge found (at [1]) that the appellant "suffered a severe burn to his left ankle" on 14 May 2009 "when boiling water, which he poured onto a stainless steel bench for the purpose of cleaning, ran off the bench, into his boot".

17 After referring to Serco's contractual relationship with the Department of Defence to provide meals to service personnel at the Williamtown Base, his Honour appeared to find that it controlled the circumstances of the appellant's workplace insofar as it published work instructions to be observed by him in the cleaning process, and had the authority to close the mess in circumstances where those instructions could not be complied with safely: primary judgment (at [3]).

18 The primary judge then turned to the issue of duty of care, noting that:

"[4] The nature and scope of the defendant's duty to the plaintiff is to be derived from the extent to which it was able to control Mr Lorrimar's system of work pursuant to the contract between it and the Department of Defence."

19 His Honour set out extracts from Serco's contract with the Department of Defence. It is unnecessary to recount those details, save to note that, pursuant to clause 40.3.4, Serco "assume[d] responsibility for the cleaning of all messing facilities". His Honour found that neither of Serco's employees who worked at the Base, Mr Lee, Serco's Hospitality Manager for the Williamtown Base with overall responsibility for the Officers', Sergeants' and Airmen's Mess nor Ms Wiseman, the manager of the Sergeant's mess, were authorised to give orders to, or direct, the cooks, who were all defence personnel: primary judgment (at [9], [10] and [11]). Rather:

"[11]...Their practice, if they wished to address conduct relating to hygiene in the kitchen, was to speak with Corporal Gow, Sergeant Hogno, or Sergeant Bourne. Those men would then direct the cooks on the matter."

Corporal Gow, Sergeant Hogno, and Sergeant Bourne were also servicemen, deployed at Williamtown Base with various roles in relation to the messes located there.

20 Serco had no control over the training or skill level of defence personnel assigned to it: primary judgment (at [12]). However, pursuant to its contractual obligations, Serco "prepared and published a register containing sheets of meticulous work instructions to be followed by kitchen staff at Williamtown" including details regarding "the procedures to be followed for the cleaning and sanitising of every conceivable item of kitchen equipment": primary judgment (at [13] and [16]).

21 His Honour set out the circumstances of the accident as follows. On Sunday, 10 May 2009, an equipment failure caused loss of gas supply to the Sergeants' mess. The mess was closed that day and the sergeants were directed to eat in the Airmen's mess: primary judgment (at [17]).

22 The work instruction relating to Emergency Loss of Mess Services directed that in the event of loss of power it was the responsibility of the Hospitality Manager (a Serco employee), if he perceived that the kitchen could not operate, to inform the "DSG" (which the primary judge assumed to be the Duty Sergeant) of the situation and of any changes to the catering arrangements: primary judgment (at [18]).

23 On Monday, 11 May 2009, Mr Lee inspected the kitchen in the company of Senior Flight Sergeant Bourne. It had a functioning electric grill plate but no functioning gas stove or hot water supply. Nevertheless they agreed that the kitchen should reopen: primary judgment (at [19]).

24 Mr Lee did not give any instructions to vary the work instructions concerning cleaning the mess: primary judgment (at [20]). Work Instruction 56, "Cleaning and Sanitising of Stainless Steel Tables Shelves and Sinks" ("WI 56"), relevantly provided:

"Stainless Steel Tables Shelves

...

Procedure:

Wipe up spilled or splashing food immediately during regular production with a clean cloth.

At the end of each shift, wash tables with a detergent solution.

Rinse with hot water

Squeegee off bench to get rid of excess water.

Allow to Air dry."

25 Meals were served on Monday, Tuesday and Wednesday without incident. The kitchen staff heated water for cleaning in cooking pots placed on the electric grill plate: primary judgment (at [22]). By the morning of 14 May 2009 gas had been restored to the stove top, but not to the hot water system: primary judgment (at [23]).

26 According to the appellant, when the hot water system was operating normally he complied with the cleaning instructions:

"[24]...by filling a plastic bucket with hot water out of the tap, sprinkling some Viva liquid on the bench to be cleaned, sprinkling a bit of hot water on the liquid, scrubbing the bench, and then rinsing with hot water..."

27 The appellant said in chief that on the morning of his accident he heated 5 - 6 litres of water on the stove top in a 20 litre pot, which had two handles on the side: primary judgment (at [25]). According to the appellant's evidence in chief:

"[25] ...Once I thought the water was hot enough, like, there was kind of steam coming off it and it had two big handles on the side, I carried it around and then slowly tipped it over the areas that I needed to release saturated fat and clean an area, and then as I was tipping it on the bench I had my foot in a spot where the water ran off the bench into my - into my boot".

28 The primary judge (at [26]) set out the following cross-examination:

"Q. So on this occasion you put some green soap on, is that right?

A. As far as I can remember.

Q. And then you put a small amount of water on that?

A. Yeah.

Q. And then you scoured. Is that what happened?

A. Yes, I think so, yeah, if I can remember correctly.

Q. And then after you've scoured then you poured some more water on it and that's when it went onto your foot?

A. That's right. That was at the rinsing process.

Q. So you'd already been through the wetting and the scouring process?

A. Yes but I didn't use the hot water to scour it with because otherwise I would've - I'd burnt my hands."

29 The primary judge next observed (at [27]) that the appellant had not mentioned in chief "washing, scrubbing or scouring the bench before pouring on the hot water". To the contrary, his Honour observed (at [28]), the appellant had said "he only heated up enough water ... to do the area that [he] cleaned, that is the ... water he tipped over the areas that [he] needed to release saturated fat." His Honour then rejected the appellant's evidence about scouring the bench with water and detergent before pouring on the hot water as unconvincing: primary judgment (at [29]). In his Honour's view, "if [the appellant] had already washed or scrubbed off the bench with detergent it was no longer necessary to pour on boiling water to release the saturated fat or to clean and sanitise the area": at [29] (Emphasis in original).

30 Accordingly, his Honour concluded (at [30]) that the appellant's "purpose in heating the water to boiling point and pouring it onto the bench was to clean and sanitise the area where there'd been food preparation" (Emphasis in original).

31 His Honour next recorded (at [31]) the appellant's evidence that he "needed to get [the water] hot to be able to sanitise the area, so I needed to get it close to boiling". He regarded that as consistent with statements the appellant made to medical practitioners, to the effect that he intended to, and did, boil the water: primary judgment (at [32]).

32 The primary judge concluded:

"[34] This use of boiling water was not in accordance with the defendant's instructions. Those instructions required that he wash tables with a detergent solution, and then rinse them with hot clean water." (Emphasis in original)

33 The primary judge then referred to evidence given by Leading Aircraft Woman ("LACW") Dixon, who worked with the appellant, to the effect that "on the day of the accident she observed the pot of water on the stove giving off fine spiralling bubbles, which meant it was really close to boiling point". She saw the appellant take the pot in both hands and pour the water onto the bench causing his injury": primary judgment (at [35]). His Honour also extracted (at [39]) LACW Dixon's evidence that the hot water she heated during the period the hot water service was out of operation was "close to" the temperature of that being used from the taps prior to the outage.

34 The primary judge then turned to breach of duty, in which respect he recorded the appellant's submissions that:

"[40]...the risk of injury was foreseeable, and [Serco] in discharge of its duty to him, should reasonably have avoided that risk by:

• Closing the kitchen until the hot water was restored, and directing the sergeants to dine in the Airmen's mess as had occurred on the Sunday; or
• Providing the plaintiff with a thermometer to ensure that the temperature of the water was not dangerously high, and amending the work instruction to ensure that he used the thermometer; or
• Directing the plaintiff to use only warm water to clean the bench tops; or
• Directing the plaintiff to clean the benches with detergent and cold water, and then apply an available sanitiser called 'Compact Quant.'"

35 The primary judge rejected these submissions.

36 In relation to the first, his Honour did not accept (at [41]) that it was not possible to comply safely with the work instruction for cleaning benches in the absence of the hot water system. He said:

"[42] The work instruction sheet prepared by the defendant did not envisage or require that boiling water should be poured on to the bench. The directions required the use of 'hot clean water'." (Emphasis in original)

37 He emphasised (at [43] - [44]) the numerous references to "hot water" in the work instructions and observed (at [45]) that it was obvious "the instructions envisaged contact between hands and hot water in the course of washing, scrubbing and scouring." He added (at [46]) that LACW Dixon had had no problem adapting to the absence of a hot water service.

38 Next, the primary judge observed (at [47]) that the work instructions required any deposits of fat to be dissolved by scrubbing with a detergent solution before rinsing with hot water. His Honour rejected what he said was the appellant's "assertion that the water was required to be sufficiently hot as to by itself dissolve any accumulation of fat". Accordingly, the primary judge concluded (at [48]) that "the work instructions for cleaning the bench top could have been safely observed by the [appellant] with the equipment available [and] [t]here was no necessity to close the kitchen".

39 The primary judge also rejected (at [49]) the appellant's evidence that time pressures contributed to his accident, (at [50]) that the accident happened because the appellant was using an unwieldy pot (rejecting, in doing so, the appellant's evidence that the suggested alternative of tipping the water into a bucket on the floor before pouring it on the bench created an unacceptable hazard to others in the kitchen) and (at [51] - [52]) his evidence that a thermometer was not available, given that the work instructions were replete with references to the necessary use of thermometers. Alternatively, in his Honour's view (at [55]), the appellant could have tested the water as it warmed with his hand as LACW Dixon had done.

40 His Honour then said:

"56. ... It is clear from the evidence that the use of a thermometer was irrelevant in circumstances where [the appellant] intended to boil the water, rather than heat it to that same temperature as was provided by the hot water service when it was working ..."

41 In relation to the submission that Serco should have directed the appellant to use only warm water to clean the bench tops, the primary judge concluded (at [57]) that it was reasonable for Serco to rely on the ability of a trained cook with around 19 years experience to implement safely the cleaning instructions using the equipment provided. He referred again (at [58]) to LACW Dixon's evidence in which she agreed that "when you're told to use hot water, you use a bit of common sense and use water that's a heat that you're able to deal with".

42 The primary judge referred (at [60]) to the fact that after the appellant's accident, Serco amended WI 56, relevantly to replace references to "hot" to "warm". His Honour did not regard that change as determinative, emphasising that the question of breach was to be judged prospectively. Prior to the accident, Serco had no reason to believe "an experienced cook would make such an error of judgment" and after the accident, "when [it] was on notice, it was prudent that it attempt to protect both inexperienced and also highly experienced personnel from the consequence of gross negligence on their own part": primary judgment (at [61]).

43 Finally, his Honour (at [63]) rejected as inapposite the appellant's submission that persons in Serco's position (which the appellant likened to that of an employer) should implement a system of work which took into consideration inadvertence in the workplace, in circumstances where his actions "were considered, deliberate and not in accordance with the system of work constituted by [Serco's] work instructions."

44 The primary judge concluded there must be a verdict for Serco as:

"[64] [Serco] required each person working in the kitchen to be familiar with the working instructions relating to cleaning of the benches, and [the appellant] was familiar with that work instruction. The safe implementation of that instruction was entirely within his area of responsibility."

45 His Honour declined (at [66]) to proceed to a hypothetical assessment of damages as "[a] fair-minded lay observer may reasonably apprehend that my assessment of damages may be coloured by my rejection of the plaintiff as a reliable witness in relation to the issue of liability".

46 Accordingly the primary judge entered a verdict for Serco on 30 July 2013.

Steps following judgment

47 On 21 August 2013 the appellant filed a notice of intention to appeal. On 29 October 2013 he filed a notice of appeal. An amended notice of appeal was filed on 17 June 2014, page 2 of which bore the endorsement that the appeal was brought as of right.

48 On 21 November 2013 Serco filed a notice of motion seeking an order that the appeal be dismissed as incompetent. Serco's solicitor, Mr Colin Davidson, filed an affidavit dated 18 November 2013 in support of the motion, contending that damages were a significant issue at trial. He contended, in substance, that the appellant needed leave to appeal as the appeal did not involve "a matter at issue amounting to or of the value of $100,000 or more": s 127(2)(c)(i), District Court Act 1973 (NSW). He said that the appellant took only three weeks off work after the accident and had received little treatment for his injury. He annexed Serco's schedule of damages (see District Court Standard Directions 1) at trial which allocated $3,249.90 to past economic loss and $2,000 to past out of pocket expenses.

49 On 6 December 2013, the appellant filed a summons seeking leave to appeal, according to an affidavit sworn by Mr Doyen dated 18 June 2014, in response to an order to do so made by the Registrar of the Court of Appeal. On the same day, however, the appellant filed an affidavit dated 5 December 2013 sworn by his solicitor, Mr Brendan Moran, purporting to contend, in essence, that if the appellant had succeeded on liability, he would have been awarded damages in excess of $100,000: s 101(2)(r) Supreme Court Act 1970 (NSW); Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 51.22(2)(b). The affidavit exhibited the appellant's medical evidence as at 26 June 2013 (which I infer was tendered at trial), referred the Court to aspects of that evidence and also drew the Court's attention to aspects of the appellant's damages claim at trial. There were three annexures to Mr Moran's affidavit, the primary judgment, 338 pages of the appellant's hospital records, medico-legal reports and the like and an amended statement of particulars relied upon at trial.

50 On 1 June 2014, Mr Davidson swore a further affidavit to which he exhibited two medical reports from a Dr Meares, a hand, plastic and reconstruction surgeon, and Dr Potter, a psychiatrist, respectively. He also exhibited his letter of instructions to Dr Potter which enclosed a substantial number of documents for Dr Potter's consideration as well as an extensive commentary upon those documents. These documents exceeded 60 pages in total and were also, I assume, tendered at trial.

Issues on Appeal

51 The amended notice of appeal sets out numerous grounds of appeal, but, as I have said, the critical issue is whether the appellant was denied procedural fairness and, hence, a fair trial. Underlying the critical issue are the appellant's complaints that the primary judge failed to identify the duty of care Serco owed him or the risk of harm to which he was exposed and failed to determine the issue of breach on the pleaded case. He also complains about the adequacy of the primary judge's reasons.

52 Serco filed a notice of contention arguing that, pursuant to s 5B(1) of the CLA, that the primary judge's verdict could also be supported on the basis that his Honour should have found that the risk of harm was not a risk of which it ought to have known and too, that the risk was one which could be characterised as "not insignificant". Serco also contended that his Honour ought to have found that any breach of duty on its part was not causative of the appellant's injuries.

Appellant's submissions

Leave to appeal

53 Mr Beale submitted, relying on Mr Moran's affidavit, that leave to appeal was not required as the appellant would have been entitled to damages greater than $100,000 had he been successful on liability.

54 Alternatively, Mr Beale submitted that, if the Court was of the view that leave to appeal was required, leave should be granted to prevent the injustice he contended arose from the fact that the primary judge determined the matter on a case the respondent did not advance and which was not put to the appellant during the trial.

Liability

55 Mr Beale first submitted that the primary judge denied the appellant procedural fairness and, accordingly, a fair trial, because he decided the case on the basis that the appellant had not complied with the requirement in WI 56 that he first scour the accumulated grease off the surface to be cleaned, then rinse it with hot water but, instead, had sought to shortcut that two step procedure by heating the water to boiling point in order both to clean and rinse off the grease in one step (the "boiling water case").

56 Accordingly, he argued, his Honour appeared to have concluded that Serco had not breached its duty of care because the appellant had not complied with the system of work it had devised. Mr Beale contended that the boiling water case had not been put to the appellant and represented a misunderstanding of his evidence. He contended this conclusion had a material effect on the appellant's case on liability because it was heavily relied upon by the primary judge in rejecting the appellant's credit and thus his version of events. Further, it was fundamentally unfair to find against the appellant on the basis of the boiling water case when he had not been given an opportunity to deny it.

57 Secondly, Mr Beale submitted that the primary judge's formulation of the boiling water case had had a material effect on his Honour's rejection of the appellant's case. Whereas the appellant's case had been that he was complying with Serco's work instructions which were inadequate in the circumstances confronting him on 14 May 2009, the primary judge had not considered that case but, rather, had concluded (at [64]), in substance, that the appellant had taken it upon himself to devise his own system of work (boiling water), rather than comply with Serco's work instruction.

58 Thirdly, Mr Beale argued that the primary judge did not consider the appellant's case, because his Honour devised the boiling water case. He submitted that the appellant had an arguable case that Serco controlled the mess, including deciding when and how it was re-opened after its closure due to the power failure. Further, Serco regulated in minute detail when and how the appellant's duties were to be performed, including devising a voluminous manual with carefully considered requirements for performance of tasks in the mess, including WI 56.

59 Accordingly, Mr Beale contended that Serco owed the appellant a duty of care to exercise reasonable care for the safety of people such as him working in the mess. The scope of that duty included, at least, devising a system to enable water to be heated safely when controlled water was unavailable. That system should have included arrangements enabling the monitoring of the temperature of the water the appellant was required to heat. In the absence of such a system, Mr Beale submitted Serco breached its duty of care by exposing the appellant to a foreseeable, and not insignificant, risk of serious injury, namely of being severely burned as a result of not being able to access controlled water. He submitted that it was foreseeable that with altered work conditions and time pressures, the attention of people in the appellant's position would most likely be on several things rather than being completely focused on watching the water heating in the pot so as to be able to remove it when it was estimated that it was just the right temperature for removing greasy, soapy water.

60 Fourthly, Mr Beale contended, referring to s 5B of the CLA, there were precautions a reasonable person in the respondent's position should have taken against the risk of harm to which the appellant succumbed. These included revising the Work Instructions to require staff to use warm water in the cleaning process, a change which was made almost immediately after the appellant's injury.

Serco's Submissions

Leave to appeal

61 Mr Polin submitted that the appellant needed leave to appeal as, on any view of his case, any assessment of damages would not exceed $100,000. Mr Polin submitted that if the appellant had succeeded on liability, the primary judge would not have awarded any amount other than the out of pocket expenses set out in Serco's Schedule of Damages. He pointed out that the appellant's injury was a simple burn and that he had never sought any treatment beyond that given immediately after the accident, that there was no claim for past economic loss, that the appellant was still employed by the Department of Defence at trial and there was no suggestion that employment would not continue. He contended that the appellant's case on non-economic loss would not satisfy the s 16, CLA threshold.

62 Mr Polin submitted that leave to appeal should not be granted as the case involved no question of principle, nor issue of general public importance. He contended that it could not be said that the primary judge's conclusion about liability was wrong, referring to Jaycar Pty Limited v Lombardo [2011] NSWCA 284. He also submitted, relying on his submissions on liability, that no miscarriage of justice warranting a grant of leave to appeal had occurred.

Liability

63 Mr Polin first submitted that the primary judge's finding that the appellant heated the water to boiling point to clean and sanitise the stainless steel bench was consistent with his evidence in chief. He pointed out that neither in that evidence, nor when asked further questions in chief following cross-examination, had the appellant mentioned he had first scoured the bench before tipping hot water onto it. Further, he contended, it was open to the primary judge not to accept the appellant's evidence in cross-examination that he used detergent first. In any event, he contended, the boiling water case finding was immaterial to the ultimate disposition of the appellant's claim.

64 Mr Polin accepted that the primary judge found that Serco owed the appellant a duty to exercise reasonable skill and care, the scope of which was derived from the extent to which it was able to control the appellant's system of work pursuant to its contract with the Department of Defence. He also accepted in this respect that by issuing WI 56, Serco controlled the manner in which the appellant was required to clean the stainless steel benches.

65 Mr Polin next accepted that the primary judge did not make a specific finding as to a number of matters. First, his Honour did not identify the risk of harm in respect of which it was alleged Serco was obliged to take precautions. In this respect, Mr Polin conceded that the risk of harm was that the appellant, in cleaning a bench, would burn himself using hot water heated on a gas stove, rather than coming from a tap. However, he submitted that it was open to the primary judge to find that Serco neither knew, nor ought to have known, of that risk of harm. Accordingly, Serco had not breached any duty of care it owed the appellant. Secondly, Mr Polin accepted that it was unclear exactly what findings the primary judge made as to foreseeability. Thirdly, Mr Polin accepted that the primary judge made no finding as to whether the risk of harm which Mr Polin identified was "not insignificant": cf s 5B(1)(b), CLA. He contended that the primary judge should, however, have found that the appellant had not established that the relevant risk of harm was not insignificant.

66 As to breach, Mr Polin submitted that at the time of his accident the appellant was an experienced cook who was undertaking a simple, undemanding task that required no particular expertise - cleaning a stainless steel bench, a task that had always been part of his duties. He argued the appellant failed to establish that there were any precautions, in terms of s 5B of the CLA, that a reasonable person in Serco's position should have taken against the risk of harm which eventuated.

67 Mr Polin submitted that from 11 - 13 May 2009 the appellant had cleaned the benches by boiling a pot of water on an electric grill apparently without difficulty, that in his 15 years as a cook he had developed some experience in gauging the temperature of water and whether it was boiling, and that LACW Dixon, who worked with the appellant doing a similar job, had had no problem gauging the temperature of water using her hand. He submitted that, in that light, the suggestion that the appellant could not control the heat of water he heated on a stove was fanciful.

68 Rather, Mr Polin contended the task the appellant was undertaking, cleaning with hot water, was a commonplace activity, in respect of which the appellant had not established a reasonable person in Serco's position would have taken any precautions to guard against the risk of harm to which the appellant succumbed.

69 Finally, Mr Polin submitted that, although the primary judge made no specific findings in relation to causation, the appellant had not established that any breach of duty on Serco's part caused his injuries.

Competence of the appeal

70 An appeal to this Court from a final judgment or order only lies by leave if the appeal does not involve "a matter at issue amounting to or of the value of $100,000 or more", or involve "(directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more": s 127(2)(c), District Court Act; s 101(2)(r) of the Supreme Court Act. There is no controversy that the appeal is one from a final judgment, a verdict having been entered in Serco's favour.

71 The object s 127(2) of the District Court Act and the like provisions in s 101(2)(r) of the Supreme Court Act seek to achieve, "is to discourage small appeals where the amount in issue does not justify the cost delay and inconvenience of the appeal process and to ensure that the Court is not burdened by appeals which do not warrant the Court's time": Ozpinar v Assaily [2001] NSWCA 23 (at [13]) per Powell JA (Sheller JA and Rolfe AJA agreeing). To "satisfy the requirement of s127(2)(c)(i) ... it is necessary for an appellant to establish that he or she has a realistic prospect of increasing his wealth by $100,000 or more if the appeal were to succeed": Schepis v Commonwealth [2012] NSWCA 398 (at [12]) per Campbell JA, referring to Pawlowska v Zajglic [2011] NSWCA 118 (at [14], [16] - [21]) and Jensen v Ray [2011] NSWCA 247 (at [9] - [12]).

72 As s 127(2)(c) constitutes a statutory restriction on the right of appeal, imposed by reference to a specified amount or value (UCPR 51.22(1)), it was necessary for the appellant, on filing the notice of appeal, also to file and serve an affidavit that identified the nature of the restriction and set out "the material facts on which the appellant ... relie[d] to show that the restriction does not apply": UCPR 51.22(2)(b); Maynes v Casey [2011] NSWCA 156 (at [7]) per Basten JA, Allsop P agreeing.

73 In Maynes v Casey (at [8]), Basten JA explained that "[a]n affidavit by a solicitor expressing an opinion as to the amount of damages likely to be awarded is neither necessary, nor sufficient ... [w]hat is required, in order to comply with the rule, is an affidavit setting out 'material facts' which may demonstrate the likely amount of the damages". These propositions are well-established, as the authorities to which his Honour referred demonstrate: see Ozpinar v Assaily (at [12] - [14] (Powell JA, Sheller JA and Rolfe AJA agreeing); Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38 at [47] (Rolfe AJA, Ipp AJA agreeing); Bracks v Smyth-Kirk [2009] NSWCA 401 (at [40]) (McColl JA, Allsop P and Young JA agreeing).

74 An affidavit which "amount[s] to no more than bald assertions which did not provide any evidentiary basis for the deponent's belief as to the sum which might be awarded" does not comply with the UCPR 51.22(2)(b) requirement (Bracks v Smyth-Kirk (at [40])). Nor, in my view, does one such as Mr Moran's, which exhibits what appears to be all the appellant's medical reports at trial (although that is not to say that in some circumstances such material may not be tendered - see Schepis v Commonwealth (at [23])), refers to various of those reports and draws the Court's attention to aspects of the claim at trial - making it entirely unclear whether or not the deponent relies on the balance of the medical evidence. Nor are matters assisted by a purportedly responsive affidavit such as Mr Davidson's which, again, annexes voluminous material without explaining its relevance.

75 Neither an affidavit purporting to establish that there is an appeal as of right, nor a challenge to the competence of the appeal, should be used as appears to be the instant case, as a vehicle for transposing what was clearly a substantial, regrettably unresolved, dispute at trial concerning damages to this Court.

76 Moreover, where there is a prospect of a new trial being ordered, as in this case, the Court should be reluctant to appear to make findings on damages issues which may influence any further consideration of that issue with the benefit of assessing the plaintiff and the medical evidence in that light.

77 The appellant's burden of demonstrating that he or she has an appeal as of right should primarily be discharged by demonstrating in the UCPR 51.22 affidavit the material facts demonstrating that the relevant statutory restriction does not apply. The critical arguments can be set out, if necessary by succinct reference to the medical evidence at trial. Equally the respondent should be able to respond succinctly, in like vein identifying the medical issues at trial.

78 Despite the bulk of the materials exhibited to Mr Moran's affidavit, I consider it appropriate to focus on the reports of Dr Jonathon Phillips, Mr Wenzel and Professor Ehrlich to which he referred in his affidavit and to consider the reports to which Mr Davidson referred to the extent they deal with the psychiatric issue Mr Moran highlighted.

79 Professor Ehrlich, described on his letterhead as a specialist in the area of "Orthopaedics, Rehabilitation", observed the appellant on 5 May 2010, to have "minor superficial scarring about the ankle region, but ... a normal range of ankle dorsiflexion and plantar flexion, and normal inversion and eversion movements of the foot". He opined that no treatment was required for the ankle, but that as the appellant appeared to be experiencing a reactive depression following his injury, he may benefit from anti-depressant therapy.

80 Dr Jonathon Phillips opined in his report dated 7 June 2011 that the appellant exhibited an "unusual and excessive reaction to his workplace injury". He diagnosed him as having developed a chronic and pervasive adjustment disorder with depressed mood and co-existing anxiety with a risk of becoming unemployed due to his condition "in the longer term". He thought the appellant would remain vulnerable to future stressors in life with a risk of recurrence of symptoms. He doubted his ability to remain in permanent and useful employment in the long term future, including doubting his capacity to find and continue with any alternative employment. He recommended a number of sessions of cognitive/behavioural psychotherapy with regular follow ups.

81 Dr Phillips' diagnosis of a chronic and pervasive adjustment disorder with depressed mood and co-existing anxiety was substantially also that made by a psychologist, Mr Wenzel, to whose report of 7 May 2010 Mr Moran referred.

82 Dr Meares, whose report of 27 September 2012 was annexed to Mr Davidson's second affidavit, expressed the opinion that the appellant had "hyperpigmentation following a burn injury ... to the anterior aspect of his left ankle", that his prognosis was good and that his injury had reached maximum medical improvement. He recounted that the appellant said his scar added to embarrassment he felt about having varicose veins on his feet, limiting the clothes he was prepared to wear so that people did not observe either condition.

83 Dr Potter's report, also annexed to Mr Davidson's second affidavit, was written in response to a lengthy letter from Mr Davidson as I have said. It is appropriate, in my view, only to refer to Dr Potter's report to the extent he expressed an opinion about the appellant's condition, rather than his comments on a number of documents also attached to Mr Davidson's report, the significance of which was not readily apparent. It appears from his report that Dr Potter had earlier diagnosed the appellant as suffering from a chronic adjustment disorder with mixed anxiety and depression and chronic pain disorder psychological factors, a diagnosis which accorded with Dr Phillips' and Mr Wenzel's opinions. However, having reviewed the material Mr Davidson had provided, he appeared to step back from that opinion to the extent that he said it was "based on the acceptance that the individual has clinically significant anxiety and/or depression reactive to the life stress to which they were exposed". In short, as I understand Dr Potter's report, he was expressing the opinion that for his earlier diagnoses to be valid, it was necessary to accept the appellant's account of his history.

84 Before the primary judge, Mr Beale put the appellant's case at trial as a psychiatric one, principally based on Dr Phillips' report. He submitted that the appellant's injuries qualified as 30% of a most extreme case for the purposes of claiming non-economic loss (s 16, CLA). However, he conceded it was "not a really big case". His submissions principally addressed economic loss and like matters. He accepted that so far as future economic loss was concerned, as the appellant was still employed by the Department of Defence with no suggestion that situation was likely to change, the case had to be put as one for a small buffer.

85 In this Court, Mr Beale repeated, on the basis of Dr Phillips' opinion, that the appellant had a substantial chance of being unemployed, such that if he were ever to leave the air force, he would experience lengthy periods out of work and, therefore, was entitled to a modest buffer for future economic loss.

86 At trial, Mr Polin submitted that the appellant had suffered no more than a burn and that he did not have any psychological problem as a result of the accident. In short, he contended the appellant's case was a "very, very small case on non-economic loss". As is apparent (see [ REF _Ref401217084 \r \h \* MERGEFORMAT 61] above), Mr Polin repeated those submissions in this Court.

87 In my view, even if one accepts that the appellant may suffer the psychiatric condition to which Dr Phillips and Mr Wenzel referred and, further, that that condition was caused by the accident, it is not readily apparent that the appellant would be entitled to damages greater than $100,000, particularly in light of the apparent security of his employment. However it is not possible, on the state of the medical evidence, to express a final opinion about this, nor, for the reasons I have given, in the light of the prospect of a new trial, is it appropriate to do so. Much may turn, in terms of a determination of the appellant's psychiatric condition and its future sequelae, on the trial judge's assessment of him.

88 Accordingly, in my view, the appellant has failed to demonstrate that he has a realistic prospect of increasing his wealth by $100,000 or more if the appeal were to succeed. Accordingly he requires leave to appeal. I would grant that leave because, for the reasons I express below, I am of the view that the appellant has suffered an "injustice which is reasonably clear in the sense of going beyond what is reasonably arguable" in the manner in which the primary judge determined the case: see Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 (at [75]) per Ward JA (Emmett and Gleeson JJA agreeing).

Consideration

89 As I have said, the appellant was injured at the RAAF Base at Williamtown. The appellant's counsel submitted at trial that notwithstanding that the Williamtown Base was, accordingly, a Commonwealth place, the CLA applied by virtue of s 4(1) of the Commonwealth Places (Application of Laws) Act 1970 (Cth). The respondent did not demur. The issue was not raised on appeal and, in any event, on the assumption the Williamtown Base is a Commonwealth place (if it is not, the question is academic), counsel's submission at trial appears to me to be correct. The effect of the application of s 4(1) is "to enact a Commonwealth law in the same terms as each State law which falls within its terms": R v Porter [2001] NSWCCA 441; (2001) 53 NSWLR 354 (at [41]) per Spigelman CJ (Studdert J and Ireland AJ agreeing).

90 There is no doubt the Commonwealth owed the appellant a duty of care, albeit that he was a member of the RAAF, he having been injured while on duty in peace time: Groves v Commonwealth [1982] HCA 21; (1982) 150 CLR 113. That did not exclude the fact that Serco, too, owed the appellant a duty of care: Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16; see also Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 (at [20]) approving Brennan J's reasons in Stevens (at 47 - 48).

91 The appellant's case at trial and on appeal was that Serco controlled the circumstances in which Department of Defence employees conducted the cleaning operations in the kitchen of the Williamtown base. Serco did not seriously contest that proposition insofar as issuing instructions was concerned, and the primary judge appears to have accepted it. Thus his Honour set out the clause of Serco's contract which provided that it assumed "responsibility for the cleaning of all messing facilities" and the "meticulous work instructions" it devised stipulating procedures to be followed for cleaning and sanitising kitchen equipment, including the area the appellant was attempting to clean when he was injured.

92 However, having apparently concluded that Serco owed the appellant a duty of care, the primary judge did not determine its scope. That step was important because, "duties of care are not owed in the abstract [but] ... are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question": Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [43]) per Gummow J.

93 Serco essentially argued that its duty of care was confined to the preparation of the work instructions. Assuming for present purposes that that is correct (a sufficient limitation as further argument on this issue may take place at any new trial), it would have been open to his Honour, in my view, to find that Serco owed a duty to exercise reasonable care to the class of persons (of which the appellant was a member) obliged to clean parts of the mess in compliance with Serco's work instructions, to issue work instructions which established a safe system of work. That duty would extend to devising a safe alternative system when the method prescribed by WI 56 could not be followed.

94 Once the duty of care and its scope was identified, it was necessary for the primary judge to consider the questions of breach and causation the case posed by having regard to s 5B, s 5C and s 5D of the CLA (and, should they arise, the provisions Serco pleaded in its defence) as, absent such reference, "there is serious risk that [those] inquiries ... will miscarry: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 (at [11], [15], [27], [41]) ("Adeels Palace"). As Serco conceded, the primary judge made no clear findings on the issues posed by s 5B of the CLA and did not get to the issue of causation at all.

95 Thus, although the primary judge addressed (at [40] ff) the appellant's submissions concerning breach of duty, he did not, with respect, engage with the first issue posed by that issue, namely whether there was, in the proven circumstances, a risk of harm: s 5B(1). It was only through the correct identification of the risk of harm that his Honour could determine what a reasonable response to that risk would be: Roads and Traffic Authority of NSW v Dederer (at [18], [59]) per Gummow J; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 (at [192]) per Gummow and Hayne JJ. Absence of consideration at trial of the matters prescribed by s 5B of the CLA "may [be] reason enough to conclude that the question of breach of duty was not determined properly": Adeels Palace (at [39]).

96 It is possible to read the primary judge's reasons as amounting to a conclusion that the appellant was injured because he deliberately devised his own system of cleaning the bench which entailed boiling the water to a temperature sufficient both to release the saturated fat and to sanitise the area, rather than first scouring, then rinsing the bench. However, this was not the case Serco advanced at trial nor, with respect, did Serco or his Honour put to the appellant questions warranting that conclusion. However it is clear that that conclusion was the basis upon which he decided the case adversely to the appellant.

97 There are several difficulties with the primary judge's conclusions. The first is that because his Honour failed to identify the risk of harm at the outset of his factual inquiry, in my view he failed to appreciate, or engage with, the appellant's case on the risk of harm. That was that, absent a source of controlled hot water, heating water on a stove might lead to it being over-heated to the extent that it could burn a person in the appellant's position required to pour it over the benches - for whatever part of the cleaning task the appellant was seeking to accomplish.

98 Secondly, in my view, his Honour's conclusion that the appellant deliberately boiled the water was not open on the evidence. I have set out the critical passages above. It should be noted that the appellant denied pouring boiling water onto the benches, denied "boiling this water", but said he 'needed to get it close to boiling" (see [ REF _Ref401650183 \r \h 13] - [ REF _Ref401647888 \r \h 15] above). The primary judge referred to that evidence but did not, it appears, attach any weight to it. There was no evidence at trial that the appellant did intend to heat the water to boiling point. Rather, the process by which the primary judge appears to have arrived at the boiling water case was as follows.

99 First, his Honour rejected the appellant's evidence in cross examination that he thought he had scoured the bench before pouring on the hot water during the rinsing process, then been injured, because his Honour concluded he had deliberately refrained from giving that evidence in chief: see primary judgment (at [27], [29]). Secondly, his Honour concluded (at [29]) that the appellant's evidence as to first scouring, then rinsing, was unconvincing because "[i]f [the appellant] had already washed or scrubbed off the bench with detergent it was no longer necessary to pour on boiling water to release the saturated fat or to clean and sanitise the area". Thirdly, his Honour (at [32]) interpreted the appellant's evidence that he "needed to get [the water] close to boiling" as consistent with statements the appellant had made to medical practitioners.

100 As to the first reason, both the evidence in chief, and the further evidence in chief given by leave following cross examination, demonstrate that the appellant was not asked a question which might reasonably be expected to have elicited an answer about what other parts of the cleaning process he had undertaken before the critical part when he was injured. It was only the questions in cross-examination the primary judge asked which elicited the answers he ultimately disbelieved.

101 The appellant's obligation was "to answer questions put by counsel responsively ... to give a full answer, but no more"; a party-witness should not be criticised by a judge for "deliberately withholding the truth in a fashion crucial to a dismissal of that party's claim unless ... reasons [are] given for concluding that the truth has been deliberately withheld ... [and] .... the party-witness [was] given an opportunity to deal with the criticism": Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 (at [62], [67]) ("Kuhl") per Heydon, Crennan and Bell JJ. As will be apparent, with respect, his Honour's finding adverse to the appellant, insofar as his first reason was concerned, was not made in compliance with Kuhl.

102 As to the second reason, there is an element of circularity in his Honour's conclusion. Even if the appellant had already scoured the surface with detergent, the solution that left on the bench had to be rinsed off with hot water to achieve a clean surface and, possibly, to sanitise it - the source of the latter requirement was not identified and, it might be inferred, was an explanation given to the cooks to explain the hot water requirement in WI 56. The appellant's evidence was that he poured the heated water onto the bench to accomplish that task. The primary judge however inferred that because the appellant had not first scoured the bench, he must have deliberately boiled the water to accomplish both tasks at once.

103 This conclusion not only failed to take into account the appellant's evidence that he had not boiled the water. It also underpinned the reason his Honour rejected (at [63]) the appellant's case of inadvertence. His Honour ought to have taken into consideration the possibility of inadvertence in determining whether there was a real risk of injury arising from the manner in which the appellant was required to undertake the cleaning task on the day he was injured: see Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140 (at [62]) per Meagher JA (Beazley P and Macfarlan JA agreeing).

104 As Serco's counsel did not cross examine the appellant to the effect that he had not followed the cleaning system set out in WI 56, but, rather, had devised his own short cut by boiling the water, it was incumbent on the primary judge to put that proposition to the appellant "if his conclusion that the [appellant] had not been frank and complete was to play a role in his decision adverse to [him]": Kuhl (at [75]). As the majority explained in Kuhl (at [69]ff), the obligation to do so stems from the rule in Brown v Dunn (1893) 6 R 67 in which Lord Herschell LC emphasised (at 70 - 71) that the proposition that if a witness' evidence is to be impeached, the witness must be given "an opportunity of making any explanation which is open to him ... is essential to fair play and fair dealing with witnesses".

105 Finally, to the extent the primary judge referred to medical histories, it should be noted that the difficulty in relying upon such histories has been stated frequently: see Gulic v O'Neill [2011] NSWCA 361 (at [24]) per Whealy JA (Campbell JA and James J agreeing). His Honour referred (at [32] - [33]) to statements apparently attributed to the appellant in reports from Mr Wenzel, Dr Phillips, Professor Ehrlich. Dr Potter and Dr Meares. As far as I can see, Mr Polin asked the appellant only about the history he gave Mr Wenzel about a year after the incident which was apparently recorded as stating he "believed that the flight sergeant directed [him] and others to work in a faulty kitchen ... [and] use the electric grill to boil water that had to be used for washing up plates as well as cleaning the kitchen area in general". The appellant agreed that "if it's written in the document that must have been what I said". It was not put to him that that was what he did on the day in question, or that his evidence that he did not boil the water on this occasion was inconsistent with that, or any other history: cf Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 (at 590) (per Kirby P, Waddell and Samuels AJJA agreeing). In my view, it was not open to his Honour to reject the appellant's evidence at trial in reliance on histories the appellant was not given an opportunity to deal with.

106 Parties to litigation are entitled to a fair trial at which they can put their case properly before the judge: Jones v National Coal Board [1957] 2 QB 55 at 67; [1957] 2 All ER 155 at 161, referred to with approval in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 ("Stead") (at 145). Where a party is denied a fair trial, a new trial may be ordered unless to do so would be a futility. Further, where a "denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference": Stead (at 145).

107 Accordingly, in my view, the primary judge determined the case in a manner not open on the evidence and with which the appellant had no opportunity to deal, such as to warrant the conclusion he was denied a fair trial. The significance of his Honour's conclusion is self-evident. The extent to which it depended upon him rejecting the appellant as a witness of truth is evident from his Honour's acknowledgement in declining to proceed to a hypothetical assessment of damages (in the event this Court disagreed with his conclusion on liability), that the view he had formed about the appellant's credit because of his rejection of the appellant's case was so adverse, that a reasonable apprehension of bias inference was available.

108 Both parties accepted that if the Court came to the view that the primary judge had denied the appellant procedural fairness in the sense for which he contended, a new trial should be ordered: see Kuhl (at [76] - [77]). In my view the primary judge did so act. However the question whether a new trial should be ordered turns on the significance of the denial of procedural fairness on the determination of the case.

109 On a s 75A appeal, such as this matter is, the Court has wide powers, including to make any order which the nature of the case requires: s 75A(10), Supreme Court Act 1970 (NSW). Insofar as the power to order a new trial is concerned, the Court is constrained by UCPR 51.53(1) not to make such an order on the grounds there specified or "on any other ground unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned". In order to determine that question, it is necessary to consider matters going beyond "the bare question of whether there ha[s] been any departure from applicable rules of evidence or procedure": Weiss v R [2005] HCA 81; (2005) 224 CLR 300 (at [18]). The Court must have regard to "the essential justice of the case" to determine "whether the error of the judge, if there was one, really bore upon the ultimate result": Freeman v G J Coles & Co Ltd [1967] 1 NSWR 297 (at 300) per Herron CJ (with whom Sugerman JA agreed); applied by Spigelman CJ (Beazley and Bryson JJA agreeing) in Tory v Megna [2007] NSWCA 13 at [41]; see also Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 (at 39).

110 It is also necessary, in applying UCPR 51.53, to take into consideration the overriding purpose referred to in s 56 of the Civil Procedure Act 2005 (NSW) "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Alchin v Daley [2009] NSWCA 418 (at [54]) per Sackville AJA (McColl and Young JJA agreeing).

111 For the reasons I have given it is, in my view, manifest that the primary judge's error "really bore upon the ultimate result". I do not accept that the matters Serco raises in its notice of contention detract from that conclusion. Without binding any future trial judge, in my view, the risk of harm from water heated on a stove being heated to a point where its temperature might exceed that available from a controlled water source was readily foreseeable and was not insignificant. This was not a case such as that referred to in Seage v State of New South Wales [2008] NSWCA 328 ("Seage") (at [32]) per Macfarlan JA (Tobias JA and James J agreeing) to which Serco referred, in which a plaintiff was injured while carrying out the sort of "everyday activities in which employees might incidentally engage in the course of their employment, being activities which if not performed with care might lead to injury [such as] using knives in the staff kitchen[,] ... not ... scald[ing] themselves when pouring water which they have boiled for their tea or coffee" and the like. On the appellant's case, he was injured while carrying out his "regular duties or activities" trying to comply with Serco's WI 56: cf Seage (at [33]).

112 It is not possible to answer the causation issue Serco raises in its notice of contention on the findings of fact which were made, however, prima facie, on the appellant's case a finding of causation was open.

113 I accept that the appellant's case does not appear to be a large claim. However that conclusion is a necessarily imperfect one reached without the advantage of having seen the appellant give evidence and form an impression of the effect of the injury upon him, especially in the light of the psychiatric evidence. In my view in circumstances where it is apparent that the appellant's case was not given proper consideration it is appropriate to order that there be a new trial: see Dixon v Whisprun Pty Ltd [2001] NSWCA 344 (at [74]) per Heydon JA (Beazley JA and Davies AJA agreeing).

Orders

114 I propose the following orders:

(1) Grant leave to appeal.

(2) Appeal allowed.

(3) Set aside the orders made by Curtis DCJ on 30 July 2013.

(4) Remit the matter to the District Court for a new trial.

(5) Costs of the first trial to be in the discretion of the judge presiding at the second trial.

(6) Respondent to pay the appellant's costs of the appeal and the application for leave to appeal and to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

115 MACFARLAN JA: I agree with McColl JA.

116 TOBIAS AJA: I have had the benefit of reading in draft the judgment of McColl JA. I agree with the orders her Honour proposes for the reasons she has expressed.

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Decision last updated: 30 October 2014