Ford v Elmore Haulage; VWA v Snowy Monaro
[2019] VSC 58
•13 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
CIVIL CIRCUIT LIST
S CI 2018 01617
| DAVID FORD | Plaintiff |
| v | |
| ELMORE HAULAGE PTY LTD (trading as O’SULLIVAN TRANSPORT) (ABN 51 006 201 252) | First Defendant |
| and | |
| SNOWY MONARO REGIONAL COUNCIL | Second Defendant |
and
S ECI 2018 01628
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| SNOWY MONARO REGIONAL COUNCIL (ABN 72 906 802 034) | Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20, 21, 22, 23, 26, 27, 28 November 2018 |
DATE OF JUDGMENT: | 13 February 2019 |
CASE MAY BE CITED AS: | Ford v Elmore Haulage & Anor; VWA v Snowy Monaro |
MEDIUM NEUTRAL CITATION: | [2019] VSC 58 |
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NEGLIGENCE – Workplace injury – Plaintiff struck when fitting blew from the end of a hose at a truck wash bay – Whether operator of truck wash bay breached its duty of care – Whether risk of harm not insignificant – Whether a reasonable operator would have taken precautions – No contributory negligence found – Contribution between truck wash bay operator and employer – Civil Liability Act 2002 (NSW) – Work Health and Safety Regulation 2011 (NSW) – Southern Colour (Vic) Pty Ltd v Parr & Anor [2017] VSCA 301 (20 October 2017) – Peter Steven Benic v State of New South Wales [2010] NSWSC 1039 (30 November 2010) – Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 (29 September 2010) – Zraika v Walsh [2015] NSWSC 485 (30 April 2015) – Zealley v Liquorland (Aust) Pty Ltd & Anor [2015] VSC 62 (5 March 2015) – Papadopoulos v MC Labour Hire Services Pty Ltd (No 4) (2009) 24 VR 655.
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APPEARANCES: | Counsel | Solicitors |
In Proceeding S CI 2018 01617: | ||
| For the Plaintiff | J Brett QC and M Waugh | Harris Lieberman |
| For the First Defendant | P Scanlon QC and B Myers | Lander & Rogers |
| For the Second Defendant | A Magee QC and S Glascott | Mills Oakley |
In Proceeding S ECI 2018 01628: | ||
| For the Plaintiff (VWA) | R Stanley | IDP Lawyers |
| For the Defendant (Snowy Monaro Council) | A Magee QC and S Glascott | Mills Oakley |
HIS HONOUR:
Mr Ford worked for Elmore Haulage Pty Ltd (‘Elmore Haulage’) driving a B-Double transporting sheep and cattle between farms, saleyards and abattoirs across South Australia, Victoria, New South Wales and Queensland. Wash bay facilities were provided at saleyards for drivers to wash animal waste from their stock trailers. In March 2014 Mr Ford was using the wash bay facilities at the Cooma saleyards when the fittings at the end of his hose blew off, striking the left side of his face, causing the loss of his left eye and other injuries. He alleged that a new wash bay pump installed in February 2014 produced increased pressure which was a cause of the incident. The saleyards were owned and operated by Snowy Monaro Regional Council (‘Snowy Monaro’).
Mr Ford brought proceedings claiming damages for his injuries alleging there was negligence and breach of statutory duty by Elmore Haulage and Snowy Monaro which was a cause of the incident (‘the principal proceeding’).
Although the incident happened in New South Wales, Mr Ford’s employment with Elmore Haulage is connected to Victoria, and he is entitled to compensation for the injury under the Accident Compensation Act 1985 (Vic).[1] The Victorian WorkCover Authority (‘the Authority’) brought proceedings claiming indemnity from Snowy Monaro in accordance with s 138 of that act for compensation which has or may be paid to Mr Ford (‘the recovery proceeding’).
[1]Sections 80 and 82.
Before the trial commenced the parties in both proceedings agreed quantum. In the principal proceeding Elmore Haulage admitted duty and breach, and withdrew the contributory negligence defence. Allegations of negligence and breach of statutory duty by Snowy Monaro, contributory negligence alleged against Mr Ford by Snowy Monaro, and contribution by Elmore Haulage and Snowy Monaro to the incident and to Mr Ford’s injuries remained to be determined. The issues in the case are summarised as follows:
Factual dispute
(a)Was there an increase in water pressure developed by the new wash bay pump which was a cause of the incident?
Negligence
(b)Did Snowy Monaro breach a duty it owed to Mr Ford by failing to take one or more of the following precautions:
(i)Provide hoses and fittings which matched the pressure developed by the new pump and were safe for use with it, or, alternatively, inform transport companies and drivers what hoses and fittings they should use?
(ii)Warn wash bay users of the pressure developed by the new pump?
(iii)Repair a broken wash bay tap?
(iv)Reduce the pressure developed by the wash bay pump?
(v)Ensure the Cooma saleyards wash bay complied with Safe Work Australia’s Guide for Managing Risks from High Pressure Water Jetting?
If yes, was the breach a cause of the incident?
Breach of statutory duty
(c)Did Snowy Monaro breach pt 3.1 of the Work Health and Safety Regulation 2011 (NSW) by failing to eliminate or minimise, so far as was reasonably practicable, risks to health and safety to wash bay users, including Mr Ford?
Contributory negligence
(d)Was Mr Ford negligent in failing to maintain the hose and fittings which he used?
Contribution
(e)What was the relative contribution to the incident of each liable party?
It was agreed that the two proceedings be heard concurrently, and that evidence given in one proceeding stand as evidence in the other. This is the judgment in the two proceedings.
Evidence was given by Mr Ford, and by three engineering experts, Mr Waddell for Mr Ford, Dr Culvenor for the Authority and Dr Casey for Snowy Monaro.
Choice of law
The parties agree the substantive law of New South Wales applies to the claims in negligence and breach of statutory duty against Snowy Monaro. Negligence is to be determined in accordance with pt 1A of the Civil Liability Act 2002 (NSW). The plaintiff in each proceeding alleges breach of duties owed by Snowy Monaro under ch 3, pt 3.1 of the Work Health and Safety Regulation 2011 (NSW).
Background
Mr Ford worked as a driver of livestock transports from 1993. For most of that time he drove a B-Double transporting sheep and cattle.
It was necessary for drivers of livestock transports to wash animal waste from their trailers regularly to prevent spread of disease, and discolouration and damage to wool when sheep were carried. Wash bay facilities were provided at saleyards for that purpose. Most wash bays were operated through the Avdata system, which allowed the saleyards operator to charge livestock transport companies per minute of operation. Drivers were provided with a magnetic key, which activated the wash bay pump, and resulted in a record of the drivers’ use of the system.
Mr Ford said about three-quarters of the saleyards he visited did not provide hoses at the wash bays for use by drivers. It was necessary for drivers to have their own hose in order to use the wash bay facilities at saleyards where no hose was provided. He said when he started driving livestock transports he was not provided with a hose, so he bought his own, and carried it with him in a box located at the side of one of the trailers. Mr Ford was not given any instruction about the hose or fittings he should use, but based his purchase on what other drivers had.
On 1 January 2012 Mr Ford transferred from a company where he worked as an owner driver, or ‘tow operator’, to Elmore Haulage. When he transferred, Elmore Haulage purchased his prime mover and equipment, including the hose and fittings, and he became an employee.
The hose
Mr Ford used a 30 metre hose with fittings on one end to attach to the saleyards tap, and a valve and nozzle on the other end to assist with the wash down process. The photograph below shows a short length of hose with exactly the same type of fittings used by Mr Ford at the time of the incident (exhibit P1).
From the left the following items are seen in the photograph:
(a) brass connector used as a nozzle;
(b) black plastic connector;
(c) ball valve, operated by moving the handle in a 90 degree arc: perpendicular to the hose is the closed position (as shown), parallel to the hose is open;
(d) black plastic connector;
(e) blue hose with 32 mm internal diameter;
(f) silver clamps fixed in place over connectors at both ends of the hose; and
(g) black connector with fitting which can be screwed onto the saleyards tap.
A second photograph shows the nozzle, valve and connector removed from the hose. When assembled, the spherical part of the connector fitted inside the hose. The features which secured the connector to the hose were the tight fit within the hose, the two barbs (indicated with yellow arrows) which were intended to increase friction between the connector and the inside of the hose, and the clamp which compressed the hose over the connector. On the day of the incident the whole fitting shown in the photograph below blew from the end of the hose and struck the left side of Mr Ford’s face.
The Cooma saleyards (‘the Saleyards’)
Mr Ford had been going to the Saleyards for 20 years. A hose was not provided for drivers at the Saleyards.
The Saleyards pump was in a shed located alongside two wash bays. Next to the shed was a concrete tank which was the water source for the pump. Pipes ran underground from the pump to a tap at each wash bay. The pump shed was surrounded by a wire fence with a locked gate. Mr Ford and other drivers did not have access to the pump or the shed.
Wash bay 1 at the Saleyards was large enough to accommodate a B-Double, and was the wash bay used by Mr Ford. For many years up to the date of the incident, the tap servicing wash bay 1 was jammed open. This meant that when the pump was operating, the tap could not be closed to stop or regulate the flow of water.
Mr Ford’s wash down procedure
If he had sufficient time, Mr Ford would start by giving the stock crates ‘a good blast’ of water from the outside to help loosen the waste, and then get into the trailers to do the wash out. If he was pressed for time he would only wash the trailers from inside.
At other saleyards, when starting the wash down outside the truck, Mr Ford connected his hose to the wash bay tap, turned the tap off, opened the valve at the end of his hose, turned on the pump, and gradually opened the wash bay tap to allow water to flow. If he was pressed for time and was only washing inside the trailers, he placed the nozzle end of the hose inside the trailer with the valve open about 30 degrees, connected the hose to the tap, ensured the tap was off, turned the pump on, then gradually opened the tap. Mr Ford said in that circumstance he could see the hose stiffen as it filled with water, and could hear first air then water come out of the nozzle with the valve partly opened.
At the Saleyards, because the wash bay 1 tap was jammed open, it was necessary for Mr Ford to adopt a different procedure. If he was starting to wash from outside the trailer, he fully opened the valve and held that end of the hose when he turned on the pump so he could keep it under control as water flowed through the hose and out the nozzle. When he was only washing inside the trailers Mr Ford placed the nozzle end of the hose inside the trailer with the valve closed, then turned the pump on. He said he was worried that if he left the nozzle partly open, water rushing through after he turned on the pump could cause the end of the hose to flick around and knock the valve handle fully open, resulting in the end of the hose flying around. Mr Ford said that when he got into the trailer he would gradually open the valve to allow water to flow.
Replacement of the Saleyards wash bay pump
Up to February 2014, when only one wash bay was being used at the Saleyards, the flow of water was sufficient for drivers to wash out their trailers. Mr Ford said the water pressure ‘was all right if you’re there washing out just one truck’. However, if both taps were being used the water flow was not sufficient. Mr Ford said if two taps were being used at the same time ‘the pressure was terrible’, and it was better to wait until the other driver finished, because when the two bays were used at the same time it was just like using a garden hose, and if the waste was packed in on the trailers you had no chance of washing it out.
Drivers complained to Snowy Monaro that the water pressure at the Saleyards was insufficient for proper cleaning of trailers when both wash bays were used at the same time. On 27 February 2014 Snowy Monaro installed a new pump to service the Saleyards wash bays.
The incident
Mr Ford arrived at the Cooma abattoir with a load of cattle at about 10 pm on 26 March 2014. After unloading the cattle he slept in his truck at the Saleyards. The next day he was to load sheep from farms near Bombala, which he said was a time-consuming job. Mr Ford had to wash out his trailers before loading sheep. He said he did not wash the outside of the trailers first because he was under time pressure.
When Mr Ford got his hose out that morning he noticed the handle had come off the valve, and the nut which usually held it in position was missing. He fixed the valve in the closed position and put the handle in his pocket, intending to fit it in position to operate the valve when the time came. Mr Ford attached the hose to the tap at wash bay 1, and placed the nozzle end of the hose inside his first trailer.
The Avdata printout from 27 March 2014 records that Mr Ford started the pump at 8.11 am. Wash bay 2 was not being used. After activating the pump, Mr Ford opened the door of his truck cabin, threw his keys in the truck for safekeeping, walked alongside the first trailer and stepped in. He picked up the nozzle end of the hose in his left hand and had the valve handle in his right. He said there was an explosion, and the nozzle, valve and connector came off the hose and struck the left side of his face.
Mr Ford said he staggered around inside the trailer for a little while, went to the front of the truck and got a towel to try to stem the flow of blood, tried to look in a mirror to see what the damage was, then got out of the cabin and turned the pump off at 8.14 am.
Mr Ford recalled an earlier occasion when the valve blew out of his hose at either the Dubbo or Forbes saleyards. He said this happened a long time before the incident, and he was not sure if he was using the same hose and fittings. He said he was not near the end of the hose, that he heard the valve blow out, but did not see it happen. Little was made of this event by the parties. It was not explored in detail in evidence, and no significant reliance was placed on it in closing submissions.
Why did the incident happen?
The fittings exploded from the end of Mr Ford’s hose under pressure produced by the Saleyards pump.
Dr Culvenor said the incident was caused by a mismatch of the pressure in the system and the clamps used to secure the fittings in the hose. Mr Waddell said the black plastic connector which fitted inside the hose was also potentially relevant to the incident.
Snowy Monaro alleged Mr Ford’s failure to maintain the hose and fittings was a cause of the incident.
Maintenance of the hose and fittings
Mr Ford said when his hose deteriorated over time, or was damaged by being caught on the aluminium side of the crate, he would replace it. He said as the end of the hose became worn he would cut it away and re-attach the fittings to a fresh section of hose. Mr Ford said he occasionally checked and tightened the clamps. He described himself as being keen on safety. He said he had no reason not to trust his hose and clamps.
Mr Ford maintained, repaired and replaced the hose and fittings as necessary. I accept that he was safety-conscious and attentive to his equipment. Mr Ford was not challenged on the basis that his hose was old and worn, the hose and fittings poorly maintained, or the clamp not as tight as it could be. There is no evidence upon which I could conclude there was a lack of attention by Mr Ford to the maintenance of his equipment which was a cause of the incident.
The clamp and the connector
Mr Ford used a heavy duty clamp, which had a bolt that passed through two raised shoulders. As the bolt was turned the shoulders of the clamp were drawn together, the circumference of the clamp became smaller and it compressed the hose onto the black plastic connector. When the shoulders came fully together the clamp could not be tightened further. Dr Culvenor and Dr Casey said the clamp used by Mr Ford was the wrong size, because the shoulders came together before it was sufficiently compressing the hose on the connector.
Dr Casey also criticised the clamp because, he said, it was too wide. He said a worm drive clamp was more suitable because it was narrower, and would probably sit between the barbs on the connector.
Dr Casey said the heavy duty clamp used by Mr Ford was the strongest type of clamp available. He was concerned such a clamp would be capable of crushing the plastic connector.
Mr Waddell said it would have been better to use a metal connector, because the barbs in the plastic connector would have less ‘bite’ against the inside of the hose, and may deform under pressure.
Mr Ford said he had never had a problem with the black plastic connector. He said, with hindsight, he could see what Dr Culvenor was saying about the clamp being too big, but at the time he thought it was the right size, and it did compress the hose onto the connector. The clamp on exhibit P1 is the same size as the clamp used by Mr Ford at the time of the incident. With the clamp in place it appeared the hose was compressed over the connector. When the clamp was removed, the compression of the hose where it had been sitting was visible.
A worm drive clamp was tendered. It is lighter and narrower than the heavy duty clamp which Mr Ford used. Worm drive clamps operate by a screw gripping on ridges as it is turned to reduce the circumference and compress the hose on the connector. Mr Ford said, in his experience, once you got to a certain pressure the screw stopped gripping on the ridges and the clamp would not compress further. He said he thought you would get more pressure with the heavy duty clamp.
The heavy duty clamp used by Mr Ford did compress the hose on the connector. However, I accept Dr Culvenor’s and Dr Casey’s evidence, supported by results of tests they performed (see paragraphs [64]–[65]), that a clamp with a smaller circumference would have provided greater compression and a stronger join. Using a clamp which was too large was a cause of the incident.
I accept Dr Culvenor’s evidence that a heavy duty clamp would have been suitable if it was the right size. Dr Casey’s suggestion that a narrower worm drive clamp would fit between the barbs on the connector did not take account of the practical difficulty of positioning the clamp correctly on the hose when the connector barbs cannot be seen. Further, I accept Mr Ford’s evidence, supported by Dr Casey, that more pressure can be applied with a heavy duty clamp.
More aggressive barbs on a metal connector may have provided greater friction between it and the hose, and a stronger join. However, there is no evidence the black plastic connector deformed or failed in the incident or in any of the tests performed by the experts, or that it was a cause of the incident.
The pressure produced by the Saleyards wash bay pumps
Both the new and old pumps were centrifugal pumps in which a power source, in each case an electric motor, rotated impellers to provide water flow and pressure. Dr Casey explained that the pressure increase achieved by a centrifugal pump depends on the diameter of each impeller, the number of impellers, and how fast they are spinning. He said the flow rate is limited by the area around the periphery of each impeller. Impellers with a larger peripheral area can produce higher flow rates. This means that a pump can be designed and manufactured to suit the needs of the user in terms of pressure and flow rate.
The experts agreed that the new pump produced a higher flow rate than the old pump. This fitted with the experience of Mr Ford that the new pump produced sufficient water flow for both wash bays to be used at the same time. The flow rate is the amount of water travelling through the system. Dr Culvenor said that the user of the system wants it to deliver sufficient water flow for the purpose of washing waste from the truck in a flooding-type action. The same flow of water will come out the end of the hose faster if it goes through a smaller space such as a nozzle. Dr Culvenor said this greater velocity assists the user by providing a piercing action to discharge waste inside the stock crates.
The pressure produced by a pump is expressed in meters head or kPa (kilopascals). One hundred meters head is approximately 1000 kPa. For consistency, I will use kPa as the measure of pressure.
According to manufacturers’ specifications, which the experts found by internet search, the two pumps produced a similar maximum pressure. However, there are a number of reasons why this might not have been so. First, the old pump was in service for many years before being replaced in February 2014. There was evidence from which it could be inferred that the performance of the old pump had deteriorated in terms of both pressure and water flow. Second, Dr Casey said the capacity of a pump to increase pressure depends on the number of impellers installed. The number of impeller stages can be adjusted by the manufacturer depending on the requirements of the user. There was no evidence as to the number of impeller stages in either pump. Third, settings on each pump could be adjusted to regulate the pressure range in which the pump operated. No evidence was led as to the settings on the old pump until it was replaced, or the settings on the new pump after it was installed. I will return to each of these issues.
There is an important difference between pressure in the system when it is open and water is flowing, and pressure when the tap or valve is closed. The incident happened after Mr Ford turned the pump on, but before he opened the valve at the end of his hose to allow water to flow. Dr Casey said:
The highest pressure that can be achieved for a pump is when the flow is zero, or the pump is working against a closed valve (for example). In engineering, we call this the stagnation pressure. As the flow rate increases, the pump’s pressure drops.
When the incident happened the system, from the pump to the fittings at the end of Mr Ford’s hose, was under stagnation pressure.
Dr Culvenor explained that a pump is designed to overcome two kinds of pressure demand, first to lift water up to an elevation, and second to overcome friction within the system. In the case of the Saleyards, the demand created by the need to lift water was minimal because most work was done at the same level as the pump, and only a few metres of lift was required when a driver was working at the top level of the stock crates. The demand created by friction is influenced by the size of pipes and hoses which deliver the water from the pump to the outlet, and other features in the system which restrict flow, including valves, the tap and the nozzle. Larger pipes cause less friction. When a tap or valve is open and water is flowing, the pressure reduces from the pump to the nozzle as friction demand is overcome. Dr Culvenor said water does not need to be under pressure for the purpose of washing a truck. He said the pump needs to produce the right amount of pressure to overcome demand in the system created by lift and friction, and any excess pressure has no purpose or function.
Dr Casey prepared a conceptual diagram, reproduced below, which illustrates how pressure reduces from the pump to the outlet because of friction caused by pipes, hoses, and valves. The diagram illustrates a point made by Dr Culvenor, that if pipes of larger diameter are installed, there is less friction demand, and a pump achieving lower stagnation pressure can provide the same performance to the user at the nozzle.
The stagnation pressure is represented by the high point of the red and green lines at the left end of the diagram. The red line represents the new pump and the current pipes and hoses. The green line represents a pump achieving lower pressure which provides the same performance for the user because larger pipes have been installed and there is less friction demand in the system.
Pump manufacturers produce graphs of the performance of each model pump to assist purchasers to identify the model with the characteristics, in terms of pressure and flow rate, which will best suit their needs. An example characteristic graph prepared by Dr Casey is shown below. The curve on the graph will be flatter or steeper, depending on the pump’s characteristics. A pump designed to meet a greater pressure demand, for instance because of the need to lift water to a greater height or because of the length or size of pipes and hoses, will have a steeper characteristic curve. Conversely, a pump designed to meet less pressure demand will have a flatter characteristic curve. Stagnation pressure is shown as the highest point on the curve, when the flow rate is zero.
Dr Casey’s diagram and the characteristic graph illustrate two important facts. First, two pumps with different characteristics might provide the same flow rate, but achieve quite different stagnation pressure. Second, a user of the system, such as Mr Ford, knows how much water is coming out of his hose when the valve is open, but does not know the system’s stagnation pressure when the valve is closed.
The old pump
Mr Ford said:
The old pump was an old pump. It was worn out. That’s why they replaced it.
Mr Waddell said according to the manufacturer’s specifications the old pump had a maximum pressure of 1120 kPa. After inspecting the old pump he said it was rusted and corroded and probably unserviceable. He said that if the casing around the impellers was corroded, the impellers were not spinning correctly because the motor was worn out, or the impellers or other parts associated with them were in a state of disrepair, there was likely to be a loss of both pressure and flow produced by the old pump. Mr Waddell said if the old pump was still operating according to the manufacturer’s specifications, it should have been delivering adequate pressure and flow. He said because it was no longer performing adequately, he had a strong suspicion the old pump had degraded over time.
Dr Casey said he saw corrosion on the old pump which looked to him to be surface corrosion and did not look deep. He said he did not examine the internal workings of the pump, and accepted that until that was done he could not know how the pump was working, or what pressure it could achieve before it was replaced.
Switches on the old pump could be set so that it operated within a pressure range. A Snowy Monaro document dated 30 August 2013, which was authored by Mark Rixon, Acting Manager of Water and Waste Water with Snowy Monaro, and authorised by Linda Nicholson, Director of Engineering Services, records the procedure to reset the switches on the pump with a low pressure cut-in at 950 kPa and a high pressure cut-out at 1050 kPa. There was no direct evidence to establish what pressure the old pump was capable of producing when it was replaced, or whether and at what level the cut-in and cut-out switches were set. I note that Mr Rixon was present and assisted Dr Casey during his inspection of the saleyard wash bays and the pumps.
I accept Dr Casey’s evidence that the number of impeller stages, and therefore the pressure the pump could achieve, is unknown and may have differed from the model specifications. The old pump was corroded. The internal workings, which have not been inspected, may have been in a state of disrepair, leading to reduced pressure and flow. For many years the old pump was performing poorly, especially when both wash bays were being used. I accept Mr Waddell’s evidence that, had it been in good condition and operating in accordance with the specifications he found, the old pump should not have performed so poorly.
Snowy Monaro did not call Mr Rixon, Ms Nicholson or any other evidence in relation to the actual specifications of the pump, the settings operating before it was decommissioned, how it was performing or the stagnation pressure it could achieve. I cannot speculate what evidence might have been given about the old pump by Mr Rixon, Ms Nicholson or another officer of Snowy Monaro. However, I infer the evidence of Mr Rixon would not have assisted Snowy Monaro. Given the failure by Snowy Monaro to call such evidence, I more comfortably infer that the old pump had degraded over time, and was achieving a lower pressure than when it was new, and significantly less than the 1120 kPa maximum in the specifications.[2]
[2]Jones v Dunkel (1959) 101 CLR 298; Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 [51], [53].
The new pump
An Avdata printout records Mr Ford’s use of the Saleyards wash bays after the new pump was installed. At 6.45 pm on 27 February 2014 Mr Ford logged on to the system to check the new pump was working. On the same day he used wash bay 1 from 7.13 pm to 8.29 pm to give his trailers a soak so that they would be easier to wash the next morning. Wash bay 2 was also in use until 7.18 pm. The next morning Mr Ford used wash bay 1 between 7.31 am to 9.56 am to do a full wash of his trailers. Wash bay 2 was in use from 7.24 am to 8.41 am.
Mr Ford said the water pressure was good with the new pump, there was more pressure than the old pump, but he had not used it much so it was hard for him to say how much better the pressure was. It is important to keep in mind that Mr Ford was really talking about his experience of water flow when the system was open, not stagnation pressure with the system closed.
Mr Waddell inspected the new pump and said that when it was running with no outlets open it registered 1100 kPa.
I understood Dr Culvenor’s evidence to be that the maximum pressure produced by the new pump was around 1000 kPa. Dr Culvenor said there was a variable-frequency drive (‘VFD’) device in the electronics of the new pump, which could be set in control mode, to allow the pump to deliver a high flow rate, but to limit the maximum pressure. He said the switches could be set to limit the maximum pressure. When he observed the pump he had no opportunity to check the settings, but it was producing its maximum specified pressure, so he assumed it was set to operate in an uncontrolled mode.
Dr Casey explained the VFD is a digital controller which can control the motor speed to maintain the outlet pressure below a set limit. He said when he observed the pump it registered 1050 kPa, which was roughly the same as a Snowy Monaro document which indicated the pressure was being controlled by the VFD.
The Snowy Monaro document dated 1 April 2014 sets out the procedure for resetting the new pump. Mr Rixon was the author of the document, and it was authorised by Ms Nicholson. The document records the procedure to reset the pump switches with a range of 400 to 1300 kPa, with the system to operate at 1000 kPa for one bay and 600 kPa for two bays. There was no evidence to establish what settings were operating when the incident happened.
When he prepared his second report Dr Casey relied on the two Snowy Monaro documents recording the procedure to reset the pumps to conclude that the maximum pressure produced by the pumps was about the same In cross-examination Dr Casey conceded that comparison was flawed, and that until there was evidence from a witness or a document to show what the settings were on each pump, and how the old pump was performing, he could not compare the pressure produced by the two pump.
Mr Ford used the same hose, fittings and clamp at the Saleyards without incident up to February 2014. He said he used the wash bays at the Saleyards on an average of about once a month. Because of the poor performance of the old pump, he only used wash bay 1 when wash bay 2 was not being used. It is likely that on many of the occasions he used the wash bays his equipment would have been exposed to the stagnation pressure developed by the old pump. I conclude the compression of the hose on the fittings by the clamp was sufficient for safe use with the old pump.
Tests by the experts
The experts each performed tests on site at the Saleyards in an attempt to better understand the cause of the incident. Mr Waddell used a length of hose and fittings which Mr Ford said were identical to those he was using when the incident happened. The fittings blew out of the hose three of the four times he tested the same procedure Mr Ford used when the incident occurred. He said the first test, when the hose and fittings were dry, most closely replicated the conditions of the incident. In that test the fittings blew off the hose after about 15 seconds, accompanied by a very loud and dramatic explosion.
Dr Culvenor performed the same test. The fittings did not blow out, but there was leaking around the end of the hose. Dr Culvenor replaced the heavy duty clamp used by Mr Ford with a worm drive clamp, which he fully tightened, and repeated the test. He said the fittings did not release, and there was no leak. Dr Culvenor attached the fittings to a different type of hose using the worm drive clamp, and repeated the test. The hose burst. Dr Culvenor said he had not expected this to happen.
At his facility in Sydney, Dr Casey tested a short length of hose using a worm drive clamp at the nozzle end, and a heavy duty clamp at the tap end. He used a pressure test device to pump the pressure up to 1600 kPa. He said the nozzle fittings did not detach, but there was a minor leak at the other end of the hose.
When he attended the Saleyards and tested the stagnation pressure by attaching the pressure test device to the end of the hose and turning on the pump, Dr Casey said it measured 850 kPa, which was inconsistent with each expert’s observations of maximum pump pressure in the range 1000 kPa to 1100 kPa. He explained this was because a pressure reservoir attached to the system stored water under pressure, which was sufficient to fill the pipes and hose when he turned the pump on. The pump motor would not start until the pressure in the system fell below the level at which the cut in switch was set. Whether or not this is what occurred when Mr Ford turned the pump on immediately before the incident depends on two things. First, whether, and at what level, the cut in the switch was set. Second, what pressure the water in the reservoir was under when the pump was turned on. Dr Casey performed this test mid-trial, after Mr Ford had completed his evidence. It was not put to Mr Ford that the motor did not start after he turned the pump on immediately before the incident.
On the first two occasions after the new pump was installed, wash bay 2 was being used when Mr Ford started using wash bay 1. There is no evidence his equipment was exposed to stagnation pressure on either occasion.
Mr Ford described the incident:
It was pretty much in the one action and it’s just gone kaboom. Like big explosion and hit me in the eye.
The force of the explosion, that fact it occurred the first time Mr Ford’s equipment was exposed to the new pump stagnation pressure, and that the same equipment was used without incident for many years to February 2014, strongly supports the conclusion that the new pump achieved significantly higher pressure than the old pump.
The weight of the evidence from the expert tests is limited to some degree because the pump settings may have been changed between the incident and the testing. However, the results of Mr Waddell’s tests, particularly the first in which the fittings similarly exploded forcefully from the end of the hose when exposed to stagnation pressure, do provide some support for the conclusion I expressed in the previous paragraph.
Snowy Monaro did not call evidence about the settings on the new pump or what pressure it developed when it was installed, when the incident occurred, or when the expert tests were performed. I accept Dr Casey’s concession that in the absence of such evidence, a comparison of the pressure achieved by each pump based on the re-setting documents or the specifications found on the internet was flawed. Snowy Monaro could have called evidence from the manufacturer and installer of the new pump, and its own officers, such as Mr Rixon and Ms Nicholson.
I conclude that the stagnation pressure achieved by the new pump at the time of the incident was significantly higher than the old pump was achieving before it was decommissioned. I am more confident reaching this conclusion because of the unexplained failure of Snowy Monaro to call relevant witnesses. I infer such evidence would not have assisted Snowy Monaro.[3]
[3]Jones v Dunkel (1959) 101 CLR 298; Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 [53].
Alternatives proposed by Dr Culvenor to resolve the problem
Dr Culvenor said the problem caused by the mismatch of pressure between the pump and the clamp could be resolved in one of three ways. First, providing hoses and fittings at the Saleyards which matched the pump pressure. Second, engaging with users to advise them of requirements to ensure they used suitable equipment. Third, removing the excess pressure which created the problem without being required to meet a functional need.
Dr Culvenor said the hierarchy of controls philosophy, which is one of the theories underpinning occupational health and safety work, is to start with the source of the problem, in this case the design of the system, as the primary means of attending to the risk, then work toward the users. Dr Culvenor said the best solution to the risk he identified was to reduce the stagnation pressure developed by the pump. Next was the Saleyards providing hoses and fittings which were compatible with the pump pressure, and finally, engaging with users to advise of suitable equipment.
Dr Culvenor calculated the pressure demand in the wash bay system. He said the lift demand at the Saleyards was, at most, about 40 kPa. Suitably sized in-ground pipes from the pump to the tap would result in a friction demand of 30 kPa. The use of hoses that were 32mm in diameter resulted in friction demand of 320 kPa. Dr Culvenor said bends, valves and the nozzle would not contribute significantly to the friction demand. He identified a model pump which would achieve the water flow required at the Saleyards at a much lower maximum pressure. Dr Culvenor said he expected this pump, or one similar to it, could meet the pressure and flow requirements at the Saleyards. The model pump recommended by Dr Culvenor produced stagnation pressure of 510 kPa, which he said was around maximum household pressure, and about half that developed by the new pump. He said the proposed pump had a relatively flat characterisation curve.
Dr Casey disagreed that bends, valves and the nozzle contribute little to friction demand. He said the nozzles used by drivers have a very high friction. This meant that the pump recommended by Dr Culvenor was unlikely to achieve sufficient pressure and to produce flow rate and water velocity users required. Dr Casey accepted the new pump may achieve higher pressure than was required, and that it may be possible to further lower the pressure demand by installing larger diameter pipes and valves with reduced friction, but he said the only way to truly know was to calculate the friction demand of each element in the system.
I was not convinced by Dr Culvenor’s evidence that a pump which achieved half the stagnation pressure of the new pump could meet the pressure demands in the system and users’ needs for water flow and velocity. I accept Dr Casey’s criticism that this cannot be known until the pressure demands in the system are calculated. Variables, such as the length and diameter of hoses, and the valves, nozzles and fittings used by drivers may increase pressure demand. It is likely the needs of wash bay users could have been met by a pump which developed lower stagnation pressure than the new pump, but by how much is uncertain.
The high pressure water jetting guides
In December 2013, Safe Work Australia produced the Guide for Managing Risks from High Pressure Water Jetting (‘the Guide’), which states that it applies to pumps with an output capability greater than 800 bar litres per minute, a measure of volumetric flow rate and pressure. Mr Waddell and Dr Casey were at odds as to whether the Guide applied to the wash bay system. Based on the pressure developed at the pump, Mr Waddell said that it did. Dr Casey measured outlet pressure and flow at the wash bay tap, and calculated the system had a capability of about 100 bar litres per minute. He said the Guide was intended to apply to washers, such as Kärcher, Gerni or Spitwater systems, in which water is compressed to very high pressures, and not to systems such as at that at the Saleyards. The Guide describes high pressure water jetting as ‘a process using a stream of pressurised water’, and states ‘common hazards and risks include the water jet piercing the skin’. I agree with Dr Casey that the Guide is intended to apply to washer systems operating at far higher pressure than the Saleyards wash bays.
Post-incident changes
A newsletter circulated in July 2014 by Elmore Haulage to its drivers contains instructions for construction and assembly of washout hoses, including details of required fittings. On 3 March 2015 Elmore Haulage produced a safe operating procedure relating to water pressure washers documenting pre-operational and operational safety checks.
Some time after the incident Snowy Monaro replaced the faulty wash bay 1 tap. It also erected two signs at the wash bays, one of which read as follows:
DANGER
HIGH PRESSURE WATER
1 Wear protective equipment
2 Do not point nozzle at any part of the body while machine is operating
3 Turn machine off before rolling up hose
Relevant provisions and authorities
Civil Liability Act 2002 (NSW) (the Act)
Assessment of breach of duty is to be undertaken in accordance with s 5B of the Act:
(1)A person is not negligent in failing to take precautions against a risk of harm unless:
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)the risk was not insignificant, and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)the probability that the harm would occur if care were not taken,
(b)the likely seriousness of the harm,
(c)the burden of taking precautions to avoid the risk of harm,
(d)the social utility of the activity that creates the risk of harm.
The general principles in relation to causation are contained in s 5D of the Act:
(1)A determination that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2)In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a)the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b)any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
Mr Ford bears the onus of proving, on the balance of probabilities, each element necessary to establish factual causation.
Snowy Monaro did not owe a duty to Mr Ford to warn of a risk which was obvious to him.[4] Whether a risk is obvious requires a prospective objective assessment from the viewpoint of Mr Ford, given the circumstances he faced, and the possibility of harm occurring.[5] To be obvious, a risk must be clearly apparent or easily recognised or understood. A risk may be obvious though it has a low probability of occurring.
[4]Civil Liability Act 2002 (NSW) s 5H.
[5]Ibid s 5F.
Contributory negligence is to be determined in accordance with s 5R of the Act:
(1)The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose:
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
Work Health And Safety Regulation 2011 (NSW) (‘the Regulation’)
The parties agreed that the breach of statutory duty allegation was to be determined under pt 3.1 of ch 3 of the Regulation. Snowy Monaro concedes it is a duty holder for the purposes of that part. The general duties to identify hazards and manage risks are governed by cls 34 and 35:
34 Duty to identify hazards
A duty holder, in managing risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety.
35 Managing risks to health and safety
A duty holder, in managing risks to health and safety, must:
(a)eliminate risks to health and safety so far as is reasonably practicable, and
(b)if it is not reasonably practicable to eliminate risks to health and safety—minimise those risks so far as is reasonably practicable.
Where it is not reasonably practicable to eliminate a risk, a duty holder must implement risk control measures in accordance with cl 36:
(3)The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following:
(a)substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk,
(b)isolating the hazard from any person exposed to it,
(c)implementing engineering controls.
(4)If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls.
(5)If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment.
Breach of duty
Risk of harm
Determination of breach commences with correct identification of the risk of harm, which depends on the true source of potential injury.[6] The risk of harm is not confined to the precise circumstances in which Mr Ford suffered injury, or to the particular injury which he suffered.[7] Snowy Monaro submitted the risk of harm was the risk of injury to users of high pressure water at the Saleyards wash bays. The risk of harm proposed by Snowy Monaro is too general, and fails to focus on the source of potential injury, which in this case was the higher stagnation pressure achieved by the new pump. The risk of harm to users which arose from installation of the new pump was that their equipment might not withstand the higher stagnation pressure, and fail, resulting in injury.
[6]Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330, 351 [59]–[60]; Southern Colour (Vic) Pty Ltd v Parr & Anor [2017] VSCA 301 (20 October 2017) (‘Southern Colour’) [53].
[7]Chapman v Hearse (1961) 106 CLR 112; Erickson v Bagley [2015] VSCA 220 (25 August 2015) [33] (‘Erickson’); Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 (28 May 2014) [67]; Southern Colour [2017] VSCA 301 (20 October 2017) [54]–[55].
The requirements of s 5B(1) should not be applied in a formulaic or mechanical way.[8] Assessment of breach must be undertaken prospectively from the point of view of the defendant, not with the benefit of hindsight.[9] Evaluation of a defendant’s response to a risk must take account of the context, before the incident, in which the risk arose.[10] A defendant may act reasonably by taking no steps to ameliorate the risk.[11]
[8]Erickson [2015] VSCA 220 (25 August 2015) [37].
[9]Southern Colour [2017] VSCA 301 (20 October 2017) [57].
[10] Rosenberg v Percival (2001) 205 CLR 434 [88]; Vairy v Wyong Shire Council (2005) 223 CLR 422 [60]–[61], [124], [126]–[129]; Wicks v State Rail Authority (2010) 241 CLR 60 [33]; Hookey v Paterno (2009) 22 VR 362 [109].
[11]New South Wales v Fahey (2007) 232 CLR 486; Neindorf v Junkovic [2005] HCA 75 (8 December 2005) [14].
Snowy Monaro conceded there was a foreseeable risk of injury to users of high pressure water at the Saleyards, but submitted the fact that there was no evidence of any similar incidents occurring before Mr Ford’s incident should lead to the conclusion that the risk was not significant.
For the following reasons I do not accept Snowy Monaro’s submission. First, for the purposes of s 5B(1) of the Act, ‘significant’ is not a synonym of ‘not insignificant’. The former indicates a higher degree of probability than the latter.[12] Second, the particular risk only arose after the new pump was installed. The safety history of the Saleyards wash bay system before 27 February 2014 is not relevant to consideration of whether the risk created by the new pump was not insignificant. Further, Snowy Monaro’s submission overstates the evidence. No evidence was given about whether there were other similar incidents at the Saleyards either before or after the new pump was installed, there was simply an absence of evidence on the point. Third, while the phrase ‘not insignificant’ involves assessment of the probability of the risk occurring,[13] the degree of harm which may eventuate if the risk materialises is also relevant.[14] It was foreseeable that a wash bay user might suffer catastrophic injury if the fitting blew out of the end of the hose under high pressure. Fourth, as Dr Culvenor said, the risk was caused by a mismatch of the pressure in the system and the clamping of the hose. That is nothing more than common sense. Dr Casey agreed that if incorrect clamps were used there was grave potential for an accident. When it installed the new pump, Snowy Monaro increased the pressure in the system. It did not know what clamps were used by drivers. Mr Ford said he looked at what other drivers were using when he was deciding what hose and fittings to buy. After the new pump was installed there was a real probability of a mismatch between the stagnation pressure and the hoses, fittings and clamps used by some drivers. This evidence strongly supports the conclusion that the risk of harm was not insignificant.
[12]Peter Steven Benic v State of New South Wales [2010] NSWSC 1039 (30 November 2010) [98] (Garling J).
[13]Ibid.
[14]Zraika v Walsh [2015] NSWSC 485 (30 April 2015) [78].
Precautions
Mr Ford, Elmore Haulage and the Authority
The case made against Snowy Monaro was that a reasonable person would have taken one or more of the following precautions when it installed the new pump. First, providing a compatible hose and fittings for drivers to use, or alternatively, informing drivers and the transport companies who employed them what equipment was compatible with the new pump. Second, warning users about the increase in pressure.
Third, repairing the wash bay tap. Mr Ford submitted it was plainly negligent of Snowy Monaro to fail to maintain the components of the wash bay system. The tap was faulty for many years and should have been repaired. He submitted the following evidence established the broken tap was a direct cause of the incident. The incident happened on the first occasion after the new pump was installed that Mr Ford used the procedure of turning the pump on after placing the end of the hose inside a stock crate with the valve closed. Mr Waddell performed a test replicating Mr Ford’s procedure. In both the incident and the test the fittings blew out of the hose violently after about 15 seconds. Mr Waddell said it was likely the failure was caused by a ‘pressure pulse’. When Mr Waddell performed a test in which the tap was very slowly opened to allow a gradual increase in water flow, replicating the system Mr Ford used at other saleyards where the tap was not faulty, the fittings at the end of the hose remained in place. Dr Casey conceded that, as long as everything else was identical, the results of Mr Waddell’s test supported the conclusion that the broken tap was a cause of the incident. Mr Ford submitted causation was also established in a less direct way. Had the tap been working properly, he would have left the valve at the end of his hose partly open when he turned the pump on. Because the tap was broken he kept the valve closed, exposing the hose and fittings to stagnation pressure, which was a cause of the incident.
Fourth, setting the switches and VDF control on the new pump, or installing an alternative pump, to achieve a lower stagnation pressure. Fifth, Mr Ford submitted, Snowy Monaro should have complied with the Guide.
Snowy Monaro
Snowy Monaro submitted, first, that the ill-fitting clamp used by Mr Ford was the real cause of the risk. It was not responsible for defective equipment or inadequate instruction and training provided to Mr Ford by Elmore Haulage. Second, industry practice was that most saleyards did not provide hoses and fittings. Third, there was no history of prior accidents or injuries of this nature at the Saleyards. Snowy Monaro submitted it was entitled to be guided, when considering whether to take precautions, on its past experience and industry practice. Fourth, it would have been obvious to a reasonable person in Mr Ford’s position that wash bays at the various saleyards he attended operated at high pressure, the new pump produced high pressure, and that there was a risk of injury associated with using high pressure water systems. A warning sign like the one it erected after the incident would not have told Mr Ford anything he did not already know and expect. Mr Ford said there was more pressure with the new pump. The fact that the experts described the performance of the pumps in more technical terms did not diminish Mr Ford’s own appreciation of the nature of the output of the new pump on the two occasions he used it before the incident. Fifth, pursuant to s 5D(3)(b) of the Act, Mr Ford’s evidence that he would have taken a warning sign on board was inadmissible. There was no evidence that the incident would have been avoided had Snowy Monaro erected a warning sign. Sixth, Mr Waddell’s pressure pulse theory was inconsistent with his initial opinion discounting involvement of the tap and was unconvincing and should be dismissed. It was not proved by observation, and amounted to nothing more than a guess. Dr Casey’s reasoned rejection of the theory should be accepted. The tests conducted by Mr Waddell were unlikely to accurately reflect the state of the hose and clamp used by Mr Ford on the day of the incident because of factors such as ageing of the hose, and differences in tightening of the clamp. Seventh, Dr Culvenor’s proposal that the needs of wash bay users could be met by a pump achieving lower stagnation pressure was based on preliminary calculations. Because all factors relevant to the Saleyards had not been calculated it was not proved to be a viable or reasonably practicable alternative. The proposal was vague and untested. Eighth, the Guide did not apply to systems such as the wash bay pump, and was irrelevant.
Analysis
Snowy Monaro had exclusive control of the pump and the wash bay system. The pump was in a locked shed behind a locked fence and was not accessible to transport companies or users.
Snowy Monaro must have been aware of how the old pump was performing. It decided which model new pump to install, and determined what settings, if any, should apply. The decisions made and implemented by Snowy Monaro resulted in a significant increase in stagnation pressure in the wash bay system.
While Mr Ford, and presumably other drivers who used the Saleyards wash bays, were aware the new pump provided better water flow and velocity, they could not know what stagnation pressure it achieved. The relationship between stagnation pressure and the performance of the pump when water was flowing depended on the pump characteristics and the friction demand in the system. As Dr Culvenor explained, two different model pumps which provided the same performance in terms of flow and velocity might achieve very different stagnation pressure. In effect, the stagnation pressure was hidden from the user.
There was a real probability a driver would be injured if there was a mismatch between the driver’s equipment and the pump stagnation pressure. It was foreseeable that a driver whose equipment failed might suffer catastrophic injury. A reasonable person in the position of Snowy Monaro, having made a material alteration to the wash bay system which resulted in an increase in stagnation pressure about which users would not be aware, would have taken precautions against the risk of harm created by the change it implemented.
Matching the hoses to the pump
Snowy Monaro had access to relevant expertise, including Ms Nicholson, the Director of Engineering Services, and the installer of the new pump. I infer Snowy Monaro was aware, or could easily have discovered, what equipment would match, and be safe to use, with the new pump.
Snowy Monaro could have provided hoses and fittings which matched the new pump pressure and were safe for drivers to use. Alternatively, it could have informed transport companies and drivers what equipment was compatible. Neither precaution was burdensome. The Avdata system resulted in a computer record identifying the driver and the employer transport company, making it a simple task to disseminate information about hoses and fittings needed to safely use the wash bays. If Snowy Monaro chose the alternative of providing a hose for drivers to use, it would have been simple to implement a system to allow drivers access to the hoses. If a hose was damaged or went missing, Avdata records would identify the responsible driver. The cost of hoses and fittings would not be great.
Mr Ford was safety conscious. Had he been provided with a hose to use, or information about hoses and fittings needed to safely use the wash bays, it is likely he would have acted accordingly, and the incident would not have occurred.
Snowy Monaro relied on past experience to justify not taking precautions, but called no evidence to say what its experience was. For the reasons stated in paragraph [88], I reject Snowy Monaro’s submissions in this regard.
Current industry practice may be relevant to evaluation of the reasonableness of a defendant’s response to a risk. In Lindsay-Field v Three Chimneys Farm Pty Ltd,[15] J Forrest J, having reviewed the authorities, said:[16]
[15][2010] VSC 436 (29 September 2010) (‘Lindsay-Field’).
[16]Ibid [73].
In summary, the position in this country in relation to accidents involving an alleged breach of an employer’s duty of care and the relevance of industry practice where there is a significant risk of injury in the carrying out of the particular task is as follows:
(a)The primary rule is that the evidence of the industry practice is not determinative – the test remains: what is a reasonable response to the identified risk in all the circumstances.
(b)However, industry practice is relevant in assessing the adequacy of the response of the employer to the perceived risk. In this context it assists in determining whether the employer, being aware of the risk and being aware of industry practice, acted reasonably in not responding to the risk.
(c)In determining the adequacy of the employer’s response, it is necessary to pay particular regard to the potential danger posed by the work activity. A risk of minor injury may mean industry practice is an acceptable response; however, the greater the risk of significant injury then the greater the need to consider, closely, whether industry practice represents a reasonable response to that risk.
Whilst his Honour was considering breach by an employer, his summary is applicable to the present case. In Lindsay-Field[17] there was considerable evidence explaining the current industry practice which was adopted in the circumstances in which the plaintiff was injured. The defendant’s evidence was that it was aware those circumstances gave rise to the risk which eventuated, but its response to the risk accorded with industry practice, and therefore was reasonable. J Forrest J concluded the defendant had acted in accordance with industry practice, but, given the degree of risk associated with the activity in which the plaintiff was engaged, adopting industry practice did not represent a reasonable response.
[17][2010] VSC 436 (29 September 2010).
Mr Ford said hoses were not provided at three quarters of the saleyards he visited. There was no other evidence relevant to industry practice. The possibility exists hoses were provided at some saleyards to respond to a risk created by that saleyard pump developing high stagnation pressure. I cannot speculate as to whether that was the case. There is no evidence that the circumstances faced by Snowy Monaro, in terms of the stagnation pressure developed by the new pump, were the same or sufficiently similar to the three quarters of saleyards at which a hose was not provided, or that Snowy Monaro acted in accordance with current industry practice by doing nothing in response to the risk associated with installation of the new pump.
Mr Waddell’s evidence that ‘it seems likely that pumps at other truck wash facilities could have had similar pressures [to the new pump]’ takes the matter no further. Mr Waddell did not say he had knowledge of the stagnation pressure developed by pumps at other saleyards. His evidence on this point is speculation. However, even if accepted, for the reasons given above, it does not assist Snowy Monaro.
The evidence does not establish the current industry practice of saleyards in response to the risk of harm arising from stagnation pressure in wash bay systems, or that Snowy Monaro was acting in accordance with that practice by taking no precautions in respect to the risk when it installed the new pump.
Warnings
For the reasons given above, the risk of harm which relates to the stagnation pressure developed by the new pump, would not be obvious to a driver using the Saleyards wash bays. It was not obvious that the new pump produced higher stagnation pressure than the old pump, or that the wash bay system was under maximum pressure when the system was closed. Accordingly, the provisions in div 4 of pt 1A of the Act do not apply.
I accept Snowy Monaro’s submission that Mr Ford’s evidence about what he would have done in response to a warning is inadmissible.
The warning sign erected after the incident is directed to risks from high pressure water flow, not to the risk of harm from equipment failing under high stagnation pressure. A sign in these terms is unlikely to have prevented the incident. However appropriate warnings as to the risk of harm, particularly if given in conjunction with information about compatible equipment and by a sign at the wash bays, are likely to have been effective.
In my view a reasonable person in the position of Snowy Monaro would have warned transport companies and drivers about the risk of harm by doing two things. First, if the response to the risk was to provide information to transport companies and drivers about equipment which was compatible with the new pump, giving a warning at the same time about the risks of using incompatible equipment.
Second, erecting a warning sign at the Saleyards directed to the risk of equipment failing under stagnation pressure. A warning sign could explain, in simple and direct terms, that hoses, clamps and fittings come under maximum pressure when water is not flowing and may fail if unable to withstand high pressure. Drivers could be warned to:
(a) check hoses, clamps and fittings are rated to high pressure, and are secure and well maintained;
(b) keep hose valves open to avoid placing hoses and fittings under maximum pressure; and
(c) not to point nozzles at any part of the body while the valve is closed.
Mr Ford was safety-conscious and attentive to his equipment. One example is that he used a different system at the Saleyards because the wash bay 1 tap was jammed open. Unfortunately, the procedure he used exposed his hose and fittings to the stagnation pressure produced by the new pump. I am confident that, had he been given the sort of warning to which I referred, Mr Ford would have taken steps to avoid the risk identified.
The faulty tap
In his second report, Mr Waddell said that when the pump was turned on with the tap open and the valve closed the fittings at the end of the hose were exposed to a ‘high pressure pulse’ which was ‘a sudden rush of pressure [that] only lasts for a fraction of a second. This may be enough to start a fitting burst…’. In oral evidence he retreated, saying the build-up of pressure would happen gradually over a period of seconds because the pump had a soft start mechanism, and the receiver helped attenuate any pressure pulse. It remained unclear whether Mr Waddell’s view was simply that the system would then come under maximum pressure, or that there was a pressure pulse above maximum pressure. If it was the latter, Mr Waddell did not give an adequately reasoned explanation of the phenomenon.
Mr Ford submitted the results of Mr Waddell’s tests supported his theory, because the fittings blew out of the end of the hose when the pump was turned on with the tap open, but not when the tap was opened after the pump was on. For the following reasons I do not agree. First, there were possible variables between tests, and between the tests and the conditions at the time of the incident, including whether the hose and fittings were wet or dry, the amount of pressure in the reservoir before the pump was turned on, and whether there was any change in the pump settings between the incident and when the tests were conducted, which limited the value of comparing results.
Second, in tests where the tap was opened quickly after the pump was turned on, the fittings remained in place. It was not explained why a pressure pulse would not occur in these circumstances. Third, Mr Waddell did not explain how the tests supported his pressure pulse theory. Fourth, Dr Casey’s tests showed the maximum pressure in the system was the same when the pump was turned on with the tap fully open, as when the tap was slowly opened after the pump was turned on. For these reasons the direct causation case made by Mr Ford in relation to the faulty tap fails.
The wash bay 1 tap was faulty for many years. The prospect that drivers would operate the wash bay system in a way which exposed their hoses and fittings to stagnation pressure was increased because the tap was jammed open. Drivers were unable to use the tap to stop or regulate water flow. When it installed a new pump that developed higher stagnation pressure a reasonable operator in the position of Snowy Monaro would have been attentive to the condition of other elements of the wash bay system, and repaired the tap.
If the tap had been repaired, Mr Ford would have used the procedure he adopted at other Saleyards, leaving the valve at the end of the hose 30 degrees open, and regulating water flow by opening the tap after the pump was turned on. His hose and fittings would not have been exposed to stagnation pressure, and the incident would not have occurred. The failure to repair the tap was, in that way, a necessary cause of the incident.
I conclude Mr Ford has established breach and causation in relation to the failure to repair the faulty tap.
A different pump
Having regard to my earlier findings, little need be said about the precaution of reducing pressure by installing a pump with different characteristics, or by using the VFD device and switches. The evidence does not establish that it was feasible to use either option to significantly reduce stagnation pressure while at the same time maintaining the water flow performance of the system.
The Guide
I have found that the Guide did not apply to the wash bay system, and Snowy Monaro did not breach its duty to Mr Ford by failing to apply it.
Summary
I conclude Snowy Monaro breached the duty it owed Mr Ford by failing to provide hoses, clamps and fittings which matched the new pump, or to inform transport companies and drivers what equipment was safe to use at the wash bays, failing to warn transport companies and drivers of the risk of high stagnation pressure and of the use of incompatible equipment, and failing to repair the faulty tap. I conclude that, had any of these reasonable precautions been taken, it is unlikely the incident would have happened. Breach and causation have been established against Snowy Monaro.
Breach of Statutory Duty
Snowy Monaro accepted it owed Mr Ford the duties set out in pt 3.1 of the Regulation, and did not contend that a private cause of action did not arise from a breach of those duties.
The reasoning on which I concluded Snowy Monaro breached its duty of care to Mr Ford supports the conclusion that it breached pt 3.1 of the Regulation. Snowy Monaro did not take all reasonably practicable steps to minimise risks which arose from installation of the new pump.
Contributory Negligence
The only allegation of contributory negligence pursued by Snowy Monaro in closing was that Mr Ford failed to maintain his hose and equipment, and this was a cause of the incident. For the reasons stated in paragraphs [29] and [30] above, neither breach nor causation are made out, and the contributory negligence defence fails.
Contribution
Contribution is assessed on the basis of what is ‘just and equitable having regard to the content of that person’s responsibility for the damage’.[18] Such an assessment involves two principle considerations, the degree of departure for the standard of care required, and the relative causal potency of each defendant’s breach.[19] In Papadopoulos,[20] Beach J said:
Questions of apportionment involve questions of balance and relative emphasis. They involve the weighing of different considerations. Value judgments upon which reasonable minds might differ are involved. Some of these do not readily admit of articulation.[21]
[18]Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(2).
[19]Zealley v Liquorland (Aust) Pty Ltd & Anor [2015] VSC 62 (5 March 2015); Papadopoulos v MC Labour Hire Services Pty Ltd (No 4) (2009) 24 VR 655 (‘Papadopoulos’).
[20](2009) 24 VR 655.
[21]Ibid [79].
Submissions
Snowy Monaro
Snowy Monaro submitted first that Elmore Haulage had access to the wash bays, noting that the Avdata records showed 13 different key numbers presented by Elmore Haulage employees in the period 4 January 2014 to 13 March 2014, and should have been aware of hazards associated with using water under pressure. Second, the real hazard was the ill-fitting clamp, which was the exclusive province of Elmore Haulage. Third, the hazard represented by the ill-fitting clamp had been in existence for some years. Fourth, there was no evidence of prior similar injury at the Saleyards. Fifth, Elmore Haulage was responsible for Mr Ford’s training, and was in regular contact with him. Sixth, the non-delegable duty owed by Elmore Haulage could only be discharged by providing Mr Ford with appropriate equipment and training. Seventh, Elmore Haulage did nothing to check the appropriateness of the hose and fittings used by Mr Ford or the conditions at the Saleyards wash bays, and simply ignored potential risks to its employees associated with using wash bays at saleyards. Snowy Monaro conceded it controlled the saleyards premises and supplied the plant. Snowy Monaro submitted contribution should be apportioned approximately 25% to it, and 75% to Elmore Haulage.
Elmore Haulage and the Authority
Elmore Haulage submitted that the fundamental cause of the incident was the increase in stagnation pressure developed by the new pump. One factor, which Elmore Haulage and the Authority both strongly emphasised, was Snowy Monaro’s exclusive control of the premises and the pump, including the settings. It was submitted that gave Snowy Monaro a special opportunity to alter the course of events, and that failure to take reasonable precautions was far more potent than the admitted breach of Elmore Haulage, and that contribution should be apportioned 70% to Snowy Monaro and 30% to Elmore Haulage.
Analysis
The incident was caused by the ill-fitting clamp and the high stagnation pressure developed by the new pump.
Snowy Monaro controlled the premises and the pump. It installed a new pump that developed higher stagnation pressure than the old pump, giving rise to the risk of harm already identified, and breached its duty to Mr Ford by failing to take precautions identified above. It should have been aware of the particular hazard created by the new pump.
Elmore Haulage controlled the equipment used by its drivers, and the systems to check the equipment was safe. It failed to check the hose and fittings used by Mr Ford and to provide a clamp of the correct size. Consideration of the degree of departure by Elmore Haulage should not focus on the risk created by installation of the new pump at the Saleyards. A reasonable employer in the position of Elmore Haulage would have anticipated and taken into account the possibility that conditions such as water pressure might vary between different saleyard wash bays, or over time at a particular saleyard, and, taking account of that possibility, would have implemented a system to provide equipment compatible with different conditions which its drivers might encounter. The standard of care which Elmore Haulage owed to its employees was high.
Snowy Monaro was responsible for warning drivers about the risks of stagnation pressure, while Elmore Haulage was responsible for training drivers to use wash bays safely.
Snowy Monaro and Elmore Haulage could each have taken precautions, independent of the other, to avert the hazard.
The causal potency of the breach by Snowy Monaro was perhaps greater, but not by much. On the other hand, the breach by Elmore Haulage involved a greater departure from the high standard of care required of it. Taking all these matters into account I conclude responsibility for the incident and Mr Ford’s injuries should be apportioned equally between Elmore Haulage and Snowy Monaro.
I will hear from the parties as to the form of orders which should be made, and as to costs.
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