Alcoa Portland Aluminium Pty Ltd v Husson

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No 1366 of 2005

ALCOA PORTLAND ALUMINIUM PTY LTD (ACN 006 306 752)	Appellant
	v
GREGORY HUSSON and KEPPEL PRINCE ENGINEERING PTY LTD (ACN 004 727 619)	First Respondent
	Second Respondent

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JUDGES:	MAXWELL ACJ, CHERNOV and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 June 2007
DATE OF JUDGMENT:	11 October 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 209

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NEGLIGENCE – Plaintiff employee of sub-contractor – Back injury due to work-place hazard – Whether rejection of plaintiff’s belief as to origin of hazard leads to rejection of its existence – Whether finding of existence of protrusion open – Whether trial judge engaged in speculation to find existence of protrusion – Suvaal v Cessnock City Council (2003) 77 ALJR 1449 distinguished – Whether trial judge impermissibly reversed onus of proof – Whether occupier breached duty of care – Apportionment of liability – Whether there was failure by trial judge to compare culpability for purposes of apportionment – Whether error in finding no contributory negligence – Whether failure to give reasons for impugned conclusions.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D F R Beach SC with Mr G J Moloney	Hunt & Hunt
For the First Respondent	Mr T K Tobin QC with Mr J F Carmody	Stringer Clark
For the Second Respondent	Mr J Ruskin QC with Mr W R Middleton	Lander & Rogers

MAXWELL ACJ:

In my opinion, this appeal must succeed. Once the trial Judge had rejected the negligence case which Mr Husson had advanced, the proceeding should have been dismissed. It was not open to the judge, in my view, to uphold a case which Mr Husson did not advance.

I have had the advantage of reading in draft the reasons for judgment of Chernov JA. I gratefully adopt his Honour’s summary of the issues in the proceeding, the evidence relating to the workplace and the injury, and the arguments on the appeal.

Mr Husson’s case was that he had backed into ‘a protruding piece of steel’[1] which jutted out some 80-100 millimetres. He was quite certain that he had turned around and ‘grabbed [it] in my hand and had a look at it.’[2] It looked like,

[a] piece of metal being cut off with oxyacetylene and left that jaggedy tooth honeycomb edged on it, and it was a little bit pointy.[3]

The protrusion was, he said, the remnant of cross-bracing which had previously supported the columns of the cooling cabinet. The cross-bracing had been attached to the columns at four points:
The other three areas had been cleaned up with a grinder, or a very good boilermaker had cut it flush, and there was one left, he hadn’t cut the last one off.[4]

[1]Statement of Claim, paragraph [4].

[2]T 101.

[3]T 46.

[4]T 46.

Mr Husson’s case was that it was the sawn-off end of the cross-brace which had injured him, and that both the occupier (‘Alcoa’) and his employer (‘Keppel’) had negligently caused or permitted him to be injured by that protrusion. This case, which I shall refer to as the ‘sawn-off end hypothesis’, was the only case advanced by Mr Husson. He supplied only one ‘hypothesis for the accident.’[5] This was the case which Mr Husson clearly and specifically articulated –

·in his pleading;[6]
·in the opening address by his counsel;[7]
·in his evidence, both in chief and under cross-examination;[8]
·in amendments which Mr Husson made during his evidence to a sketch drawing earlier prepared by him.[9]

[5]See also Suvaal v Cessnock City Council (2003) 77 ALJR 1449 (‘Suvaal’), 1472 (Callinan J).

[6]Particulars of negligence of the second defendant [Alcoa], paragraph (j).

[7]T 17-8.

[8]T 46-7, 103-4.

[9]T 106-7; Exhibit 1.

It is true, as Neave JA points out, that Mr Husson’s particulars of negligence extended beyond the specific allegations against Alcoa of ‘cutting off steel objects whilst leaving protrusions’ and ‘failing to grind off, cut off [or] remove the said protruding steel’. The particulars included allegations against Alcoa of failing to warn Mr Husson of the protrusion, and of failing to conduct an adequate risk assessment of the tasks required of him; and, against Keppel, of failing to instruct, supervise, assist or equip Mr Husson adequately; failing to conduct an adequate risk assessment of the task required of him; and requiring or permitting him to work in a ‘cramped, confined [and] dangerous position’. But the question whether any of those breaches of duty was made out, and if so whether the breach was causative of the injury, could not be determined until the court ascertained whether, and if so when, the alleged sawn-off end had been created.

Unsurprisingly, it was the sawn-off end case which was addressed in the evidence of the defendants’ witnesses. They denied emphatically that there had ever been any cross-bracing.[10] There having been no such bracing, there could have been no sawn-off end.
[10]Cowie, T 615, 620-1, 702; Watt, T 644, 645, 654-5; Wigger, T 764-5.

The judge accepted the defence evidence and rejected the sawn-off end hypothesis. He concluded that there had never been any cross-bracing.[11] In place of the case put forward by Mr Husson, however, the judge adopted an alternative hypothesis, which I will refer to as ‘the corrosion repair hypothesis’. The steps in his Honour’s reasoning were as follows:
[11]Husson v Keppel Prince Engineering Pty Ltd & Anor [2006] VSC 412, [40].

1. The rejection of Mr Husson’s account of the origin of the protrusion did not necessarily mean that ‘his account of the protrusion itself should be rejected’.[12]
[12]Ibid [42].

2. Mr Husson did strike his back while moving backwards in the course of manoeuvring the ram.[13]
[13]Ibid [31].

3. Mr Husson’s description of a protrusion was ‘not inherently improbable’.[14]
[14]Ibid [52].

4. The Alcoa evidence (including drawings) did not ‘satisfactorily exclude the possibility of a protrusion at the relevant date’.[15]
[15]Ibid [46].

5. The evidence as a whole supported the conclusion that the cooling cabinet had suffered material corrosion to steel work and had undergone material patching.[16]
[16]Ibid [51].

6. The evidence demonstrated ‘a real possibility’ that the process of addressing ongoing corrosion of the cooling cabinet did produce a protrusion.[17]

7. On the balance of probabilities, Mr Husson was injured when he backed into a protrusion on one of the end columns.[18]

[17]Ibid [49].

[18]Ibid [53].

In those circumstances, the finding that Keppel had breached its duty to Mr Husson was almost inevitable. As his Honour said:

Once it is accepted that the plaintiff backed into a protrusion upon an end column while undertaking a reasonably foreseeable manoeuvre in the course of removing the ram from the layer conveyer, then it follows that he was not provided with a safe system of work by [Keppel] in accordance with its non-delegable duty. In particular he was not warned or otherwise protected against the risk of injury. The facts that he was experienced and had undergone a confined space induction, were not sufficient to discharge this duty.[19]

[19]Ibid [57].

As to Alcoa, his Honour was satisfied, on the probabilities, that the protrusion was caused by Alcoa’s servants or agents ‘in the course of carrying out work on the cooling cabinet’.[20] He said:

It is plain that the ingot mill was strictly controlled by [Alcoa] and that work on the plant within it was done either by or on behalf of [Alcoa]. I am not able to be satisfied, however, when the protrusion was so caused.[21]

Further, Alcoa knew or ought reasonably to have known of the protrusion prior to Mr Husson’s injury.[22] The judge concluded that Alcoa had failed to take reasonable steps to see that Mr Husson ‘would not be injured by reason of the state of the premises’, and hence was in breach of its duty as occupier under s 14B of the Wrongs Act 1958.
The Suvaal error

[20]Ibid [59].

[21]Ibid [59]-[60].

[22]Ibid [64]. See further [34] below.

The central submission for Alcoa on the appeal was that, on the basis of the principles stated by the High Court in Suvaal, his Honour’s decision could not stand. In my opinion, this submission must be upheld.

The leading judgment in Suvaal was given by Callinan J, with whom Gleeson CJ and Heydon J agreed. (Gleeson CJ and Heydon J gave additional reasons of their own, to which I will refer.) The fundamental point can be stated shortly, by adapting what was said by Callinan J to the present case:

The approach of the [judge] was an incorrect one. [He] seemed to think that, rather than decide whether [Mr Husson] had proved the case that he sought repeatedly to make at the trial and which [the judge] concluded [he] was bound to reject, [he] was obliged to find some other explanation for the accident. This was to misunderstand the nature of the task [he] had to perform.[23]

In this legal context, the phrase ‘explanation for the accident’ means the identification of the causative negligence.

[23]Suvaal (2003) 77 ALJR 1449,1474.

The minority view in Suvaal, expressed in the joint judgment of McHugh and Kirby JJ, was quite different. In their Honours’ view, once the case as advanced by the plaintiff had been rejected as unproved –

[I]t remained the duty of the [trial Judge] to consider any alternative hypothesis that was open on the evidence in the way that it had been contested at trial.[24]
[24]Ibid 1463. When the same point was made again later in the joint judgment, it was said to be ‘appropriate’, rather than a matter of duty, for the trial Judge to ‘turn back to the remaining evidence and the inferences arising from it’: Ibid 1469.

Their Honours made clear, however, that an alternative hypothesis could only be adopted in these circumstances if the trial Judge –
·remained within the evidence;
·addressed the issues litigated; and
·acted with procedural fairness to all the parties.[25]

As will appear, I consider that none of these conditions was satisfied in the present case.

[25]Ibid 1463.

Having rejected the sawn-off end hypothesis, his Honour said:

The critical question with respect to causation is simply whether there was in fact any such protrusion.[26]

With respect, I disagree. In a negligence case such as the present, the critical question with respect to causation is not ‘What caused the injury?’, but ‘Did the defendant’s negligence cause the injury?’[27]

[26]Husson v Keppel Prince Engineering Pty Ltd & Anor [2006] VSC 412, [41].

[27]Chappel v Hart (1998) 195 CLR 232, 256 (Gummow J), citing Environment Agency v Empress Car Co (Abertilley) Ltd [1999] 2 AC 22, 30 (Lord Hoffman).

Determining causation in negligence involves answering the following questions:

1. Do the acts or omissions of the defendant alleged by the plaintiff constitute a breach of the duty of care which the defendant owed the plaintiff?

2. If so, did that breach of duty cause the plaintiff’s injury?[28]

So to formulate the causation question is to ensure that attention is focused on whether the plaintiff has established the causative negligence which he/she alleges.

[28]See Pledge v Roads and Traffic Authority (2004) 78 ALJR 572, 574-5 (Hayne J); see generally March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506, esp 513-19 (Mason CJ).

In Suvaal, there were two defendants, and two ‘hypotheses’ of causative negligence. As against the first defendant (the Incorporated Nominal Defendant), the plaintiff alleged that it was the negligent driving of an unidentified driver (in bumping or brushing him as he rode his bicycle) which caused him to crash. (This claim was referred to by the High Court as ‘the motor vehicle hypothesis’.) As against the second defendant (the local council), the plaintiff alleged a negligent failure to repair and maintain the edge of the bitumen surface, allowing potholes to develop which caused his bicycle to crash. (This claim was referred to as ‘the pothole hypothesis’). The judge having rejected the motor vehicle hypothesis – that is, having concluded that there was no causative negligence by another driver – the question before the High Court was whether it was open to the judge to have attributed causative significance to the council’s alleged negligence in failing to maintain the road.

In Suvaal, Gleeson CJ and Heydon J quoted the following statement by Windeyer J in Anchor Products Ltd v Hedges:[29]
[29](1966) 115 CLR 493, 499.

[I]f [a plaintiff] has made a general allegation of negligence, his alleging particular faults does not necessarily prevent his relying upon an inference to be drawn from the fact that the accident happened.

As their Honours noted, this was a reference to ‘the doctrines surrounding the maxim res ipsa loquitur.’ But, as in Suvaal, the plaintiff in the present case did not rely on res ipsa loquitur. On the contrary, Mr Husson propounded specific allegations of negligence, as I have explained. Consequently, in my view, his case falls squarely within the subsequent passage from Windeyer J in Anchor Products Ltd v Hedges (also quoted in Suvaal), as follows:
[I]f a plaintiff builds his case entirely upon allegations in the pleadings of particulars acts or omissions on the part of the defendant, he may be confined to the issue he has thus chosen, unless at the trial he be allowed to amend.

In the language of Suvaal, Mr Husson was obliged to plead specifically any matter which, if not pleaded specifically, might have taken the defendants by surprise.[30]

[30]Suvaal (2003) 77 ALJR 1449, 1453 (Gleeson CJ and Heydon J).

As noted earlier, the pleading filed on behalf of Mr Husson did allege ‘particular acts or omissions’ as having created the protrusion. There was no application to amend the pleading at any stage during the trial. In his opening address, senior counsel for Mr Husson referred to the cross-bracing and said Mr Husson would give evidence that,

the four points had been cut, three of them flush with the leg and the fourth protruding approximately four inches, or in his language approximately 90 to 100 mil and as he stepped back in the flexed position … he struck his back on the protruding piece of truss which is approximately 600 mil – 60 mil heavy rheo-type thickness which jabbed him in the back, near the centre of his spine, low down and caused him significant pain at that time.[31]

(Mr Husson duly gave evidence to that effect, as noted earlier). Later in the opening, senior counsel said:
The plaintiff principally says as to negligence, each of [the defendants] put him into that confined space to work, having a confined space where there is a piece of steel sticking out where he would be expected to be moving backwards, and sticking out as a consequence of some activity that occurred in there of which [Alcoa] must have known is a breach of the duty of [Alcoa] and a breach of duty of the employer [Keppel].[32]

[31]T 18.

[32]T 31-2 (emphasis added).

That was Mr Husson’s case – that the ‘piece of steel sticking out’ was the sawn-off remnant of cross-bracing – and Alcoa met it head on. The Alcoa witnesses said – and the judge accepted – that there had never been any cross-bracing, and hence no removal of it, and hence no careless leaving behind of a jagged remnant of cross-brace. That finding should, in my view, have disposed of the case. With respect, I consider that it was no more open to the learned trial Judge to propound an alternative hypothesis to explain the existence of the protrusion than it was to the judge in Suvaal to look for an alternative hypothesis to explain the plaintiff’s fall from his bicycle. As Gleeson CJ and Heydon J said in Suvaal:

A trier of fact, confronted with divergent cases being advanced by the parties, may decline to accept either case and may proceed to make findings not exactly representing what either party said. But that does not justify the creation of an entirely new case with which the losing party had no testimonial or other evidentiary opportunity to deal.[33]

[33]Suvaal (2003) 77 ALJR 1449, 1455 (footnotes omitted).

The position would have been quite different if Mr Husson’s case had relied on res ipsa loquitur. (As the High Court made clear in Anchor Products Ltd v Hedges – and as Gleeson CJ and Heydon J reiterated in Suvaal – a plaintiff who pleads specific acts and omissions can always amend later to rely on res ipsa loquitur to meet ‘matters that emerge in the course of the trial’.[34]) A case so formulated would have contended that Mr Husson struck a protrusion, the origin of which was unknown and unexplained. The critical contention would have been that the mere presence of a protrusion in that confined space warranted an inference of negligence on the part of both defendants.
[34](1966) 115 CLR 493, 499; 77 ALJR 1449, 1455.

Had that been Mr Husson’s case, he would not have needed to supply an explanation for the existence of the protrusion. On the contrary, as Neave JA and I noted in Lafranchi v Transport Accident Commission,[35] res ipsa loquitur is only engaged when the causative event is unexplained. Again, had that been his case there would have been no occasion for the judge to speculate about any other possible explanation for the existence of the protrusion.
[35][2006] VSCA 81, [6], [13].

In Lafranchi v Transport Accident Commission, the plaintiff Commission had alleged that, there being no explanation for the defendant’s vehicle having suddenly left the road and hit a power pole (that being the factual cause of the relevant injury), the circumstances of the accident bespoke negligence on the defendant’s part. In the same way, Mr Husson could have advanced a case – even in the alternative – that the origin of the protrusion (that being the factual cause of his injury) was unexplained and that, in the circumstances, his exposure to the risk of injury from the protrusion bespoke negligence on the part of Alcoa and Keppel respectively.

But that was not Mr Husson’s case. He did not plead res ipsa loquitur, either expressly or by implication,[36] and no amendment was sought during the trial. Counsel for Mr Husson did not propound any such case, either at trial or on appeal. Instead, Mr Husson gave a specific explanation for the existence of the protrusion, and that was ‘a fundamental element of his version of events.’[37] Here, as in Suvaal, the trial Judge did not accept that fundamental element, even though he otherwise considered Mr Husson to be ‘sincere, honest and reliable’.[38]
[36]Cf Maitland City Council v Myers (1988) 8 MVR 113.
[37]Suvaal (2003) 77 ALJR 1449, 1451 (Gleeson CJ and Heydon J).
[38]Ibid.

The corrosion repair hypothesis

The first mention of corrosion came on the seventh day of the trial. Mr Husson had said nothing about it in his evidence. This was hardly surprising, since his case relied – exclusively – on the sawn-off end hypothesis. Nor, as a result, had there been any cross-examination of Mr Husson about the nature or extent of any corrosion in the relevant area, nor about whether any repair work had to his knowledge been done, nor about how (if there had been any such repair work) it could have created a four-inch, sharp, protrusion.[39] Nor, most importantly, did any of the Alcoa witnesses give evidence-in-chief about any of those topics. Their evidence was, quite properly, confined to meeting the case as pleaded, opened and dealt with by Mr Husson in evidence – that Alcoa had negligently created the sawn-off end and had then failed to remove it.
[39]Cf Suvaal (2003) 77 ALJR 1449, 1453 (Gleeson CJ and Heydon J).

The first reference to corrosion came during the cross-examination of Peter Cowie, who between 1997 and January 2006 had been Alcoa’s equipment manager (mechanical) with special responsibility for the ingot casting machines.[40] Counsel for Mr Husson pointed out that the ‘hazard control analysis’ for the caster machines required that gloves be worn. The following exchange then took place:

That seems to indicate the old equipment had sharp cutting edges, doesn’t it?---Yes.
What sharp cutting edges did exist on caster 2 in 2001?---It could potentially be like removal of old equipment, we do have some – because of the nature of the process you may have depending on how long a particular unit has been in, there may be some process material attached to it, there may be some corrosion which does form a potential sharp cutting edge.[41]

[40]T 604.

[41]T 664 (emphasis added).

Mr Cowie acknowledged that a photograph taken in 2001 showed corrosion on the external steel plating of the cooling conveyor.[42] He said that corrosion on the outside was greater than corrosion on the inside:

The corrosion comes from … the steam and the air attacking and the process like the environmental surroundings.[43]

[42]T 674-5.

[43]T 703.

Mr Philip Watt, who had worked in the ingot mill since 1986, said:

[T]he outside seemed to corrode more than the inside. I don’t know why that is. Possibly because of the more steam or air, I’m not really sure about that. But certainly there is quite a bit of corrosion on there because there was the – the plan was to change these units out.[44]

The change of the units, however, was not because of the corrosion.

[44]T 742.

Richard Wigger was an expert in the engineering of casting machines. His evidence-in-chief was directed at the presence or absence of cross-bracing. (He said that there was no need for cross-bracing for a machine of this kind.[45]) In cross-examination, Mr Wigger was asked about corrosion. He said that the major rust or corrosion was on the infill panels between the posts, not on the posts themselves.[46] It was pointed out that one of the vertical posts appeared from the 2001 photograph to be corroded and Mr Wigger was asked whether that would make the steel ‘potentially sharp’. He answered, ‘It would have flakes of corroded metal on it, yes.’[47] Although Mr Wigger believed that there would ‘definitely’ have been corrosion on the inside, he pointed out that the photograph only showed corrosion on the outside. Mr Wigger believed that some of the infill panels were ‘patched and replaced’ because of corrosion,[48] but he was not aware of any patching being done on the columns.
[45]T 764-5.
[46]T 770.
[47]T 771.
[48]T 778.

The judge concluded that the evidence,

demonstrated a real possibility that the process of addressing ongoing corrosion of the cooling cabinet did produce a protrusion:
·as a result of the removal of the cross-beam and associated patching; or
·as the result of cutting and/or welding associated with the replacement of side panels; or
·as the result of patching of the end column itself as the result of corrosion.[49]

In a footnote to this part of the reasons for judgment, his Honour quoted the following statement by Mr Cowie:
If there was any welding to be done, it would be potentially oxywelding to remove mounting bolts, to remove potentially the frame, or repair work.[50]

[49]Husson v Keppel Prince Engineering Pty Ltd & Anor [2006] VSC 412, [49].

[50]Ibid.

With great respect, I do not consider that there was any view of the evidence which justified treating the corrosion repair hypothesis as a ‘real possibility’, as distinct from a purely theoretical possibility. Nothing in the evidence suggested that either the corrosion itself or any repair of it could have created a jagged protrusion 80-100 millimetres in length. No suggestion was put to any of the Alcoa witnesses, let alone accepted by them, that such a sharp protruberance could have been created in the course of repairing or removing corroded infill panels, or in patching the end column.

Alcoa submitted that Mr Husson had,

produced no evidence (and there was no evidence from any of the other witnesses) on which it could be found directly or by reasonable inference that there had been any oxy-acetylene cutting or welding work done by any person for whom Alcoa was responsible in the work area prior to the date of the plaintiff’s injury that could have produced a protrusion of the type relied on by the plaintiff.

In my view, that submission must be upheld.
‘Real possibility’ not enough

Even if – contrary to my view – the evidence had supported the corrosion repair hypothesis as ‘a real possibility’, that still would not have provided a basis for judgment in favour of Mr Husson. For Mr Husson to succeed, the judge had to be satisfied on the balance of probabilities that the defendants had been negligent and that their negligence had caused Mr Husson’s injury.[51] (As Neave JA points out,[52] his Honour’s discussion of ‘real possibilities’ appears to have been directed at the question whether Mr Husson should be believed as to the existence, though not the origin, of the protrusion. But that is, with respect, consistent with the judge’s misidentification of the ‘critical question’ about causation, as discussed in paragraphs [13]-[14] above.)
[51]See Jones v Dunkel (1959) 101 CLR 298, 304-5 (Dixon CJ).
[52]At [103].

The alternative negligence case could therefore only have succeeded if his Honour was satisfied on the balance of probabilities that Alcoa had been negligent in creating the protrusion and that one or both of the defendants had been negligent in allowing it to remain and in failing to warn Mr Husson of it. To reach that position, his Honour needed to make positive findings about how and when the protrusion had been created. Those findings were necessary before he could decide whether the creation of the protrusion constituted a breach of duty by Alcoa, and whether the subsequent failure to observe the protrusion, or remove it, or warn Mr Husson of its existence, constituted a breach of duty by either or both of the defendants. The judge said himself that he could not be satisfied when the protrusion was created, or whether it was present on any prior occasion on which Keppel had carried out work in the vicinity of it.[53]
[53]Husson v Keppel Prince Engineering Pty Ltd & Anor [2006] VSC 412, [60].

For similar reasons, once the judge had rejected the sawn-off end hypothesis, he was not in a position to reach any conclusions about contributory negligence, or about the apportionment of liability between the defendants. None of those questions could be resolved on the basis only of a ‘real possibility’ that at some unknown time in the past some unknown work in relation to corrosion had, by unknown means, created a sharp-edged protrusion.

The judge appears to have come to the view that, once he accepted Mr Husson’s evidence that he did strike a protrusion when moving backwards, the conclusion of breach of duty followed almost automatically, as if the event ‘spoke for itself’. I set out earlier the conclusion reached in relation to the employer, Keppel. The finding about Alcoa was to similar effect. His Honour concluded that the company knew or ought to have known of the protrusion before Mr Husson was injured –

·because, on the balance of probabilities, Alcoa’s servants or agents had caused the protrusion;
·because of the continuing work of its employees in the vicinity of the cooling cabinet; and
·because it was improbable that ‘a protrusion of the type in issue’ could have been created except in the course of work which had to be undertaken with Alcoa’s authority.[54]
[54]Ibid [64].

Once knowledge of the protrusion was attributed to Alcoa in this way, it was inevitable that Alcoa would be found to have breached its duty as occupier, given the gravity and likelihood of probable injury and the relative ease of eliminating the danger (‘simply by cutting away or grinding away the protrusion’).[55]
[55]Ibid [83].
Breach of the requirements of procedural fairness

As noted earlier, McHugh and Kirby JJ in Suvaal identified as one of the conditions of the adoption of an alternative hypothesis that there be no procedural unfairness. Their Honours stated the applicable principle in these terms:

If a party participates in a trial to meet a particular case which that party has pleaded and presented in only one way, it would be unfair to the other party to decide the case on a different basis of which the losing party had no fair notice and which it had no proper opportunity to defend. Although rigid adherence to pleadings is no longer uniformly practised and not a few cases stray from the pleadings without consequential amendment, such practices cannot excuse procedural injustice. It is elementary that a party is entitled to know the issues of fact that are to be decided in a trial where these are determinative of its success or failure.[56]

[56]Suvaal (2003) 77 ALJR 1449, 1467 (citations omitted).

In the view of McHugh and Kirby JJ, there had been no procedural unfairness in Suvaal because the ‘pothole hypothesis’ had been pleaded against the council, as an alternative to the ‘motor vehicle hypothesis’ pleaded against the first defendant.[57] The majority took a different view on that question.[58]
[57]Ibid 1469-70.
[58]See ibid 1475-6 (Callinan J).

In the present case, no alternative case was pleaded or prosecuted. Adapting the language of McHugh and Kirby JJ, both defendants here participated in a trial to meet a particular case which Mr Husson had ‘pleaded and presented in only one way’. It was therefore, in my opinion, unfair to the defendants to decide the case ‘on a different basis, of which [they] had no fair notice and which [they] had no proper opportunity to defend.’

Not a credit-based conclusion

One of the issues on which the members of the High Court in Suvaal were divided was whether the alternative hypothesis (on the basis of which the trial Judge had found for the plaintiff) was a credit-based conclusion. McHugh and Kirby JJ concluded that it was, since the trial Judge’s adoption of the ‘pothole hypothesis’ rested in part upon the acceptance of the credibility of two key witnesses. As a result, the appellate court’s entitlement to draw contradictory inferences, make conflicting findings of fact and reach different assessments was constrained.[59]
[59]Ibid 1462.

Gleeson CJ and Heydon J, on the other hand, concluded that the trial Judge’s key findings were not credit-based. Noting that the judge had rejected the plaintiff’s account of the accident, their Honours said:

[W]hile it may in some circumstances be open to the judge to seek to account for the witness’s injuries by recourse to inferences from other evidence in the case, and while it may be possible to conclude that the [plaintiff] did hit potholes at the side of the road, it cannot be said that that is a credit-based conclusion. The plaintiff’s account of the accident was a single account, which if accepted would have rendered the Nominal Defendant liable. To reject the assigned role of the car is to reject the propositions which the plaintiff was communicating, and is not to base the element relating to the potholes on acceptance of the witness’s credit.[60]

[60]Ibid 1452.

In the present case, the respondents argued that the judge’s key finding was credit-based and should not be disturbed. Reliance was placed on the following passage from Rosenberg v Percival:[61]

Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellant court set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case.

[61](2001) 205 CLR 434, 448 (McHugh J).

According to the submission made on behalf of Mr Husson, the judge,

heard very cogent evidence which supports his judgment and in particular evidence that:
1.Husson struck his back on a protrusion under the cooling conveyor of caster 2 whilst removing a ram.
2.A protrusion of the nature that Husson struck was a safety hazard which both Alcoa and Keppel owed a duty to Husson in respect of whilst undertaking the task that he was at the time of his injury.
3.The protrusion whilst not being the remnant of a cross-bracing described by Husson but in view of the state of the caster at the time of the injury probably was as a consequence of corrosion and/or rectification work done in respect thereto.

In my opinion, the judge’s conclusion that the corrosion repair hypothesis accounted for the injury to Mr Husson was not credit-based. Plainly, the judge’s acceptance of Mr Husson’s evidence that he struck his back on a protrusion of some kind was credit-based. But, in this case as in Suvaal, the critical issue was the identification of the relevant acts or omissions which constituted the causative negligence. The judge’s adoption of the corrosion repair hypothesis as the explanation of the accident was not based on any finding as to Mr Husson’s credit. After all, Mr Husson gave no evidence about corrosion.

Conclusion

For these reasons, the only course open to this Court, in my opinion, is to set aside the orders made by the trial Judge and to substitute an order dismissing the plaintiff’s proceeding.

CHERNOV JA:

This appeal was heard together with the appeal (and cross-appeal) in proceeding No 5411 of 2006. So far as is relevant, both appeals arise out of the injury sustained by the first respondent, Gregory Husson (‘Husson’) on 26 April 2001 in the course of his work at the plant of the appellant, Alcoa Portland Aluminium Pty Ltd (‘Alcoa’) whilst he was in the employ of the second respondent, Keppel Prince Engineering Pty Ltd (‘Keppel’). Our decision in proceeding No 5411 of 2006[62] is to be published immediately after the publication of these reasons and, as will become apparent, the latter decision should be read in conjunction with this decision.
[62]Alcoa Portland Aluminium Pty Ltd v Victoria WorkCover Authority [2007] VSCA 210.

Circumstances of the injury

In this proceeding Husson claimed as against Alcoa and Keppel damages for personal injuries that he said were sustained by him in the course of his employment with Keppel when carrying out work at the smelter operated by Alcoa. The circumstances surrounding the injury and the particulars of Husson’s claim are set out in the reasons of the learned trial judge and it is sufficient merely to summarise what his Honour said in that regard. At the time of the injury Husson was 46 years of age and was an experienced rigger. He was employed by Keppel and was part of its team carrying out maintenance at the ingot mill building at Alcoa’s smelter. Husson’s principal duties involved working with cranes and forklifts for the purpose of general maintenance, including using chain blocks and removing and installing items of machinery. On the occasion in question, during a shut down of Alcoa’s plant, Husson was required to participate in the removal of a hydraulic ram that formed part of a centring device. The work was carried out, as I have said, at the ingot mill building at the smelter. During the ordinary operation of the mill, ingots were conveyed to a cooling cabinet within which they travelled up an ascending conveyor deluged with water. The cooling cabinet itself comprised a series of three attached enclosed sections increasing in height to accommodate the conveyor as it rose. The ingots moved from the cooling conveyor on to a layer conveyor which transferred them to a machine by which the ingots were stacked in bundles or rejected. There was a centring device that was located at the point when the ingots came out of the cooling cabinet and moved from the cooling conveyor on to the layer conveyor. In order to move the hydraulic ram that powered the centring device, presumably for maintenance purposes, the practice adopted by Keppel employees was to use a team of two or three workers above the conveyors and one worker below. Husson was usually asked to work below the conveyor because the space was confined and, in particular, the head room was relatively low – approximately 4’6”. He was of relatively short stature (5’7”) and accordingly better able to work within the space than a number of his taller colleagues. It seems that once the ram was unbolted from its supporting brackets, it was lowered through an opening to Husson who was immediately below it. The ram weighed approximately 10 kg and it was necessary that, initially, it be handled in a vertical position.

At the time that Husson received the ram he was in a position where he could not readily see the workmen above him and they could not see him. He took hold of the ram with his hands, clasped it to his chest and then, he said, backed ‘gingerly’ towards the cooling conveyor cabinet. He said that he could not move forward because of the constricted space, and when he moved backwards he struck his mid-back to the left of his spine, in the region of his belt line, upon a protrusion that he said jutted out from one of the twin columns (‘the end columns’) that supported the upper end of the cooling conveyor cabinet and formed part of a box section frame. Husson said in his evidence that the impact caused him pain and to put down the ram. He claimed that he turned and looked at what he struck, grasping the protrusion with his gloved hand. He said that it appeared to have been created by cutting with oxy-acetylene welding equipment and that it jutted out some 80 to 100 mm with a jagged edge and was ‘a little bit pointy’. He claimed in his evidence that the protrusion was a remnant of one end of diagonal angle iron criss-cross bracing that had been removed between the end columns (‘cross-bracing’).

Husson said that when he examined his back, he saw that there was a red mark where he struck the protrusion. He kept working notwithstanding that he had a sore back and did not report the incident to his employer because he did not think he was badly hurt. He did, however, mention the incident to his work colleagues over the next few days and spoke to his wife about it on the night of the injury and showed her the mark. Apparently she endeavoured to massage the area but it was too sore.

Husson’s condition worsened progressively and, on 16 May 2001, he told his employer of his injury and that he was going to see the doctor. At that time he still considered that he was not badly injured. Be that as it may, the medical investigation showed that he had a pre-existing spondylolisthesis at the junction of the lumbar and sacral spine, whereby the lower end of the lumbar spine sat forward some 1.5 cm upon the vertebra below. Apparently, this occurred as a result of Husson’s fifth lumbar vertebra having slipped forward over time on the first sacral vertebra due to pre-existing stress fractures.

Although, according to Husson, the condition was asymptomatic prior to the accident, it became symptomatic thereafter and he suffered recurrent pain and limitation of activity. He also suffered consequent depression and psychological upset. In the result, he brought a claim against Alcoa and Keppel.

Response of Alcoa and Keppel

Alcoa and Keppel denied that Husson was injured in the manner alleged by him and at the trial argued that, even if he was so injured, the injury was not caused by any breach of duty on their part. In the alternative, they claimed that Husson was guilty of contributory negligence, although Keppel did not pursue that claim at the trial. They sought contribution from each other in the event of judgment against either of them. There was also a dispute between the parties as to the consequences of the injury to Husson and the appropriate quantum of damages if liability was established. A controversial issue at the trial was whether the protrusion existed as Husson claimed, or at all.

His Honour’s relevant findings of protrusion

After comprehensively examining the evidence, his Honour made the following relevant findings. First, the learned trial judge concluded that Husson injured his back while working as described on 26 April 2001. His Honour was satisfied on the balance of probabilities that Husson struck his back while moving backwards in the course of manoeuvring the ram from the centring device and accepted that, in the circumstances, it was reasonable for Husson to move backwards as he did. Next, his Honour noted that the protrusion that was described by Husson was not part of the original design of the cooling cabinet as depicted in the drawings before the court and that the cooling cabinet had been demolished in 2002 and replaced prior to trial. Importantly, his Honour concluded that the weight of the evidence did not support Husson’s claim that the protrusion was a remnant left when diagonal cross-bracing was removed between the end columns and observed that this aspect of Husson’s evidence did not ‘assist his credit’. Nevertheless, the trial judge considered that it did not necessarily follow from this that Husson’s claim that he was injured by striking his back on a protrusion should be rejected. His Honour observed that Husson’s purported explanation of the protrusion should be looked at in the light of a person who had not returned to the scene of the accident after the date of injury until it was materially altered. Moreover, said his Honour, Husson’s evidence on this issue was really evidence of his belief as to the origin of the protrusion and it was this aspect of his testimony that was not accepted. But it did not follow from this, said his Honour, that he should reject Husson’s claim that he injured his back on a protrusion.

Importantly, the judge said, the critical question with respect to causation ‘is simply whether there was in fact any such protrusion’. In concluding that the weight of the evidence favoured Husson’s assertion that such a protrusion was present at the relevant time, his Honour had regard to a number of matters, the more relevant of which were the following. First, the judge considered that Husson was an honest complainant. Secondly, his injury, as it manifested itself on his back, was consistent with his having struck a protrusion as he described it. Next, the origin of the protrusion was explicable by the work that was carried out by or on behalf of Alcoa in respect of accumulated corrosion in the area in question. In this context, his Honour noted that neither the drawings of the cooling cabinet nor the evidence of Alcoa officers satisfactorily excluded the possibility of a protrusion being present at the relevant date. Moreover, said his Honour, the evidence demonstrated that there was a real possibility that Alcoa’s process of addressing the ongoing corrosion of the cooling cabinet produced the protrusion. His Honour said that the evidence as a whole supported the conclusion that the cooling cabinet was, at the relevant time, in its last year of operation and had by that time suffered material corrosion of steel work and was the subject of patching. He considered that these factors may have explained the presence of the protrusion on which Husson injured his back.

Breach of duty

His Honour went on to decide that, in terms of breach of duty of care, once it was accepted that Husson backed into a protrusion upon an end column while undertaking a reasonably foreseeable manoeuvre in the course of removing the ram, it followed that he had not been provided with a safe system of work by Keppel in accordance with its non-delegable duty. His Honour also said that he was satisfied that the probability was that the protrusion was caused by Alcoa’s servants or agents in the course of carrying out work on the cooling cabinet. The judge said that the plant that contained the ingot mill was strictly controlled by Alcoa and that, at all relevant times, the work on the plant was done either by or on behalf of Alcoa and access was at all times available to its employees and supervising staff. His Honour concluded that, in the circumstances, he was satisfied that Alcoa, by its servants and agents, knew or ought reasonably to have known of the protrusion prior to Husson’s injury. His Honour rejected Alcoa’s submission that, in view of the contractual relationship between it and Keppel, Alcoa was entitled to delegate the provision of a safe system of work to Keppel.

The judge also took the view that Alcoa owed Husson a duty of care as an occupier to take reasonable care in accordance with s 14B of the Wrongs Act1958, in respect of which, the judge said, the common law principles stated by Mason J in Wyong Shire Council v Shirt[63] were applicable. His Honour concluded by reference to the requirements of s 14B(4) that Alcoa had not discharged its duty of care to Husson in the sense that it failed to take reasonable steps to see that he would not be injured by reason of the state of the premises.
[63](1980) 146 CLR 40, 47-8.

Contribution

On the question of contribution between Alcoa and Keppel, his Honour concluded that the principal cause of Husson’s injury was the breach by Alcoa of its duty towards Husson and apportioned, pursuant to ss 23B and 24(2) of the Wrongs Act, liability on the basis that Alcoa was liable as to 80 per cent and Keppel as to 20 per cent.

Contributory negligence

On the question of contributory negligence, his Honour concluded that Alcoa failed to establish contributory negligence on the part of Husson.

Issues on appeal

When the appeals came on for hearing before us, Alcoa’s counsel helpfully divided the disputes that were raised in the two appeals into six groups or issues. Three of those issues arose in the present appeal and three in the other proceeding. The three issues alive in the present appeal concerned the following findings by the trial judge:

(a) That Husson struck his back on a protrusion.
(b)The extent of the apportionment of liability for Husson’s injury as between Alcoa and Keppel.
(c)That there was no contributory negligence on the part of Husson in respect of his injury.

First issue – finding of protrusion not open

It was Alcoa’s principal case that his Honour’s finding as to the existence and cause of the protrusion was the result of impermissible speculation or surmise on his part. Thus, it was said, the following findings of his Honour as to the likely origin of the protrusion were wrong and not warranted by the evidence. First, the finding that there was a real possibility that Alcoa’s process of addressing ongoing corrosion of the cooling cabinet produced the protrusion. Secondly, that the cooling cabinet had by the date of the accident suffered material corrosion to steel work and had undergone patching. Next, that the protrusion was caused by Alcoa’s employees in the course of carrying out work on the cooling cabinet. Finally, the finding that in the ordinary course of the ingot mill operations Keppel did not, but Alcoa’s employees did, have access to the conveyor belt.

Importantly, it was said, the finding that the protrusion existed at the end of one of the columns in the work area departed significantly from Husson’s case as it was put to the court. It was pointed out that the case for Husson was opened and conducted during the first six days of the trial on the basis that the protrusion was a piece of metal – 80-100 mm long – that had been cut off with an oxy-actelyene device such that there remained a ‘jaggedy tooth honeycomb edge on it’. It was said for Alcoa that there was no suggestion during this part of the case that there was corrosion to the steel work in the vicinity of the accident that was being patched. The first reference to these matters, said counsel, was during the seventh day of the trial in the course of cross-examination of Peter John Cowie, a mechanical fitter and equipment manager who was employed by Alcoa. In answer to a question dealing with sharp edges that existed on caster 2 at the relevant time, the witness effectively volunteered that there ‘may have been some corrosion which formed a potential sharp cutting edge’. The presence of corrosion in the area in question was then taken up in cross-examination, it was said, by reference to a photograph of the cabinet (exhibit C). The witness said, however, that there was not ‘a considerable amount’ of corrosion present. The photograph shows, amongst other matters, a pillar with a V-bolt wrapped around it at an angle protruding outwards from the pillar. Some corrosion seems also to be present on the pillar. Counsel for Alcoa objected to Mr Cowie being cross-examined about the work practices at the plant in relation to corrosion and, in particular, the hazards that may have been present by reason of those matters. The objection was taken on the principal basis that Husson’s case was opened on a different footing. It was argued that Husson’s original claim, and one that Alcoa was brought to court to meet, was that the protrusion was the result of work on cross-bracing that supported the legs of the stand that left a piece of metal sticking out of the bracing. In those circumstances, it was claimed that Husson should be not permitted to change his case so materially and so late in the trial. His Honour, however, overruled the objection saying that ‘the probabilities have to be assessed in light of the whole of the evidence as to the system of work’. This ruling is not the subject of the appeal.

Counsel for Alcoa nevertheless argued before us that, once his Honour concluded that there was no protrusion as described by Husson, it was speculative on his part to go on to say in his reasons that there was a protrusion on which the Husson injured his back and that it may have been caused by corrosion or repair to the steel area in question. It was not open to his Honour, it was argued, to have been satisfied that any relevant protrusion was brought about by corrosion of the steel structures and/or by patching up work carried out in that regard. Counsel pointed to the evidence of the technical witnesses that he said did not provide a basis for concluding that there was a possibility that corrosion was present in the relevant area. Moreover, said counsel, Husson did not produce any direct evidence of a protrusion that could have caused him injury, whether arising from corrosion or otherwise. Importantly, it was said, Husson did not say in his evidence that the protrusion on which he injured himself was a piece of corroded or rusted steel located on or near the support columns or anywhere else in the work area. In any event, Alcoa argued before us, even if it was open to his Honour to infer the presence of corrosion in or around the cooling cabinet and consequent patching of it, on the evidence it did not produce the extent of the protrusion for which Husson contended.

In the circumstances, counsel submitted, having rejected Husson’s basic case as to how the claimed protrusion was present, his Honour impermissibly – on the basis of speculation or conjecture rather than evidence – found another basis on which he concluded, as a matter of probability, that the protrusion on which Husson injured himself existed at the relevant time. In that respect, it was said, the situation here was not materially different from Suvaal v Cessnock City Council[64] (‘Suvaal’) where the decision below was overturned on appeal because the primary judicial officer concluded, on a basis not pursued by the plaintiff, that the plaintiff should succeed in his claim for negligence.
[64](2003) 77 ALJR 1449.

I consider, however, that, notwithstanding that his Honour rejected Husson’s claim that the source of the protrusion was work on the cross-bracing that left a remanent of it ‘sticking out’, it was open to him to conclude on the whole of the evidence that Husson injured himself on a protrusion as he was backing with the ram, and that the origin of the protrusion was possibly repair or like work in respect of corrosion at or in the vicinity of the upright on which the appellant struck his back. His Honour was plainly entitled to find Husson a credible witness as to his claim that he injured himself on a protrusion notwithstanding that his explanation or belief as to its origin had to be rejected. As a matter of logic, the latter finding did not compel the rejection of the substance of Husson’s claim as to how the injury occurred. And as to Husson’s credibility, the judge had the opportunity of gauging it during the course of his evidence which this Court plainly does not have.[65] Moreover, there was evidence before his Honour on which he could properly conclude that the protrusion may have arisen from rectification work carried out in relation to corrosion that built up in the area. Thus, Mr Cowie and Phillip Andrew Watt who was, at the relevant time, a reliability specialist with Alcoa, gave evidence to the effect that there was some corrosion in the area in question and the remedial work that was carried out in relation to it may have produced a potentially sharp cutting edge. Moreover, it seems that such developments would not have been shown on the company’s plans of the machinery and locality. Furthermore, Richard John Wigger, who is a qualified design draftsman in mechanical engineering and who also has qualifications as a fitter and turner (and who was familiar with the conveyors in question and the structures which supported it) was called as a witness by Alcoa and said that there was a considerable amount of corrosion where the cross member was likely to attach to the sides or the upright. Mr Wigger further said that where there has been corrosion in certain areas, patches were placed there essentially to stop the water from the cooling cabinet leaking onto the floor below and causing a hazard. Thus, there was evidence before his Honour that there was, or had been, corrosion in the area where the accident occurred and that work had been carried out in relation to it by or on behalf of Alcoa from which it was open to conclude that it may have contributed to the origin of the protrusion.
[65]See Fox v Percy (2003) 214 CLR 118.

As his Honour said, the evidence demonstrated a real possibility that the process of addressing ongoing corrosion of the cooling cabinet did produce a protrusion as a result of the removal of the cross-beam and associated patching, or as a result of cutting and/or welding associated with the replacement of side panels, or as a result of patching of the end column itself as a result of corrosion. Thus, I think that the judge had evidence before him as to how the protrusion might have come about, but it is important to note that his Honour did not say that the corrosion caused the protrusion. In the circumstances, it was sufficient for him to be satisfied that there was a real possibility that such events produced the protrusion.

Furthermore, in reaching the impugned conclusion that Husson struck his back on a protrusion, his Honour was also entitled to take into account the fact that the injury, as reflected on his back, was consistent with his striking a protrusion, and with the evidence of Mrs Husson as to the location and intensity of the injury which she said she saw on her husband’s back shortly after the accident. Those circumstances were consistent with the injury being caused as Husson described it. I mention for completeness that Keppel accepted Husson’s claim as to his injury and the circumstances of it after conducting an investigation into the claim (although this admission is not relevant to the claim against Alcoa).

As to Suvaal, on which Alcoa’s counsel relied on this issue, as I have said, I consider that it can be readily distinguished from the present case on at least two bases. The first is that in Suvaal the plaintiff’s factual account of the circumstances leading to the incident was, in essence, inexorably linked to his claim of negligence against the defendant council such that, once his version was explicitly rejected, there was no proper basis for the finding of negligence. Here, it simply cannot be said that the rejection by the judge of that part of the respondent’s evidence that purported to describe the protrusion fatally compromised or necessarily negated his real case against Alcoa. Secondly, in Suvaal, the respondent did not have the opportunity of testing the case that the Master found existed in favour of the plaintiff. Here, Husson’s alternative case as to the source of the protrusion was, as I have explained, raised during the trial so that Alcoa had the opportunity of testing it.

As I have said, the essential case against Alcoa was that, while working under an ingot castor mould changing a ram, on the premises occupied by it, ‘[Husson] struck his back with considerable force upon a protruding piece of steel as a result of which he suffered injury’.[66] The cause of the injury that was consistently alleged was a steel protrusion that he struck in the circumstances described. His Honour found, on the whole of the evidence before him, that the respondent was injured when he backed on to a protrusion on one of the end columns.[67] The respondent’s erroneous description of its origin, as his Honour correctly recognised, could not, in the circumstances, be determinative of the fact of the protrusion’s existence and cause of the respondent’s injury.
[66]Statement of claim (emphasis added).
[67]Husson v Keppel Prince Engineering Pty Ltd & Anor [2006] VSC 412, [53].

Whereas in the present case the only claimed operative cause of the respondent’s injury – a metal protrusion – is unaffected by the rejected evidence as to his belief of its origin, in Suvaal the evidence of the plaintiff that was rejected by the Master was, as I have said, critical to his case against the defendant. As Callinan J said, ‘the appellant’s explanation for the accident … from beginning to end of his evidence … required for its operative cause that there be a negligent driver of an unidentified motor vehicle’.[68]
[68]Suvaal (2003) 77 ALJR 1449, 1471.

Furthermore, as has been noted, this is not a case where it can be said, as Gleeson CJ and Heydon J did in Suvaal, that the judge impermissibly ‘reach[ed] conclusions about the cause of the accident which the plaintiff had rejected and which the plaintiff had prevented the [defendant] from testing’[69] or that the finding involved ‘the creation of an entirely new case with which the losing party had no testimonial or other evidentiary opportunity to deal’.[70] In the present case, the rejection of the respondent’s ‘hypothesis’ as to the origin of the protrusion did not materially alter either his claim of its existence or his claim of negligence against Alcoa, and Alcoa had the opportunity of testing Husson’s alternative case on the origin of the protrusion.
[69]Ibid 1453 (Gleeson CJ and Heydon J) (emphasis added).
[70]Ibid 1455.

A brief examination of Suvaal makes apparent that the appellant’s reliance on it is misconceived. The determinative issue was the impossibility of proof of the council’s negligence as the cause of the plaintiff’s injuries once his account of the events was rejected. The appeal was against a decision of the Court of Appeal (NSW) overturning a Master’s judgment that the defendant was liable to the appellant in negligence. The plaintiff was injured when he lost control of the bicycle that he was riding on the defendant municipality’s road and crashed into a tree. He maintained that an unidentified driver forced him to veer left to the edge of the road, whereupon he struck potholes, and that this essentially caused his steering to collapse and resulted in his loss of control of the bicycle and the accident. He sued the nominal defendant and the council, the former on the basis of the alleged involvement of a vehicle, the latter on the basis of, inter alia, failure to maintain the road surface. The plaintiff’s case, to which he steadfastly adhered and that was rejected by the trial judge, was that a car had forced him to the left and into the potholes. The council submitted that the plaintiff’s ‘leftward movement could have been caused by a failure in the integrity of the handlebars in normal use on the road before he ran into the potholes’.[71] The nominal defendant made similar submissions. The plaintiff emphatically denied the possibility of any other cause for the accident. In finding the council negligent, the Master determined that he veered to the left because of a temporary loss of concentration and struck the potholes and that, on the balance of probabilities, the impact of striking the potholes caused the bicycle’s steering to collapse.
[71]Ibid 1450.

The Court of Appeal overturned the decision of the Master, essentially on the basis that there was no proper basis for the finding of negligence (in its maintenance of the road surface) against the council. In dismissing the plaintiff’s appeal, Callinan J, with whom Gleeson CJ and Heydon J agreed, said that the Court of Appeal had no option but to allow the appeal. His Honour said:

It was not open to the Master to find that a momentary lapse in concentration caused the appellant to deviate from the bitumen surface and into the potholes. That was something that the appellant had not claimed, and which as between him and the respondent, the latter was not required to answer. … It was, in short, not an issue in the case, and certainly was not an issue between the appellant and the respondent. As an operative cause, momentary inattention seems to have been entirely the invention of the Master. [72]

Later, his Honour said:
The appellant having asserted and reasserted one cause only of the accident, the respondent was not bound to go on an excursion in cross-examination to identify and refute a version not even hinted at by the appellant.[73]

[72]Ibid 1474-5 (Callinan J).

[73]Ibid 1475.

As has been noted, once the plaintiff’s version was eliminated, his Honour considered that the complexion of the case was materially altered and that there was no basis for finding negligence. His Honour said:

A finding that he was not [forced into the potholes], but that a momentary lapse in concentration took him into them, is a quite different matter. It gives rise to a question not addressed by anyone at the trial, indeed, not even by the Master, and that is, how it could reasonably be expected that the respondent might and should guard against momentary inattention by eliminating potholes of which the appellant was well aware, and which were on the edges of a roadway, the characteristics of which were well known to him. Had the respondent contemplated the case found against it, no doubt it would also have wished to make different submissions with respect to the fragility of the bicycle and the part played by that in this changed scenario of the accident.[74]

His Honour concluded that the appellant was not entitled to succeed on a case that was not put by him. The crucial point however was not one of formality but rather that, given the rejection of the case that was put by him, no claim of negligence against the council was made out.

[74]Ibid.

Gleeson CJ and Heydon J similarly considered that it was impermissible for the primary judge to reach conclusions about the cause of the accident which the plaintiff had explicitly rejected. Their Honours said:

A trier of fact, confronted with divergent cases being advanced by the parties, may decline to accept either case and may proceed to make findings not exactly representing what either party said. But that does not justify the creation of an entirely new case with which the losing party had no testimonial or other evidentiary opportunity to deal. [75]

[75]Ibid 1455.

It has already been mentioned that in Suvaal the plaintiff’s insistence on his account that a car forced him into potholes whereupon his steering collapsed[76] effectively precluded the respondent from exploring other avenues of causation (for example, whether the prior collapse of his steering in fact caused his loss of control). In the present case, on the other hand, the respondent’s ‘alternative’ explanation of the cause of the protrusion could be dealt with by Alcoa at trial. Moreover, in Suvaal the plaintiff’s account precluded examination of the ‘factual rationalisation at which the primary judge eventually arrived in finding the [defendant] liable’.[77] Here, however, the circumstances make it apparent that a protrusion was the only claimed operative cause of the plaintiff’s injury; that was the issue between the parties. Husson’s account merely purported to identify what was the source of protrusion, it was not a ‘fundamental element of his version of the events’[78] – and it was only on that matter that his case changed and his Honour made a finding that was not originally pressed by him. The critical question in these circumstances is, what was the real issue between the parties?; and the critical corollary, was Alcoa denied an opportunity of meeting the case that the judge found? Here, the relevant issue was whether Husson struck his back on a protrusion and, given the permitted cross-examination, Alcoa had the opportunity of meeting the case that was found to exist by his Honour. Alcoa did not contend to the contrary.
[76]The italics represent what was the crucial counterfactual point.
[77]Suvaal (2003) 77 ALJR 1449, 1453 (Gleeson CJ and Heydon J).
[78]Ibid 1451.

In the present case, as I have said, the evidence on which his Honour’s impugned decision partly rested was adduced in large part through cross-examination of Alcoa’s witnesses and, although objection was taken to such cross-examination, no claim was made below, or before us, that this worked a relevant prejudice against Alcoa. And, as I have said, there was an evidentiary basis on which his Honour was entitled to arrive at the impugned conclusion.

The impugned finding was based in part on the finding of credibility of Husson (and his wife) as to his claim that the injury was the result of his back coming into contact with a protrusion as he claimed. His contention that he was so injured was plainly in issue, and his credibility on that and related issues was tested through cross-examination of him by very experienced trial counsel appearing for Alcoa. Thus, the respondent’s demeanour in the witness box and the judge’s impression of him as a witness were important factors in his Honour’s resolution of the credibility issue. In my view, it could not be properly said that his Honour ‘failed to use or palpably misused his advantage as a trial judge’.[79] In those circumstances, I consider that there is much force in the submission that this Court should be slow to intervene in the way proposed by the appellant. In this context I note the dissenting joint judgment of McHugh and Kirby JJ[80] in which their Honours essentially said that, consistently with the established principles, a decision of a primary judge, who has had the benefit of seeing and hearing all of the evidence, should only be overturned if the decision is, for example, ‘glaringly improbable’ or ‘contrary to the compelling inferences of the case’.[81] I mention for completeness that, in Suvaal, Gleeson CJ and Heydon J did not accept that the impugned finding by the Master was a finding that was based on the plaintiff’s credit given that she rejected his sole account of events. In this case, however, as I have said, his Honour’s finding was based in part on the acceptance of the respondent’s evidence as to striking a protrusion in the manner described by him.
[79]See Fox v Percy (2003) 214 CLR 118, 139 (McHugh J, citing SS Hontestroom v SS Sagaporack [1927] AC 37, 47). See also CSR Ltd v Della Maddalena (2006) 80 ALJR 458, 466 (Kirby J).
[80]Their Honours considered that, in all the circumstances of that case, it was open to the Master to make the finding that she did. Moreover, their Honours considered that ‘… because the primary version of the appellant was unproved … it remained necessary for the Master to consider such alternative inferences as were available to her in the evidence.’: Suvaal (2003) 77 ALJR 1449, 1463. Contrary to the majority, their Honours considered that there was no procedural unfairness to the council and that, essentially, the issue of potholes being the cause of the accident was always in play in the trial.
[81] Suvaal (2003) 77 ALJR 1449, 1462.

Reversal of onus

It was also argued for Alcoa (under cover of ground 4) that his Honour’s decision as to the existence of the protrusion was vitiated because, by holding that neither the evidence of the drawings of the cooling cabinet nor the evidence of Alcoa’s officers excluded the possibility of a protrusion at the relevant date, his Honour impermissibly imposed a legal burden or onus on Alcoa to disprove to ‘a high degree of confidence’ the existence of the alleged hazardous protrusion that he found to exist in the work area. In any event, it was said, this placed an impermissibly inflated burden of non-persuasion on Alcoa.

In my view, however, this complaint misconceives what his Honour effectively said, namely, that, on weighing the ‘competing evidence’, that of Alcoa did not rebut the evidence that established to his Honour’s satisfaction that there was a realistic likelihood that the protrusion was caused by cutting and/or welding work by or on behalf of Alcoa. Once his Honour embarked upon an analysis of the evidence going to the likely source of the protrusion, he was entitled to consider whether Alcoa’s evidence was inconsistent with the existence of the protrusion and, in making the impugned statement, he did no more than that, and he was entitled to draw the conclusion that the evidence demonstrated ‘a real possibility’ that the protrusion existed because of the process in which Alcoa engaged of addressing ongoing corrosion.

Negligence finding against Alcoa

In the context of attacking his Honour’s finding of the existence of a protrusion, Alcoa also contended that his Honour erred in concluding that it breached its duty to Husson. It seems to me that if one accepts that there was a reasonable likelihood that the protrusion existed at the place of the accident, then, in the circumstances, it almost follows as a matter of course that Alcoa was negligent, given that the mill was under its control and supervision and that any work carried out at the plant was done by it or on its behalf. Thus, for example, any welding and patching on the cooling cabinet frame could only have been carried out pursuant to a Alcoa ‘hot work permit’, without which access could not have been gained to the area for the purpose of carrying out welding. Importantly, his Honour was entitled to find, as he did, that Alcoa knew or ought reasonably to have known of the protrusion given that, on his finding, it was probably caused by welding or patching and that it was its responsibility to take reasonable steps to ensure that such work had been carried out properly so as not to leave a protrusion, particularly since it was present in the confined space where Alcoa must, or should have, known that Husson or a person in his position would be working.

I would also reject Alcoa ’s claim that his Honour erred in not concluding that Alcoa was entitled to delegate to Keppel the obligation to assess the safety of the work area prior to the accident given that the contract between the parties requires Keppel to adopt safe work practices and report any hazard to Alcoa. His Honour considered, rightly, I think, that Alcoa was not absolved from liability to Husson by reason of its contract with Keppel having regard principally to the following matters:

(a) In the circumstances, the protrusion was an unusual danger.
(b)There was no evidence that the protrusion was present when Keppel carried out work in the area on previous occasions or that Alcoa alerted Keppel to it.
(c)The protrusion was not part of the machinery that was being serviced by Keppel on the date in question.

(d) The protrusion was located in a relatively concealed position.
(e)The ram was located in a confined space such that it was reasonably foreseeable that a workman engaged in removing the ram might back out of the confined space and into the entry area to the cooling cabinet.
(f)It was established procedure for Husson to remove the ram in the way he did.

Furthermore, as has been mentioned, his Honour considered that Alcoa did not discharge its duty of care as occupier of the premises to Husson as required by s 14B of the Wrongs Act. In all the circumstances, said his Honour, the principles identified in Papatonakis v Australian Telecommunications Commission[82] did not assist Alcoa. This was so because the machines which Keppel was contracted to maintain did not contain the protrusion. The contractual arrangement between Alcoa and Keppel envisaged that Alcoa would retain overall operational control of the mill including the cooling cabinet. There was no evidence that servants or agents of Keppel knew of the hazard prior to the accident and, since the hazard assessment process sought to be implemented by Alcoa and Keppel was not such as to give rise to the reasonable expectation that Keppel would necessarily identify the hazard constituted by the protrusion before Husson commenced the job or that Husson would necessarily identify it during the course of his job, the liability for the accident rested with Alcoa.
[82](1985) 156 CLR 7, 30 (Brennan and Dawson JJ).

As I have said, I consider that his Honour’s reasons well justify his conclusion that Alcoa was not entitled to discharge its obligations to Husson by reason of its contractual relationship with Keppel. A principal consideration was, I think, that the defect in the premises went beyond the kind which Keppel was accustomed to meeting and against which it was accustomed to safeguard.

In the circumstances, I would reject Alcoa ’s grounds of appeal that relate to the first issue as identified by its counsel.

Second issue – apportionment of liability

The second issue concerned, as has been noted, Alcoa ’s claim that his Honour erred in a number of respects in apportioning liability as between it and Keppel. It was first contended that the finding that Alcoa was 80 per cent liable for Husson’s injuries was against the weight of the evidence. It was pointed out that Keppel, as Husson’s employer, owed him at the relevant time a non-delegable duty to take reasonable care to avoid exposing him to unnecessary risks of injury. Such a non-delegable duty of care towards Husson did not apply, it was said, to Alcoa as occupier in the circumstances of this case. It was claimed that this was not properly considered by his Honour who found that the principal cause of Husson’s injury was a breach of duty to him by Alcoa.

I consider, however, that it was well open to his Honour to apportion the liability for Husson’s injury as he did. His Honour was entitled to find that Alcoa was principally culpable for the accident and that the principal cause of the injury was its breach of its duty to him as occupier of the premises, particularly given the findings that the protrusion was effectively caused by Alcoa, that it was of a kind that would ordinarily not be anticipated by Keppel, and that Alcoa gave no warning in respect of it. Moreover, Alcoa had total control of access to the work place and the work carried out within it insofar as it related to existing corrosion and otherwise. Moreover, the apportionment involved his Honour in ‘matters of relative emphasis, proportion and value judgment’[83] and no plain error in his Honour’s judgment in that regard has been demonstrated.
[83]Esso Australia Ltd v Victorian Workcover Authority (2000) 1 VR 246, 247 (Winneke P).

It was next said for Alcoa that, in making the apportionment, his Honour failed to make a comparison of the culpability of the parties and the degree of their respective departures from the standard of care to which each should have adhered. Instead, it was said, in making the apportionment his Honour concentrated solely on the issue of causation, thereby making the same error as that which was said to exist at first instance in Moore v Scolaro’s Concrete Constructions Pty Ltd (in liq).[84] In that case Callaway JA characterised the division by the trial judge of liability for the plaintiff’s injuries as between the defendants as being ‘driven by causation’.[85] In my view, it would not be correct so to characterise his Honour’s apportionment of liability in this case.
[84][2004] VSCA 152.
[85]Ibid [15].

The approach to be adopted in making an apportionment between the parties of their respective share in responsibility for the injury is conveniently summarised in Podrebersek v Australian Iron & Steel Pty Ltd[86] and Liftronic Pty Ltd v Unver.[87] It requires a comparison both of culpability and the relative importance of the acts of the parties in causing the injury, requiring the whole of the relevant conduct of each of the negligent parties to be subject to comparative examination. The tasks involve matters of proportion, balance and relative emphasis[88] and are, in this regard, similar to the exercise of a broad discretion.[89]
[86](1985) 59 ALJR 492, 493-4 (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ).
[87](2001) 75 ALJR 867, 868 (Gleeson CJ). See also Lu v Transport Accident Commission [2003] VSCA 195, [10] (Callaway JA).
[88]See Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, 493-4.
[89]See Moore v Scolaro’s Concrete Constructions Pty Ltd (in liq) [2004] VSCA 152, [8]-[9] (Callaway JA); Kingswood Golf Club Ltd v Smith [2005] VSCA 224, [25] (Callaway JA).

It is true that in expressing his conclusion on the question of apportionment the learned trial judge did so in terms of the ‘principal cause’ of the injury, that being Alcoa ’s breach of its duty towards Husson. But, fairly read, the relevant paragraphs of his Honour’s reasons that precede this conclusion make it plain that he did not fall into the error for which Alcoa contends. As I have noted, the task of apportionment involves a comparison both of culpability and the relative importance of the acts of the party causing the damage. In a case such as the present there is some merger or overlap of the questions of culpability and importance of the wrongful acts to the injury but it is apparent, nevertheless, as I have said, from his Honour’s comprehensive reasons that he considered and duly weighed both factors in coming to his impugned conclusion. In the circumstances, I would dismiss this claim.

It was further asserted (under cover of ground 28) that his Honour failed to give sufficient reasons for the apportionment, and for that reason his decision as to that is vitiated. That ground makes like assertions in respect of other findings of his Honour and I deal with these claims later in these reasons.

Third issue – contributory negligence

As I have indicated, the third issue concerns his Honour’s finding that there was no contributory negligence on the part of Husson. It was Alcoa’s case in this regard that his Honour erred in finding that no contributory negligence had been established on the part of Husson. In the relevant paragraph of his reasons his Honour concluded that ‘having regard to the facts as I have found them, no contributory negligence has been established on the part of [Husson]’. As Alcoa pointed out at trial, Keppel did not submit that there was contributory negligence on the part of Husson, although Alcoa maintained that there was such negligence. Alcoa claimed that the evidence established that Husson was an experienced maintenance rigger who had worked in the area in question for many years and that he also had a responsibility to carry out a hazard inspection in the work area prior to commencement of his task. It was said that if such an inspection had been properly performed by Husson this ought to have disclosed to him the alleged protrusion such as to enable him either to avoid it or report it and have it removed before embarking on his task. Thus, it was said, there was no proper basis on which his Honour could have concluded that there was no contributory negligence by Husson.

But, as has already been mentioned, his Honour effectively found that Alcoa was responsible for the protrusion, that it was a ‘hidden danger’, that it knew or might reasonably have known of its existence, that the protrusion was in a confined, badly lit space in which Husson was required to work, that it was reasonable for Husson to back out of the space as he did, that the protrusion was of a kind that would not be anticipated by Keppel, that no warning was given by Alcoa in respect of it, that Alcoa effectively acknowledged that it was expected to conduct an assessment of the area in question to evaluate its safety for someone in Husson’s position and that Keppel and, thus, Husson were involved in mechanical maintenance not the maintenance of the frame of the machine. Given those findings, I consider that it was open to his Honour to conclude that there was no contributory negligence by Husson notwithstanding his experience as a maintenance rigger and his responsibility to carry out a hazard inspection prior to undertaking his task. Consequently, I would reject the claim that it was not open to his Honour to conclude on the evidence that there was no contributory negligence by Husson.

Failure to give reasons

As has been noted,[90] Alcoa alleged under cover of ground 28 that his Honour failed to give adequate reasons in respect of three conclusions, namely:
[90]At [88] above.

(a)the principal cause of Husson’s injury was breach by Alcoa of its duty towards him;

(b) the proper apportionment is 80/20 as against Alcoa;
(c) there was no contributory negligence on the part of Husson.

More particularly, it was said that the learned judge failed to refer sufficiently to the relevant evidence or provide an adequate explanation of the process of reasoning that led him to the impugned findings.

I would reject this contention. It is plain enough that whether the reasons given by a judicial officer for a decision are adequate depends on the circumstances of the particular case. This topic has attracted a considerable number of observations in recent times by members of this Court and its predecessor.[91] But as I read those cases, none seeks to impose on the trial judge an obligation in this regard beyond requiring that it be apparent from the whole of the reasons by what reasoning process he or she has reached the impugned decision. Thus, the judge should set out in the reasons the relevant evidence and findings of fact, as well as the principles of law that he or she considers relevant, and do so in the context of making apparent – expressly or by implication[92] – the process of reasoning that led to the impugned conclusion such that the parties and the appellate court can determine from the reasons whether there is relevant error in the decision.[93] This would ordinarily require the judge to deal with the key elements of a party’s case and make plain why critical evidence, or submissions of law, have been rejected or accepted. These requirements, which can often be satisfied by relatively short reasons, are but examples of the rule that the basis of the impugned decision must be made apparent. But it must also be borne in mind that some issues, such as the credibility of a witness or where value judgment is called for, do not readily admit of explicit reasoning, at least of any length.[94] Similarly, in general, matters that are obvious need not be stated explicitly.
[91]It is not necessary to state here exhaustively all the cases where this matter was recently considered. I refer, by way of example, to Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18-19 (Gray J); Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No.2) (2002) 6 VR 1, 31-4, 43-5; Hunter v Transport Accident Commission [2005] VSCA 1, [21] (Nettle JA); Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, [38] (Ashley JA); InterTransport International Private Ltd v Donaldson [2005] VSCA 303, [18]-[19] (Chernov JA); Major Engineering Pty Ltd v Helios Electroheat Pty Ltd [2006] VSCA 107, [18]-[20] (Chernov JA); Hesse Blind Roller Company Pty Ltd v Hamitoski [2006] VSCA 121, [18]-[22] (Redlich JA); Metron Medical Australia Pty Ltd v Windahl [2007] VSCA 40, [69] (Bongiorno AJA).
[92]Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 19 (Gray J).
[93]See, eg, Cropp v Transport Accident Commission [1998] 3 VR 357, 376 (Charles JA); Garrett v Nicholson (1999) 21 WAR 226, 248 (Owen J).
[94]Nichols v Robinson [2001] VSCA 11, [14]-[16] (Winneke P).

In the present case, although his Honour’s impugned conclusions are briefly expressed, as I have indicated, it is obvious that they are based on his analysis and findings that are set out in the immediately preceding 20 or so pages of his reasons, most of which I have already mentioned and there is no need to repeat them. Given this analysis, it is obvious how his Honour reasoned to the conclusion that the principal cause of Husson’s injury was Alcoa’s breach of duty to him. The attribution of the figure of 80 per cent as reflecting Alcoa’s proportion of the liability was essentially the product of his Honour’s value judgment, the basis of which I have already analysed. Such analysis also makes plain the basis on which his Honour concluded that Husson was not contributorily negligent. In the circumstances, I consider that there is no merit in Alcoa ’s claim that his Honour failed to provide adequate reasons.

Conclusion

For the above reasons, I would dismiss this appeal.

NEAVE JA:

I have had the advantage of reading the draft reasons for judgment of Maxwell ACJ and Chernov JA. I gratefully adopt the summary of issues and evidence and the analysis of counsel’s submissions, set out in Chernov JA’s reasons. I agree with Chernov JA that the appeal should be dismissed, for the reasons that he gives. I wish only to make some brief comments on the central issue in this case —whether it was open to the trial judge to find that Mr Husson’s back injury was caused by the negligence of Alcoa and Keppel.

His Honour found that Mr Husson suffered a back injury as the result of backing into a piece of steel protruding from one of the columns which supported the cooling conveyor cabinet. His Honour found that Mr Husson’s evidence on the existence of the protrusion was credible. His evidence that he had been injured by striking his back on the protrusion was supported by the evidence of other witnesses, including Mr Husson’s wife, who testified that the plaintiff had told her on the day of the accident that he had ‘whacked his back’, that it was very sore, that she had seen a red mark on it and that it was painful when she massaged it.

His Honour rejected Mr Husson’s evidence that the piece of metal on which he hit his back must have been caused by the removal of cross-bracing, which had been cut off so as to leave a protruding piece of metal. However, he found that Alcoa was negligent because it knew or should have known of the protrusion before the accident occurred and that it had breached its duty as an occupier under s 14B of the Wrongs Act1958. Keppel had breached the duty of care it owed the plaintiff to provide him with a safe system of work. Both defendants were therefore liable to pay damages to the plaintiff for the injury he suffered.

In my opinion, once his Honour found that Mr Husson’s injury was caused by a protruding piece of metal there was sufficient evidence to enable him to infer that the injury was caused by the defendants’ negligence.

Counsel for Alcoa submitted that the trial judge’s finding that the protrusion was caused by corrosion or consequent patching of corrosion, was based on impermissible speculation. It was said that the case came within the principle applied by the High Court in Suvaalv Cessnock City Council.[95] In that case the majority of the High Court (Gleeson CJ, Heydon and Callinan JJ) held that a decision of a Master awarding damages to Suvaal against the defendant council was wrong, because it had been based on a hypotheses about the cause of a bicycle accident which had not been put forward by the plaintiff at the trial and which could not be inferred from the evidence before the court.
[95](2003) 77 ALJR 1449.

I do not accept counsel’s submission that his Honour’s finding that Mr Husson’s injury was caused by the combined negligence of Alcoa and Keppel was based on impermissible speculation.

His Honour found that:

… on the balance of probabilities [the plaintiff] was in fact injured when he backed into a protrusion on one of the end columns.[96]

and that:
The fact that the plaintiff gave evidence as to a belief as to the origin of the protrusion, which I do not accept as probable, does not lead me to reject the fact of the protrusion.
Likewise, although at some points the plaintiff’s evidence may have over-emphasised (or alternatively been unclear as to) the jaggedness of the protrusion, I am not satisfied that this should lead to the rejection of his fundamental complaint of a protrusion which jutted out some 80 to 100 millimetres from an end column at the level of his lower back.[97]

[96]Husson v Keppel Prince Engineering Pty Ltd & Anor [2006] VSC 412, [53].

[97]Ibid [55]-[56].

The judge’s conclusion that Mr Husson’s injury was caused by the defendants’ negligence was not based on a finding that the protrusion was caused by corrosion or the steps taken to repair corrosion. In his reasons, the learned trial judge said that:

…the evidence demonstrated a real possibility that the process of addressing ongoing corrosion of the cooling cabinet did produce a protrusion:
·as the result of the removal of the cross-beam and associated patching; or
·as the result of cutting and/or welding associated with the replacement of side panels; or
·as the result of patching of the end column itself as the result of corrosion.[98]

[98]Ibid [49].

His Honour’s statement that ‘the evidence demonstrated a real possibility that the process of addressing ongoing corrosion of the cooling cabinet did produce a protrusion’ was intended to address the defendants’ claim that there was no protrusion and was not a finding about the way that the protrusion came into existence. The trial judge would not have made the fundamental error of assuming that ‘a real possibility’ was sufficient to satisfy the appellant’s burden of proving on the balance of probabilities that his injury was caused by the defendants’ negligence. The fact that this comment related to the existence of the protrusion is made clear in paragraph 52 of his Honour’s reasons which said that:

This general context, taken with the specific possibilities I have identified, leads to the conclusion that the plaintiff’s description of a protrusion is not inherently improbable.[99]

[99]Ibid [52].

Once his Honour found that Mr Husson’s injury was caused by a protruding piece of metal there was, in my view, sufficient evidence to enable him to infer that the injury was caused by the defendants’ negligence. In the case of Alcoa, the relevant negligence was the failure to remove the protrusion or warn the plaintiff of its presence, in circumstances where it was reasonably foreseeable that a person moving backwards in the limited space under the conveyor was likely to hit himself on it. His Honour found that Alcoa knew or ought to have known of the protrusion prior to the plaintiff’s injury:

·because such protrusion was on the balance of probabilities caused by Alcoa’s servants or agents;
·because of the continuing work of its employees in the vicinity of the cooling cabinet (including the periodic removal of fallen ingots from beneath the conveyer in the cooling cabinet);
·because of the improbability that a protrusion of the type in issue could be created without the undertaking of other work with the authority of supervising staff and/or a hot work permit.[100]

[100]Ibid [64]. Hot work permits were issued by Alcoa to authorise oxyacetylene welding on the cooling cabinet frame.

Having found that the plaintiff was injured by hitting his back on a protrusion, it was not necessary for his Honour to make a finding about the precise mechanism by which the protrusion was created, in order to hold that Alcoa breached its duty by failing to detect its presence or to warn the plaintiff that it was there. His Honour’s finding that Alcoa knew or ought to have known of the protrusion was sufficient to demonstrate a breach of the duty of care which, as an occupier, it owed the plaintiff, even if the protrusion was not created by corrosion or patching of corrosion. Nor did his Honour have to determine precisely when the protrusion was created, in order to hold that Keppel had breached its duty to provide Mr Husson with a safe system of work by sending him into a confined space in which he was likely to come into contact with it.

Suvaal was a decision based on particular facts. The present case is clearly distinguishable. In that case the appellant, who became a quadriplegic after his bicycle veered onto the wrong side of the road and then off the road into a gully, sought damages from the nominal defendant and the council. As against the nominal defendant the appellant pleaded that his accident occurred when an unidentified vehicle forced him into a pothole on the wrong side of the road, where the handlebar assembly of the bicycle broke and he crashed into the gully. The particulars of negligence in the appellant’s case against the council alleged that the accident was caused by the council’s negligence in failing to adequately maintain the edges of the road alongside the bitumen surface.

The appellant’s bicycle was 8–10 years old and the handle bars had been bought separately from the frame. He maintained the bicycle, had adjusted its steering system and had dismantled the steering assembly 3 to 6 months before the accident. There was a conflict in the expert evidence given on behalf of the appellant and the respondent at the trial as to the likelihood of the handlebars collapsing because of encountering potholes, and as to whether the collapse might have occurred while the appellant was riding on the main roadway. In response to cross-examination by counsel for the nominal defendant the appellant said that there was no explanation for the accident other than the presence of the unidentified vehicle, which had forced him on to the rough edge of the road.

The Master who tried the case found that no motor vehicle was involved in the accident and entered a verdict for the nominal defendant. She found that the accident was caused by the appellant’s loss of concentration, as the result of which his bicycle veered to the wrong side of the road where it struck potholes, the stem of the handlebars fractured and the bicycle crashed. Although she found the appellant’s negligent loss of concentration had contributed to the accident, she held that the council was liable in negligence to the appellant.

The majority of the High Court (Gleeson CJ, Heydon and Callinan JJ) held that once the Master rejected Suvaal’s evidence that he was forced off the road into the pothole by an unidentified vehicle, there was no evidentiary basis for the finding that the accident was caused by the council’s negligence in failing to maintain the edge of the road. Callinan J said:

It was not open to the Master to find that a momentary lapse in concentration caused the appellant to deviate from the bitumen surface and into the potholes. That was something that the appellant had not claimed, and which as between him and the respondent, the latter was not required to answer. Even the appellant’s first version of the accident, the one that he gave to the police officer at the scene, made no reference to a momentary or any lapse in attention. It was not pleaded in par 10 of the statement of claim, and was not even submitted to be so by the other defendant, the Nominal Defendant. It was, in short, not an issue in the case, and certainly was not an issue between the appellant and the respondent. As an operative cause, momentary inattention seems to have been entirely the invention of the Master.
…
The appellant argued that the submission of the other defendant, that the respondent had negligently allowed potholes in the shoulders of the roadway to develop, put the respondent “in the frame” and argued that the Master’s reasoning was within that submission. That is not the position so far as the issues between the appellant and the respondent were concerned. The frame upon which the appellant was, and remained exclusively focussed, always had in it the driver of an unidentified motor vehicle as the cause of the accident.[101]

[101]Suvaal v Cessnock City Council (2003) 77 ALJR 1449, 1474 -5.

Callinan J went on to explain that the finding by the Master ‘distorted the issues’ between the appellant and the respondent and was inconsistent with the requirements of procedural unfairness.

In their dissenting judgment, McHugh and Kirby JJ identified four hypotheses as to the cause of the accident which injured Suvaal, which they said were ‘in play’[102] at the trial. The first hypothesis was that the bicycle frame was weakened by the repairs Suvaal made to it, as a result of which it collapsed while he was riding on the normal road surface. The second was that he negligently rode off the road and the bicycle collapsed when it came into contact with the potholes. Suvaal would not have been entitled to damages against the council on the bases of either of these hypotheses.[103] Under the other two hypotheses, the accident had been partly caused by the council’s negligence; Suvaal had either been forced off the road by an unidentified vehicle, as a result of which he had ridden into the potholes and the bicycle had collapsed, or something caused him to leave the road surface (inferentially a temporary loss of concentration) and he hit the potholes, causing the bicycle frame to collapse (the ‘pothole hypotheses’).
[102]Ibid 1468.
[103]In theory the second hypotheses could have provided the basis for a finding of negligence against the council and contributory negligence against Suvaal. This was not pursued, presumably because Suvaal was an experienced cyclist who was very familiar with the road and had never previously ridden off into a pothole.

McHugh and Kirby JJ held that there was a sufficient evidentiary basis for the Master to accept the pothole hypotheses and that it had not been procedurally unfair to the council to do so, because the parties were fully aware of it at the trial.[104]
[104]Suvaal v Cessnock City Council (2003) 77 ALJR 1449, 1468.

In Suvaal the plaintiff was required to prove, on the balance of probabilities that his injury was caused wholly or partly by the council’s negligence. But it was an equally tenable hypothesis that Mr Suvaal’s injury was caused solely by his own negligence in driving off the road. The majority held that there was insufficient evidence before the court to support the pothole hypotheses.

In the present case, by contrast, his Honour was satisfied, on the balance of probabilities that the plaintiff’s injury was caused by him backing into a piece of metal protruding from the frame. There was no suggestion that he might have injured his back in some other way. His Honour found that the plaintiff was not guilty of contributory negligence—Mr Husson did not create the protrusion[105] and was unaware of its presence. As I have said, it was the presence of the protrusion, rather than the precise manner in which it came into existence, that provided the basis for his Honour’s finding that the defendants were negligent.
[105]Cf Anchor Products Ltd v Hedges (1966) 11 5 CLR 493, where one possible cause of the accident was that the collapse of the pile of boxes which injured the plaintiff was his own negligence.

In Anchor Products Ltd v Hedges Windeyer J said that:

If the precise cause of an occurrence be fully revealed by evidence which is accepted, the occurrence ceases to speak for itself. The question then becomes whether, having regard to the now known cause, the defendant was negligent. It matters not in such a case whether the cause be established by evidence led for the plaintiff or for the defendant. If, however, the evidence given does not establish to the satisfaction of the jury, or the judge of the fact, what was the cause of an occurrence which could speak for itself, then it can continue to do so, although if the evidence given has raised doubts it may now speak less loudly and less convincingly than before.[106]

[106](1966) 115 CLR 493, 497–8. See also Doonan v Beecham (1953) 87 CLR 346.

It follows that although the judge rejected Mr Husson’s explanation of the cause of the protrusion it remained open to him to infer that Mr Husson was injured as a result of the defendants’ negligence.

As I have said, the majority in Suvaal considered that the Master’s finding had denied procedural fairness to the defendant council. Callinan J said that:

The finding by the Master distorted the issues joined between the appellant and the respondent. The latter was not to know, or indeed even to suspect, that a deviation as a result of momentary inattention might be found as the cause of the accident. If it had, then it would no doubt have cross-examined about it. The appellant having asserted and reasserted one cause only of the accident, the respondent was not bound to go on an excursion in cross-examination to identify and refute a version not even hinted at by the appellant. The finding by the Master of a version not advanced by the appellant also inevitably affected the resolution of the issue of contributory negligence on the part of the appellant. If there were no unidentified motor vehicle and he was only momentarily inattentive, why was it that his deviation was so great as to take him to the side of the roadway? Was he not aware of the potholes there? Why did he not correct the deviation before he reached them? Was he not aware of the final fracture of the steering apparatus? What part did it play in his fall? The appellant had no opportunity of exploring these crucial matters in cross-examination, or of making submissions about them and their relevance to an accident in which no car was involved and which was precipitated by a momentary lapse in concentration. The presence of the potholes on the edges of the road only becomes significant if the appellant, as he alleged, was brushed into them. A finding that he was not, but that a momentary lapse in concentration took him into them, is a quite different matter. It gives rise to a question not addressed by anyone at the trial, indeed, not even by the Master, and that is, how it could reasonably be expected that the respondent might and should guard against momentary inattention by eliminating potholes of which the appellant was well aware, and which were on the edges of a roadway, the characteristics of which were well known to him. Had the respondent contemplated the case found against it, no doubt it would also have wished to make different submissions with respect to the fragility of the bicycle and the part played by that in this changed scenario of the accident.[107]

[107]Suvaal v Cessnock City Council (2003) 77 ALJR 1449, 1475.

In the present case, the defendants were not denied procedural fairness. In Anchor Products Ltd v Hedges Windeyer J said that:

No doubt if a plaintiff builds his case entirely upon allegations in the pleadings of particular acts or omissions on the part of the defendant, he may be confined to the issue he has thus chosen, unless at the trial he be allowed to amend.[108]

[108](1966) 115 CLR 493, 499.

But Mr Husson’s pleadings did not rely solely on the allegation that the protrusion was caused by the negligent cutting of a cross-brace. His pleadings made the general allegation that ‘the said accident occurred as a result of the negligence of [Keppel], its servants or agents, and [Alcoa], its servants and agents.’

The particulars of negligence alleged against Keppel included failing to instruct Mr Husson properly, failing to provide adequate supervision, assistance or equipment, failing to carry out adequate risk assessments or take heed of complaints, failing to inspect work conditions, and allowing Mr Husson to work in a cramped, confined and dangerous position.

The particulars of Alcoa’s negligence included cutting off steel objects while leaving protrusions, but they also included failing to warn of the existence and/or danger of the protruding steel, requiring or permitting the plaintiff to work in a cramped, confined and dangerous position, failing to warn of or remove the protruding steel, failing to employ competent and well trained employees, failing to instruct employees properly, failing to remove or permitting the protruding steel to remain, and failing to carry out adequate risk assessments.

Mr Husson consistently asserted that his back injury was caused by backing into a piece of protruding metal. Both defendants had ample opportunity to cross-examine Mr Husson about the circumstances of the accident and to adduce evidence that there had not been a piece of metal protruding from the frame which he backed into while carrying the ram. In light of the way that Mr Husson’s case was pleaded, his Honour’s findings could not possibly have taken the appellant by surprise.

For these reasons, as well as those given by Chernov JA, I would dismiss the appeal.

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[2007] VSCA 209

11 October 2007