Heithersay v Adelaide Ship Construction International P/L - [2011] SADC 32

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
HEITHERSAY v ADELAIDE SHIP CONSTRUCTION INTERNATIONAL P/L
[2011] SADC 32
Judgment of His Honour Judge Muecke
25 March 2011
TORTS - NEGLIGENCE
Plaintiff working at a ship construction business adjacent to the Port River as an employee of a contractor to the business - An explosion occurred in a shed when the flame from an oxy-acetylene torch being used by the plaintiff pierced a near empty drum of paint thinners - The plaintiff suffered serious injuries - The plaintiff sued the ship construction business as occupier for damages.
Held: Not established that the ship construction business liable to plaintiff - Claim dismissed.
Wrongs Act 1936 s 17C; Occupational Health, Safety and Welfare Act 1986 s 23, referred to.
AFA Airconditioning v Mendrecki (2008) 101 SASR 381, considered.

HEITHERSAY v ADELAIDE SHIP CONSTRUCTION INTERNATIONAL P/L
[2011] SADC 32

On Friday 8 September 2000 Benjamin Heithersay (‘the plaintiff’) was employed by CM Heithersay Industries Pty Ltd (“the Heithersay company”). He was at that time 22 years of age. The Heithersay company was owned and operated by his father Ian Heithersay. He and his father were the only two full‑time employees of the business operated by the Heithersay company. That business was concerned in the manufacture and installation of refrigeration units for and on shipping vessels. Much of the business that it conducted was for Adelaide Ship Construction International Pty Ltd. That had been the case for many years prior to September 2000.
Adelaide Ship Construction International Pty Ltd, to which I shall now refer as ASCI, was owned and operated by Joseph Glamacak. He commenced the business in 1993 after coming to Australia from Croatia in 1969. ASCI was in the business of constructing shipping vessels, principally for the fishing industry. It did that from industrial premises adjacent to the Port River at Port Adelaide. Those premises comprised a number of slipways, sheds, storage facilities and other buildings and plant associated with the ship building industry in which it was engaged.
Exhibits D16A and D16B are photographs depicting the industrial premises operated by ASCI. In Exhibit D16A two large sheds are seen on the left-hand side of the photograph in front of a short jetty or pier at the end of which is a boat. The shed in the front of the photograph has two pitched roofs. The shed above that shed has a single pitched roof. That is the shed adjacent to the water, which is the Port River. The same two sheds are seen on the far right-hand side of the photograph Exhibit D16B. In that photograph there is a vessel on a slipway immediately in front of the single pitched roof shed which is adjacent to the pier or jetty which can be seen on the far right-hand side of Exhibit D16B. That boat is on a gantry which is on a slipway which goes into that shed. That large shed with a single pitched roof was referred to in most of the evidence as Shed No. 1, although some witnesses referred to it as Shed No. 2. I shall refer to it as Shed No. 1. That shed is about 42 metres long by 30 metres wide. It is high enough to receive and house shipping vessels of the type seen on the right-hand side of Exhibit D16B when under construction, or when in the shed for some other purpose. The Port River is at the northern end of Shed No. 1. The pier or jetty is to the west of the shed.
Ian Heithersay and Joseph Glamacak were well known to each other through the significant business dealings they had with each other for several years prior to September 2000.
On Friday 8 September 2000 there was a fishing vessel under construction in Shed No. 1 on the premises of ASCI. That vessel was a steel-hulled vessel. It was called “Night Stalker”. Also in that shed on 8 September 2000 was part of another vessel that was under construction. That part was in the north-western corner of Shed No. 1. That is, it was to the right of the shed as one looks at it in Exhibit D16B, and it was at the end of the shed that is closest to the water. This structure was sometimes referred to in the evidence as a “superstructure”. It was sometimes not entirely clear during the evidence as to which end of Shed No. 1 witnesses were referring when they spoke of the front or the back of the shed. Mostly they were referring to the front of the shed as being that end of the shed closest to the Port River, with the back of the shed being furtherest from the Port River. I shall refer to the front of the shed as being the northern end of the shed closest to the Port River.
In the large shed immediately to the east of Shed No. 1 was another fishing vessel under construction. That vessel was called “Kiana”.
At some time prior to 8 September 2000 Ian Heithersay and Joseph Glamacak agreed that the Heithersay company would construct a refrigeration unit for the fishing vessel “Kiana”. There was no written contract. I gather there rarely was when the two men did business. For the refrigeration for “Kiana” the Heithersay company was to construct two chillers, a condenser and two refrigeration compressor sets. The chillers, or chiller boxes, were each about three metres long and one metre square. Many of the photographic exhibits depict the two chiller boxes. A great deal of the evidence concerned them.
The two chiller boxes, to which I shall now refer as chillers, were manufactured by the Heithersay company at industrial premises at Panorama. Those were premises at which the Heithersay company constructed the refrigeration units which it constructed and later installed. I am satisfied and find that Ian Heithersay arranged for the two chillers to be delivered to ASCI’s premises probably in the week before the week commencing Monday 4 September 2000. I cannot find precisely when the chillers were delivered to ASCI but it is likely that occurred early in the week commencing Monday 4 September 2000. The chillers were of significant weight, being at least two and a half tonnes. They were unloaded from the delivery truck by forklift and/or mobile crane.
After the chillers arrived at ASCI’s premises at least two things needed to be done in respect of them before they could be installed into “Kiana”. First, they had to be painted. The outside shell of each of the two chillers was raw galvanised steel. I find that it was agreed between Mr Heithersay and Mr Glamacak that an ASCI painter or painters would paint the chillers. It is unnecessary for me to decide whether or not that is what usually happened. There is no doubt that one of ASCI’s painters painted the two chillers and painted them in Shed No. 1. Secondly, there was something that had to be attached to each chiller. Each chiller had to have a distributor attached to it, or at least fashioned so that it could be attached to it. That was a brass unit with copper tubes welded to it. There were twelve copper tubes on each distributor. The number of copper tubes was the same as the number of circuits in each chiller. At one end of each chiller there were pipes extruding from the circuits within each. What had to be done was to bend each of the copper tubes on each of the two distributors (which had also been constructed at the Panorama premises of the Heithersay company) so that they could ultimately be welded into each of the pipes extruding from each of the chillers. The copper pipes were all of equal length and their lengths could not be altered. The copper tubes on the distributor had to be bent, in different ways because they were going in different places, before the chillers could then be installed into “Kiana” and connected with other units that constituted parts of the refrigeration system for the fishing vessel.
On Friday 8 September 2000 the plaintiff was performing this task on one of the chillers within Shed No. 1. Whilst he was doing so an explosion occurred. As a result of that explosion he suffered very serious injuries.
The evidence differed as to who ultimately set up the chillers in the place within Shed No. 1 where they were later painted and where Ian Heithersay and his son, the plaintiff, were working on them so that the two distributors could ultimately be attached to one end of each of the chillers. Ian Heithersay said that they were set up in that position by those at ASCI, whilst Mr Glamacak said that Ian Heithersay was involved in that process. Ian Heithersay said in his evidence that the two distributors “normally could be done in the vessel but because the vessel wasn’t ready to receive the chillers we decided to do it outside the vessel. It could be done in either equally”. Mr Glamacak’s evidence later was that the “Kiana” job was behind schedule and that there was some need to catch up. Mr Glamacak also said that the Heithersays would normally paint such chillers but because the “Kiana” project was behind time he agreed with Ian Heithersay that ASCI would paint them at their site rather than them being painted at Heithersay’s Panorama site.
I am satisfied and find that at some time in the two days prior to Friday 8 September 2000 ASCI set up the two chillers within Shed No. 1 for painting and for the Heithersays to prepare for the attachment of the two distributors to the chillers. I find that the painter David Smith and Mr Glamacak were involved in that process, including selecting the place within Shed No. 1 where the chillers would be set up.
I consider that Exhibit D10 gives the best depiction of the chillers inside Shed No. 1. Exhibits D10 and D10A are both coloured copies of a photograph I find was taken by John Garvey, a government Workplace Services Inspector. I find that Mr Garvey took that photograph between about 4.00 pm and 6.30 pm on Friday 8 September 2000, the day of the explosion. Photograph number 1 of Exhibit P17A is the original exposure from which Exhibits D10 and D10A are copies. I am satisfied and find that photograph number 1 of Exhibit P17A depicts the scene within Shed No. 1 only hours after the accident involving the plaintiff. I am satisfied and find that that photograph depicts the scene as it was immediately after the explosion that caused the plaintiff severe injuries. The only qualifications to that relate to the oxy-acetylene equipment seen in the photograph (which comprises cylinders on a hand truck, a long hose, and a nozzle attached to an oxy-acetylene handpiece) and the fire extinguishers seen in the photograph. I am satisfied and find that the hose to the oxy-acetylene equipment and the hand piece to it were put back onto the hand truck after the explosion and that the hand truck and its cylinders, hose and handpiece were moved from where they were when the explosion occurred, to where they are seen in the photograph. I am unable to find where the fire extinguishers that are seen in the photograph were at the time of the explosion that caused the plaintiff’s injuries. Where the extinguishers were is not important to my judgment.
The white items to the left of the photograph Exhibit D10 are the subject chillers. To the left of the two chillers seen in Exhibit D10 and within the shed was the vessel under construction “Night Stalker”. That vessel was on a gantry on a slipway. That gantry is better seen in Exhibit P6B – Film 2032-010. In that photograph there appears to be an RSJ between two steel wheels forming part of the gantry on the slipway upon which the hull of “Night Stalker” is resting. Exhibit D10 depicts a similar type of gantry where there is an RSJ between two wheels. The wheels do not, however, appear to be on rails. A better picture of that, from the other side of it, is in Exhibit P6C – Film 2033-009. What I have referred to as an RSJ is that H-shaped piece of steel that forms part of the gantry upon which the two chillers seen in both photographs are resting. In other words, the photographs Exhibit D10A and Exhibit P6C – Film 2033-009 show that the two chillers were set up in Shed No. 1 such that the front of the chiller to the left in Exhibit D10 and the rear of the chiller to the right in the same exhibit are resting on the RSJ which appears to be part of the gantry, whilst the rear of the chiller box to the left in Exhibit D10 and the front of the chiller box to the right in that photograph are resting on steel horses or trestles. I have just referred to the front and the rear of the two chillers. When doing so I am referring to the front of the chillers as being those ends of them at which can be seen the two distributors comprising copper pipes and a brass unit. The rear of the chillers are the other ends of each. Those other ends are the same as seen in the photograph in Exhibit P6A – Film 2031-003. Both rear ends were closed with nothing extruding from them.
Film 2031-003 of Exhibit P6A is an otherwise useful photograph as it depicts “Night Stalker”, the two chillers, the Port River in the background, and some structure to the left and in the background beyond the chillers. That can also be seen in the background in Film 2032-010 of Exhibit P6B to which I earlier referred. The fire extinguisher seen in the foreground of that photograph is the same fire extinguisher seen in the right foreground of Exhibit D10. Film 2032‑004 of Exhibit P6B shows part of the vessel (or superstructure) under construction in the north-west corner of Shed No. 1. I find that all the photographs in Exhibits P6A, B, and C were taken by Mr Garvey within a couple of hours or so after the explosion that caused the plaintiff injuries. I am satisfied and find that each, with the same minor qualifications already referred to, depict the scene as it was at and immediately after the explosion.
I am satisfied and find that on either Wednesday 6 September 2000 or Thursday 7 September 2000 the two chillers were placed in the position that they were at the time of the explosion (and as seen in Exhibit D10) probably by Mr Glamacak and Mr Smith. I am satisfied and find that both Mr Glamacak and Mr Smith considered that the position in which they placed the chillers was an appropriate one for them to be painted and for any work that was required to be done on them by the Heithersays before their installation into “Kiana”. I find that Mr Smith considered that the area in which the chillers were placed was a “nice clear area” for him to work in. I find that Mr Smith used a small piece of masking tape to place over each of the twelve outlets at the front of each of the two chillers. I find he did that to prevent any spray paint from entering those outlets. I find that in further preparation to paint the chillers he used some solvent to wipe off the oil and grease from the external galvanised sheeting of both chillers. I find that to do that he used a solvent from a litre tin. I find that the solvent he used was not Ameron thinners.
I am satisfied and find that on Thursday 7 September 2000 Mr Smith spray‑painted the two chillers. I find that after spray-painting them he removed all the equipment and materials he had used, including thinners and paint, from the area around the chillers. I find that he left nothing that he had used in painting the chillers in the area of them.
I find that at some time after about 8.30 on the morning of Friday 8 September 2000 Ian Heithersay and the plaintiff arrived at the premises of ASCI. I find they brought all the equipment they required to do the preparatory work that was to be done to the two chillers before they were installed into “Kiana”. That equipment included tools to do the job and the oxy-acetylene equipment comprising the trolley, two cylinders, the hose, and the handpiece and nozzle.
Ian Heithersay said in evidence that before starting work he did his own hazard and risk assessment for himself and his son. He accepted that he was responsible to ensure the area where his workers were working was free of hazards. He said that if he considered that the area in which they were to be working was unsafe he would have said something and not started working. He said that he ensured that before they started working no flammable or hazardous material was in their vicinity. He said that if there was a 20 litre drum of inflammable material in the vicinity of where they were working he would have had it removed. That was because he anticipated that he and his son would be using oxy-acetylene equipment in the area of the chillers. I accept this evidence and find that Ian Heithersay did all that he said he did. I find that he inspected the area thoroughly and that he was satisfied that the area was safe and was appropriate for the work they had to do there. Mr Garvey considered that the site to do the work that needed to be done on the chillers was appropriate. I find that the area where the chillers were placed was clear, and was an appropriate site for the work that was to be done by the Heithersays. I find that there was nothing on the ground in the immediate vicinity of the two chillers. In particular, I find that there was no paint or thinners in the vicinity, and nothing at all of a hazardous nature. I find that the area was safe and suitable for the work the Heithersays were to do.
Ian Heithersay said that he had to be at the site that day to supervise what his son Ben was doing that day. He said that he and his son worked together to do the job that had to be done. He would watch over his son telling him which way to go. He would leave him to do something that he directed him to whilst he, Ian Heithersay, would do something else. He said he was supervising his son Ben because his son lacked experience and needed to be guided as to how to approach the task at hand.
As I have already indicated what had to be done at that time by the Heithersays was to prepare the two distributors which each included twelve copper pipes such that they would be ready ultimately to be attached to the pipes that extruded from the front of each chiller. Photograph 3 of Exhibit P17A is a good depiction of what ultimately had been achieved by the Heithersays at the time of the explosion which caused the plaintiff injuries. All the copper pipes in that photograph were originally straight. What had to happen was that they needed to be bent, without decreasing their length, so that they ultimately could be fitted into the extrusions from the chiller itself. The process by which that was to be achieved is called “annealing”. That involved the two Heithersays using oxy-acetylene equipment to heat the copper pipes. Once heated they would then be cooled using a damp cloth. Once cooled they could then be bent and moulded using their hands such that they ultimately appear as they do in photograph 3 of Exhibit P17A. Once the pipes had been bent to a state close to what is seen in that photograph there might need to be some final adjustment to ensure that they fitted into the extrusions and could then or later be soldered to them. Not only were their hands used in this process but there were also some small tools they used to effect the bending of the pipes, including the final adjustments.
Photograph 3 of Exhibit P17A is a photograph of the front of the northern chiller. The northern chiller is my description of the chiller closest to the front of Shed No. 1 and the river. It is the chiller in the foreground of the photograph Exhibit D10. That is the one that was nearly completed. The one in the background is seen in close up in Exhibit P6A – Film 2031-008. I call this the southern chiller. There is there seen some copper pipes that had been annealed and positioned, and also some straight copper pipes still to be done. Also in photograph Exhibit D10 is seen some tools on the ground in front of each chiller. There is also a yellow bucket seen which was used for water and a cloth to cool the heated copper before bending. On top of the right side of the steel trestle in the foreground of Exhibit D10 some items are seen. A close up of those items is Film 2032-005 of Exhibit P6B. These tools were used to assist the bending and final adjustment of the copper pipes forming part of the two distributors.

I find that both the Heithersays commenced the task of annealing the copper pipes after arriving at ASCI’s premises that morning. Ian Heithersay said that they arrived at mid-morning, whilst others said that they were there at a time that was probably earlier than that. I find that at least by 9.30 am they had arrived at the premises of ASCI and after they had set up and after Ian Heithersay had assessed the area they commenced work.
I find that the oxy-acetylene trolley was placed adjacent to the northern chiller, on the western side of it. I find that from that position it was easily accessible to both the Heithersays when both were or either was working on either chiller. I find that whilst both men were working on the northern chiller for some initial period, Ian Heithersay was working on the southern chiller and the plaintiff was working on the northern chiller when the explosion occurred. Ian Heithersay said that “right through the day we worked together”. I accept that evidence. The explosion occurred at about 2.15 pm to 2.30 pm that day. Both the Heithersays would have been working in the area of the chillers for several hours. Both said that they did not see, during that time, a 20 litre drum of thinners in or near that area. The plaintiff said that he did not stand on anything during the course of his work. He said he had no need to use such a drum on that day. He said there was no need for him to stand on anything and that if he had it would have hindered him in doing his job. He said that he was not saying that he recalled not standing on a drum, but he denied doing so because it would not be usual practice. Ian Heithersay said that he did not see his son standing on a drum at any time whilst he was doing his work on the chillers and if he had seen him doing so he would not have allowed it. When asked why he replied that “it is not a stable work platform”.
I find that at about 2.15 pm to 2.30 pm on that day the plaintiff was working on the copper pipes at the northern end of the northern chiller. I find he was doing final adjustments to the copper piping prior to those pipes being soldered to the extrusions or prior to the installation of the chillers into “Kiana” where such soldering would occur. I find that the plaintiff was not using the oxy‑acetylene equipment to solder, either silver soldering or any other type of welding. I find that the crimping of the pipes extruding from the chillers was done by the Heithersays on that day, after Mr Smith had painted the chillers earlier that week. I find that no soldering had been done by either of the Heithersays on that day. I accept what both Heithersays said about that when they said that they had not yet reached the point at which soldering would occur. Their evidence is also consistent with the equipment that was present, including the bucket and the bending equipment seen on the top of the northern steel trestle. The existence of that equipment and where those items are is consistent with their evidence. There is no other equipment apparently seen in the photographs which would relate to soldering except the oxy-acetylene equipment itself.
I find that shortly before the explosion Ian Heithersay had passed the oxy‑acetylene handpiece to his son when his son asked for it. I find an explosion occurred shortly after that. I find that what exploded was a nearly empty 20 litre drum of Ameron thinners. That drum is depicted in the photographs Exhibit P17B. I find that the drum was on the concrete floor of the shed in the vicinity of the northern chiller. I find that what happened was that the lit oxy‑acetylene nozzle came quite close to the Ameron drum such that its flame was directed to a position just above the “N” in “Ameron” seen in those photographs. That is just above a area of the drum where I presume a tap could be fitted to extract the thinners. I find that there were thinners within that drum, but the liquid thinners were at a level just below the hole that is seen just above the “N” in Ameron. I find that the inflammatory gases within the drum caused an explosion which was severe enough to blow the bottom off the drum. I find the drum was propelled to the roof of the shed from which it rebounded onto the upper deck of “Night Stalker”. I find the bottom of the drum ended up about three metres to the east of the chiller. I find that the explosion caused the plaintiff to catch on fire. His father and workers in the vicinity went to his aid. After initially trying to extinguish the flames on the plaintiff using fire extinguishers the flames were ultimately doused using water. An ambulance was called. The plaintiff was taken to hospital. He suffered horrible injuries. He still suffers from the sequelae of the explosion.
Mr Garvey was first contacted at about 3.00 pm on the day of the explosion. He went to ASCI’s premises, arriving there just after 4.00 pm. He ultimately left there at 6.30 pm after taking some photographs. Some of those are Exhibit P17A. When he returned to ASCI’s premises on the following Monday he went on board “Night Stalker” and was shown the damaged drum of Ameron thinners and later the bottom of it. He took photographs of them.
The plaintiff was paid compensation under the state’s workers compensation legislation. He was paid a certain sum of money. He now seeks damages against ASCI. Although other defendants were sued as well as ASCI (and indeed were represented at the beginning of the trial) the only defendant against whom the plaintiff now seeks damages is ASCI.
I understood and understand that the authority that paid monies to the plaintiff pursuant to workers compensation legislation seeks to recover the sum paid from ASCI. I take it from that that the trial was conducted in the plaintiff’s name to recover that sum.
I consider that those matters are not relevant to any issue I have to decide. The action was brought in the name of the plaintiff and was conducted in his name. A judgment cannot be entered for the plaintiff against ASCI unless the plaintiff can establish that ASCI is liable to him in damages. He will either establish that or not. The onus he has in this action is the same regardless to whom any judgment sum might be paid or to whose benefit any such sum may be awarded.
The quantum of any damages that might be entered in favour of the plaintiff against ASCI is not an issue I have to decide. The only issues are whether ASCI is liable to the plaintiff for any damages, and whether the plaintiff must bear some contribution for his own injuries.
Before I come to these matters it is necessary for me to consider a number of other matters that arise on the evidence. Many of my earlier findings were not significantly in dispute at the trial. I have indicated where there were some differences in the evidence of the witnesses and I have indicated how I have resolved some of those differences. I now turn to other important factual matters.
Mr Garvey was the government investigator from Workplace Services. As indicated earlier he attended on the day of the explosion and took some photographs. He returned the following Monday and took further photographs. He returned to the scene on several occasions after that and took statements from various people there. He took a statement from the plaintiff on 7 December 2000.
In his evidence Mr Garvey produced Exhibit D10A. He said that he had done that because he said it may better indicate a faint circle on the ground near the northern steel horse or trestle. Exhibit D10A is essentially a copy of Exhibit D10. Mr Garvey said that “a very very faint outline of a circle can be seen” on the left side almost adjacent to the left front trestle leg. He said that he looked at that in more detail on the scanned photograph on his computer and he printed it off in case it would assist to see to what he was referring. He said that on Exhibit D10A there is a length of wood which is partly burned on the eastern side. He said “it diminishes to the point where the multi‑grip tool is”. Mr Garvey was being asked about a position indicated to him as being a position where a Mr Kovacev told him he found the base of the Ameron drum of thinners. Mr Garvey was asked whether there was any evidence that a drum had stood at the position that had been indicated to him. That was when Mr Garvey indicated the very, very, faint circle on the ground nearly adjacent to the partly burned end of the length of wood seen in Exhibit D10. I took Mr Garvey to be saying that that circle was some evidence indicating that the drum of Ameron thinners that exploded was in that position immediately prior to the explosion. That evidence is the only objective evidence as to where the drum may have been prior to or when it exploded. It must have been somewhere in close proximity to where the plaintiff was working at the northern end of the northern chiller, otherwise it is difficult to see how the explosion could have occurred and the plaintiff been so severely injured.
The evidence of Simon Harris from AMDEL supported findings that the drum of thinners was on the concrete floor of the shed, that the handpiece was on the ground with the welding nozzle slightly elevated such that the flame from it made contact with what became the hole near the base of the Ameron thinners drum. Mr Harris’ evidence was to the effect that the nozzle must have been very close to where the hole was formed and that the drum contained thinners up to about 30 millimetres below the perforation. His evidence was that the puncture occurred between one and two seconds after the nozzle was in the position he reconstructed, and that then the drum exploded. I find that what Mr Harris reconstructed as to these matters is what happened.
The theory, put on behalf of the plaintiff, was that the plaintiff had dropped the oxy-acetylene handpiece whilst it was alight such that the flame came in contact with the drum of thinners near the base of it causing a hole to be burnt and then ignition.
The plaintiff’s evidence was that he could not say what he did or what happened immediately prior to the explosion. His evidence was that he had some recollection of the events of 8 September 2000 at the trial, but he conceded that it was difficult for him to know then what was part of his actual memory or what he had reconstructed from what he knew needed to be done. Indeed, the plaintiff conceded that between March 2000 and September 2000 he did not at trial have a clear recollection of the events of that period. He said that for a period after the explosion he has no memory at all. He was not sure at trial whether he could remember seeing the chillers in the position in which they were when the explosion occurred. He said that he thought that he was at that time working on the chiller closest to the rear of the shed (being the southern chiller and the less complete one) but he said that all other accounts say he was working on the one closest to the river (the northern chiller). He said that he could not recall if he was using the oxy-acetylene equipment but that was his usual practice when he was performing the job of annealing the copper pipes so that they could be introduced into the pipes extruding from the chillers. He said that he had no recollection at trial of dropping the oxy-acetylene torch. He said that he has read boxes and boxes of statements that he and others gave over the last nine years. He said that his apparent recollection earlier of events was bizarre and he is still now trying to make sense of what happened.
The plaintiff said that he was at the time of the explosion well aware of the dangers of using oxy-acetylene equipment near flammable material and he knew paint thinners to be flammable material. He had occasionally used thinners at Heithersay’s Panorama business. He conceded that it appears that he had told a number of people over the years that he had no idea how the accident happened. He said he had no recollection as to where the oxy-acetylene equipment was at the time of the explosion. He had no recollection of precisely what he was doing immediately prior to the explosion. He did not know whether the oxy-acetylene handpiece had come from equipment that was on his right or that was on his left.
I was impressed with the plaintiff as a witness and as a person. He seemed to take great care in giving his evidence and did not give me any indication that he was in some way trying to give a better account of events for the purpose of the trial than he actually recalled things to be. Although he denied standing on a 20 litre drum when he was working at the end of a chiller he conceded that he was not saying that he recalled not standing on such a drum. He then, however, denied doing so, but then again qualified that answer by saying that he was answering it on the basis of what his usual practice was, or was not insofar as standing on a drum was concerned. I return later to the question as to whether the plaintiff ever stood on the Ameron drum of thinners on the day of the explosion. For present purposes I am satisfied and find that the Ameron drum of thinners depicted in Exhibit P17B was on the ground adjacent to the northern steel horse and adjacent to the burnt end of the stick on the ground under the front of the northern chiller.
There was a significant body of evidence as to the storage of paint and thinners at ASCI. I am satisfied and find that at the time of the explosion paint and thinners were stored in a shed some way away from Shed No. 1. That shed is not seen on Exhibits D16A and D16B although the vicinity in which it was at the time of the explosion is seen in those photographs. It is the area where there is a small rectangular shed with a flat roof in the bottom right-hand corner of Exhibit D16A, and in the centre, towards the top of Exhibit D16B. I also find that paint and thinners were stored in a secure container just outside the front of Shed No. 1.
Exhibit D12 comprises four photocopies of photographs. (The legends are not part of the exhibit.) There was evidence to suggest that those photographs were taken in June of 2001, several months after the explosion in September 2000. The top photograph on page 2 was said in evidence to be a photograph of the north-western corner of Shed No. 1. It is said to depict drums of paint and of thinners. I find that as at September 2000 the north‑western corner of Shed No. 1 was used by ASCI’s painters as an area where paint and thinners would be kept and paint would be mixed during the course of a day when painting was occurring in Shed No. 1. I find that painting in that shed was a common occurrence. Significant quantities of paint were used by ASCI’s painters within Shed No. 1 during the construction of ships and vessels. I find that such painting involved the painting of metal, predominantly steel used in the construction of vessels. I find that although it was the practice of ASCI and it’s painters to return drums of paint, including opened but not empty drums of paint, to one of the two storage areas referred to earlier, and it was the practice to do the same with thinners, I find that sometimes they were kept overnight in the south-western corner of Shed No. 1. In the top photograph on page 2 of Exhibit D12 there appears to be a not insignificant amount of paint and thinners. I accept the evidence of Mr Smith that it was unlikely that such quantities were there on the day of the explosion. I accept that evidence because of the reason he gave for it. That was because there was in that corner on that day a part of a ship under construction. That is not seen in that photograph in Exhibit D12.
Mr Smith’s evidence was that he was spray painting inside “Night Stalker” on the day of the explosion. I am satisfied and find that at the time of the explosion paint and thinners were just inside the northern (river) opening of Shed No. 1. Notwithstanding this finding the evidence regarding the use of Ameron paint thinners within Shed No. 1 was all to the one effect. That was that Ameron paint thinners were used by ASCI only in respect of painting timber, and that no such painting ever occurred within Shed No. 1. Such timber that had to be painted when fitting out vessels was painted before the fit out occurred, was done elsewhere on the ASCI site, and not in Shed No. 1. I so find.
As at the day of the explosion Manh Nguyen was employed as a painter at ASCI. He had worked at ASCI for at least six months. He was in Shed No. 1 on the day of the explosion.
Mr Nguyen said that on the day of the explosion he saw the Heithersays working on “two of these things”. He saw “him bending the pipes down to the things” (the chillers). He said he saw the plaintiff “standing on top of the drums, so he can stand above the pipes so he can weld the pipes in”. He said it was a white-coloured drum. He said there was only one drum. He said that he saw the plaintiff standing on the drum on more than one occasion.
Mr Nguyen said that he went to get a drink of water. He said that a water fountain was on the western side of Shed No. 1. On his way back from getting a drink he heard a “boom” and then saw “the whole can fly up to the roof”. The can was on fire. He saw it hit the roof and bounce back on to the deck of “Night Stalker”. He described seeing the plaintiff on fire. He described what he did then. Mr Nguyen said that the explosion occurred after lunch. I have found that the explosion occurred at about 2.15 pm to 2.30 pm that day.
Mr Nguyen accepted in cross-examination that he had told Mr Garvey soon after the explosion that he had seen the plaintiff standing on a drum between 11.30 am and 11.45 am. He accepted that he referred only to the one occasion when he saw the plaintiff standing on a drum. Despite that Mr Nguyen said that he had seen the plaintiff standing on a drum three or four times and that occurred over at least a couple of hours. He said that when he saw the plaintiff on a drum the plaintiff was in front of the northern chiller. His chest was then at a level of the pipes, or higher, such that he was above the chiller. He said that the plaintiff was looking down a bit. He said he was welding because he saw “the fire was on” and something was melting and dropping. He said there were white or silver coloured drops. When the suggestion was put to him that the plaintiff was using heat to bend the pipes he said he “only saw him bending the pipes by hand, because the copper is soft. You don’t need to heat it up to bend it”.
Before I make findings as to Mr Nguyen’s evidence I deal with the evidence of Karlo Herzenjak.
Mr Herzenjak did not attend at the trial to give evidence. What I received was a signed statement from him taken by Mr Garvey on 13 September 2000. The statement is in Mr Garvey’s handwriting but is signed by Mr Herzenjak. The statement was sought to be tendered pursuant to the Evidence Act, 1929. Its tender was opposed. I received it and it is Exhibit P29. Mr Herzenjak has not, of course, been examined orally, nor has he been cross-examined.
Mr Herzenjak stated that he is a boiler-maker and had been employed by ASCI for four and a half years. He stated that on Thursday 7 September 2000 he was working on a mast in No. 2 shed and he saw someone painting two refrigeration units. It was spray painting. It did not take long to do the painting.
Mr Herzenjak stated that on Friday 8 September 2000 he started work at 7.30 am and was working on a mast. He was tack welding and oxy-cutting. He was about eight metres away from the refrigeration units. He stated: “I remember seeing a drum of about 20 litres which I knew to be a drum of thinners beside the refrigeration units. I remember because I (MOVED) it out of my way. It had something in it when I moved it. It was not full but could have been nearly empty. I did not remember seeing it there before. I knew it was thinners because it was different to paint containers. It was closer to the refrigeration unit which was closer to the back of the shed. I never saw the container again.”

Mr Herzenjak stated that he first remembered Ian Heithersay and his son working on the refrigeration units sometime before lunch. They were still there when he came back from lunch. He stated that some time between 2:15 pm and 2:45 pm he heard an explosion. He looked down to the refrigeration units and saw Benjamin Heithersay on fire. “He was about one metre from the refrigeration unit at the back of it towards the sea end. I saw him holding his face.” Mr Herzenjak stated what happened then. He stated that when the fire was put out he saw “what looked like the bottom of a container about one and a half metres from the back of the refrigeration unit where I had seen Benjamin working. I did not know what it was from. I had not seen it there before.”
In considering Mr Herzenjak’s statement I must have regard to the fact that he did not give oral evidence and was not subjected to cross-examination. Importantly, I do not know what Mr Herzenjak would say as to when he saw a drum of about 20 litres which he knew to be a drum of thinners beside the refrigeration units. I do not know when he would say he moved it out of his way, from where he moved it or to where he moved it. I do not know whether he could say that it was closer to the refrigeration unit which was closer to the back of the shed before he moved it or that it was closer to that unit after he moved it. I cannot be sure what part of the shed Mr Herzenjak referred to when he used the phrase “the back of the shed”.
I am satisfied and find, however, that Mr Herzenjak saw and moved a nearly empty 20 litre drum of thinners at some time before the explosion. There is no doubt that such a drum, which I find it to be a nearly empty 20 litre drum of Ameron thinners, was in the shed at some time prior to the explosion. That is because I am satisfied and find that such a drum exploded causing serious injuries to the plaintiff.
What none of the objective evidence, and little of the other evidence, assists me with is making findings as to how the 20 litre drum of Ameron thinners that exploded came to be in the position where it was when it exploded. Who brought it into Shed No. 1, and for what purpose? How long had it been in the shed, and in particular, how long had it been in the position I have found it was when it exploded? If Mr Herzenjak didn’t put it in the position that it was when it exploded, who did? Was the plaintiff aware of the presence of the drum before the explosion, and if so, for how long was he aware of its presence and did he have anything to do with it being there? Similar questions arise as to Ian Heithersay’s knowledge of the presence of the drum that exploded.
Another question is: Did Mr Nguyen see the plaintiff standing on a drum when performing work at the northern end of the northern chiller?
Ian Heithersay’s evidence was that if he saw such a drum in the area before the explosion he would have had it removed before any further work was done. I am satisfied and find that Ian Heithersay was working in the area, including in the area of the place at which the drum was when it exploded, for some time. In light of my finding that the 20 litre drum that exploded was adjacent to the northern steel horse when it exploded, it is difficult to see how Ian Heithersay and the plaintiff would have failed to see it. On the evidence of both of them the plaintiff was standing but a few feet away from the drum, working on the end of the northern chiller, when the explosion occurred. The drum would have been no more than two metres away from Ian Heithersay, and probably even closer, as Ian Heithersay’s evidence was that after he passed the oxy-acetylene handpiece to his son, who I find was working at the northern end of the northern chiller, he turned back to his work. I find that Ian Heithersay was at that time working at the northern end of the southern chiller.
I consider that the drum must have been in the place where I have found it was when it exploded for some time prior to the explosion because the co‑incidence of it being placed in that position by someone else whilst the plaintiff and his father were busily engaged in working at the northern ends of the two chillers such that neither was aware of it when the plaintiff either dropped the handpiece of the oxy‑acetylene equipment or placed it on the ground such that the flame burned a hole through near the base of the drum causing it to explode is a coincidence I cannot contemplate on the evidence before me.
On the other hand I am not prepared to find that the drum was in the position I have found it was when it exploded for any significant time. I cannot imagine that Mr Herzenjak moved a drum that he thought contained thinners “out of (his) way” by putting it adjacent to a man who was obviously using oxy‑acetylene equipment. He stated that he was tack welding and oxy-cutting about eight metres away from the refrigeration units. I cannot imagine that he would move a drum which he would infer to be flammable from a position where it was in his way about eight metres away from the chillers to a position which was next to someone else using oxy-acetylene equipment next to a chiller.
I have ultimately come to the conclusion that it was the plaintiff who caused the drum that exploded to be adjacent to him in the position that I have found it to be when it exploded. I have also concluded that the plaintiff brought the drum to the area in which he was working in order to stand on it so as to better complete the work with the copper pipes on which he was engaged immediately before and at the time of the explosion. I am unable to find from where he got it. I find that he had stood on the drum to do some of the finer adjustments required by his work and that he had moved the drum to the position where it was when it exploded just prior to the explosion. I am satisfied that he probably dropped the handpiece or placed it on the ground such that, purely by chance and by tragic co‑incidence, the flame from the welding nozzle punctured the drum causing it to explode.
I am unable to imagine any other scenario for the cause of this tragic accident.
I am satisfied that Mr Nguyen did see the plaintiff standing on the drum that exploded at some time before the explosion, although I consider that Mr Nguyen reconstructed his evidence that he saw the plaintiff standing on it a number of times and that he saw the plaintiff welding. I find that he saw neither of those. I am satisfied that Mr Nguyen wrongly assumed the plaintiff was welding because he saw that he was holding a lit oxy‑acetylene torch.
I am unable to make a finding as to whether or not Ian Heithersay probably saw his son standing on the drum. I am also unable to make a finding as to whether or not he probably saw the drum next to where his son was working using the oxy-acetylene torch. My inability to make a finding in respect of both these matters is not because I consider that Ian Heithersay was consciously being untruthful in his evidence concerning them. The incident involving his son was, I find, extremely traumatic for Ian Heithersay. I consider that whether he now has a reliable memory of what he saw and did not see must be affected by that and possibly feelings of responsibility he may have for his son’s injuries.
Further, I am unable to make a finding as to how the 20 litre drum of Ameron thinners came to be in Shed No. 1. I find that the Heithersays did not bring it to ASCI from their Panorama business on the day of the explosion. I find that the drum was at the ASCI premises before the Heithersays arrived on that day. I am not able to find, however, that it was in Shed No. 1 at the time they arrived. I am satisfied that the plaintiff got it from somewhere on ASCI’s premises. I cannot find where that was.
I am satisfied and find that neither Ian Heithersay nor Mr Glamacak complained to or warned the other at any time about dangers associated with the use of paint and thinners in Shed No. 1, or in close proximity to “hot work”. I do not find that Mr Glamacak saw Ian Heithersay standing on a drum, nor do I find that Mr Glamacak warned Ian Heithersay not to do so.
Discussion and conclusion
On 8 September 2000 ASCI was the occupier of Shed No. 1 at its premises on the Port River. As occupier it owed a duty of care to entrants to the premises. That included the plaintiff.
Section 17C of the Wrongs Act 1936 sets out ASCI’s duty of care to the plaintiff. Under that section any liability ASCI has to the plaintiff for the injuries and loss suffered by him that are attributable to the dangerous state or condition of its premises shall be determined in accordance with the principles of the law of negligence. ASCI’s duty of care “was no greater than the common law duty; namely a duty to exercise reasonable care or to take reasonable steps to avoid risk of harm to the plaintiff: AFA Airconditioning v Mendrecki (2008) 101 SASR 381. Sub-s (2) of s 17C sets out the matters the court shall take into account in determining the standard of care to be exercised by ASCI.
The nature and extent of any danger arising form the state or condition of the premises, and the circumstances in which the plaintiff became exposed to that danger, are relevant to ASCI’s duty of care under s 17C of the Wrongs Act.
The extent to which it would have been reasonable and practical for ASCI to take measures to eliminate, reduce or warn against any danger to the plaintiff when he was using oxy-acetylene equipment in Shed No. 1 is also relevant to any liability ASCI had to the plaintiff. The question as to whether any activity conducted in Shed No. 1 was inherently dangerous, more hazardous than other activities, or was a task that carried a high risk of harm to others giving rise to a requirement on ASCI to take special precautions is also relevant (see Mendrecki, para 139).
ASCI, as occupier of Shed No. 1, also had a duty to the plaintiff when he was working in it. That duty was to ensure so far as is reasonably practical that the workplace was maintained in a safe condition. That duty arises under s 23 of the Occupational Health, Safety and Welfare Act 1986. It is not a non‑delegable duty (see Mendrecki, para 102). That section establishes a cause of action for the plaintiff against ASCI.
It was submitted on behalf of the plaintiff that the activity in which he was involved was extra-hazardous such as to give rise to a non-delegable duty in ASCI as occupier. It was submitted that ASCI’s duty to the plaintiff was higher in this case because of the fact that the shed where the explosion occurred was a “hot work” area.
It was submitted that this case is about the state of ASCI’s premises rather than the activities taking place on them, and that ASCI failed to maintain their premises in as safe a condition as was reasonably practicable.
It was submitted on behalf of the plaintiff that “despite all of the evidence that (I) heard and despite all of the submissions that were made this is really a simple case. It’s simple because the drum was there, it shouldn’t have been there, a torch was accidentally dropped and the plaintiff was blown up. That’s really quite a simple case and it’s all to do with the housekeeping of (ASCI) … which … was defective and which has clearly been demonstrated as being defective by the evidence that (I) heard.”
I do not consider that the task in which the plaintiff was engaged or the performance of that task was inherently dangerous or that it carried a high risk of harm to the plaintiff or others, even in what I am satisfied was a “hot work” area. The use of welding equipment of all types in Shed No. 1 and the use of paint, including thinners, in that shed was commonplace, to the point of being practically a daily occurrence. The use of oxy-acetylene equipment to anneal the copper pipes that the plaintiff was working on was not, in my view, of itself, inherently dangerous or high risk. The danger arose when such equipment was being used by the plaintiff in close proximity to a near empty drum of thinners which I have no doubt should not have been there. But I have found that the plaintiff was using that drum to stand on whilst performing his work. I cannot find where he got it from. I cannot find how long it was in his work area prior to the explosion. I am satisfied that it was not there for long prior to the explosion. Mr Garvey said that he “had no issue” with ASCI’s storage of paint and thinners and he could not establish how the drum of Ameron thinners came to be in the immediate vicinity of the northern chiller. Mr Garvey also said that he found no evidence of paint and thinners in the north‑western corner of Shed No. 1, although he conceded that he did not explore that. I cannot, therefore, find how any particular system of housekeeping put in place by ASCI could have averted the explosion.
I consider that the Heithersay company was solely responsible for the area immediately adjacent to the two chillers upon which Ian Heithersay and his son were working. I do not consider it was reasonable and practical for ASCI to take measures to warn the plaintiff against the danger of standing on a drum which possibly contained thinners, or to eliminate the risk that such a drum was immediately adjacent to him whilst he was using oxy-acetylene equipment. To eliminate, or even reduce, that risk would require some employee of ASCI to watch over the plaintiff as he did his work. I find that the plaintiff was well aware of the danger that working adjacent to a drum of thinners posed to him, and Ian Heithersay, on behalf of the Heithersay company, was also.
I am satisfied that in the circumstances ASCI discharged its duty of care to the plaintiff, or at least it has not been proved that ASCI was in breach of its duty to the plaintiff as the occupier of Shed No. 1. I am satisfied that ASCI has ensured so far as was reasonably practicable that its workplace was maintained in a safe condition for the plaintiff to work in, or at least it has not been proved that it did not do so.
I find that the plaintiff himself caused his workplace to be in an unsafe condition and that his conduct was the sole cause of the explosion.
I have concluded that the plaintiff has failed to establish that ASCI was in breach of its duty to him as occupier of Shed No. 1. This was a tragic accident with tragic consequences to the plaintiff and his family. I am unable to find that ASCI is liable to the plaintiff for those consequences.
Accordingly, I would dismiss the plaintiff’s claim against ASCI.