Kuhl v Zurich Financial Services Australia Ltd - [2009] WADC 4

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KUHL -v- ZURICH FINANCIAL SERVICES AUSTRALIA LTD on behalf of WOMA (AUSTRALIA) PTY LTD (deregistered company) & ANOR [2009] WADC 4

CORAM: WISBEY DCJ

HEARD: 20-22 OCTOBER 2008

DELIVERED : 22 JANUARY 2009

FILE NO/S: CIV 2419 of 2004

BETWEEN: GEOFFREY LAWRENCE KUHL
Plaintiff
AND
ZURICH FINANCIAL SERVICES AUSTRALIA LTD on behalf of WOMA (AUSTRALIA) PTY LTD (deregistered company) (ACN 009 033 103)
Second Defendant
QBE INSURANCE (AUSTRALIA) LTD
Third Defendant

Catchwords:

Negligence - Duty of care - Scope of duty - Plaintiff injured when arm drawn into suction inlet of vacuum hose being used in the course of his employment with Transfield Construction Pty Ltd - Hose and vacuum facility provided to Transfield by second defendant

Legislation:

Corporations Act 2001
Workers Compensation and Rehabilitation Act 1981

Result:

Claims against second and third defendant dismissed

Representation:

Counsel:

Plaintiff:     Mr M Tedeschi
Second Defendant         :     Mr J Criddle
Third Defendant            :     Mr A Power

Solicitors:

Plaintiff:     Taylor Smart
Second Defendant         :     SRB Legal
Third Defendant            :     Jarman McKenna

Case(s) referred to in judgment(s):

Nil

WISBEY DCJ: Geoffrey Lawrence Kuhl (the plaintiff), a trades assistant born 18 January 1950, received injuries in an accident in the course of his employment on or about 19 November 1999. Insofar as is relevant to the issues before the Court it is alleged in the statement of claim that the accident was the result of the negligence of WOMA (Australia) Pty Ltd, a deregistered company, in place of which its insurer stands pursuant to s 601AG of the Corporations Act 2001; alternatively the negligence of Hydrosweep Pty Ltd, a deregistered company, in place of which its insurer stands pursuant to the aforesaid statutory provision. At the relevant time the plaintiff was working at the BHP HBI plant, Boodarie, Port Hedland, having commenced employment there with Transfield Construction Pty Ltd in September 1999.
The plaintiff left school when he was 15 and following a five year apprenticeship as a panelbeater/spraypainter, worked in that trade for some three to four years, and thereafter as a plant operator in the mining industry.
In the course of his employment the plaintiff's left arm was drawn into the air ingress opening of a vacuum hose being used to remove, by suction, iron fines and metallised lump material from the reactor grid floor. The suction creating power unit was mounted on a truck owned and controlled by WOMA, which it is alleged was at the material time under the control of one Kelleher, an employee of Hydrosweep.
It is alleged against each defendant that it was negligent in failing to:
(i)warn the plaintiff of the danger of body contact with the suction inlet;
(ii)ensure the plaintiff was adequately trained in the proper operation of the vacuum hose;
(iii)instruct the plaintiff in the safe operation and handling of the vacuum hose;
(iv)provide proper supervision; and
(v)provide a vacuum hose with a protective mesh guard over the suction inlet, appropriate grip handle, and capacity to terminate suction.
Similar allegations of negligence were made against the plaintiff's employer Transfield, but the claim is statute barred (s 93E Workers Compensation and Rehabilitation Act 1981 as amended).
The plaintiff stated that his employment with Transfield involved cleaning reactor grid floors which necessitated (inter alia) the suction removal of iron fines and metallised material from the base plate. He worked nightshift, 6.00 pm to 6.00 am seven days per week, with an entitlement to one week off in every three, although in reality he worked continuously. He stated that his work involved entering the reactor through a manway, breaking up solidified metal and ore with a jackhammer or similar implement, and vacuuming the waste. There could be two to five Transfield employees known colloquially as "reactor rats" in the reactor at one time. The vacuum hose being used in the reactor was attached to a stand pipe which was connected by hose to a vacuum truck positioned some 50‑60 metres from and below the reactor. It was necessary to climb down some stairs, cross a landing and go down a further flight of stairs to reach the truck. A Transfield employee, known as the "hole watcher", monitored reactor activity.
The plaintiff stated that from time to time when the vacuum hose blocked with waste material, it was necessary to strike it with an object such as a hammer or spade to clear the obstruction. He had not had any specific training or instruction about clearing obstructions, but had observed others, including WOMA employees, perform the task. When it was not possible to clear the blockage in the manner described, it was necessary to notify the hole watcher who would then contact the truck operator.
On the day of the accident there was a routine shift duties meeting of Transfield employees. Having been allocated his task, the plaintiff proceeded to the reactor, checked the gas level record, and signed the JSA before commencing duties. The vacuum hose was inside the reactor in active suction mode, and the plaintiff commenced using it. He described the hose, which had a diameter of 4‑6 inches, as being flexible and awkward to use. It was not fitted with a handling device.
Up until the accident the plaintiff was required to clear a number of blockages. He had not been instructed to avoid his body coming into contact with the suction inlet; told not to attempt to unblock a hose that was in active suction mode; or told not to take the hose when it was in active suction mode.
At about 4.30 am a hose blockage occurred, and as a result the plaintiff exited the reactor and removed the hose. He then endeavoured to free the blockage, and while so doing Mr Kelleher appeared, proceeded to deal with the blockage, and having indicated to the plaintiff that it had been cleared, passed the hose back to him. It was at that stage that the plaintiff's left upper limb was drawn into the hose where it remained for some time before Kelleher and he were able to extract it.
When asked to describe what happened when Mr Kelleher passed the vacuum hose to him, the plaintiff said:
"My arm was caught in it, in the end opening of it, whatever you want to call it."
When further asked to describe what occurred, "What was the physical action?" the plaintiff said:
"Just passed directly back to me. I moved it a bit to the side to grab it as it was the only way to do it and the next thing my arm was gone … sucked in … up to my shoulder."
The incident was not explored further in cross-examination.
During cross-examination the plaintiff stated that on commencement with Transfield he underwent work induction which involved the basic running of the HBI plant. He agreed that there was a pre-start meeting at the beginning of each shift for the purpose of allocation of jobs, followed by a further discussion at the worksite concerning how the job was to be undertaken, and identifying relevant safety issues. He acknowledged that it was inappropriate to direct the suction inlet of the vacuum hose towards anybody, or part of a person's body, and that the issue was probably discussed as part of the job safety analysis. He was aware before the accident that the vacuum hose constituted a danger if not properly handled.
The plaintiff confirmed that he worked substantially as a reactor rat from September 1999 until the accident, and was aware of the safety instruction not to place any part of the body in front of the suction inlet when starting up or under load, and not to direct the suction inlet towards any person.
Peter Rogosic, a mechanical fitter, was at the date of the accident employed by Transfield at the HBI plant, having been there for about four years. He was the plaintiff's supervisor, working mainly on nightshift. He stated that there was a pre‑start meeting of the Transfield employees before commencement of the shift, which followed on from a supervisor's meeting. His recollection was that Transfield had been responsible for cleaning out the reactors ever since he began employment. Initially the job was done manually, but vacuum cleaning was subsequently introduced. The vacuum truck's plant was connected by hose to a vertical stand pipe in the building, and a hose connected to the stand pipe would extend into the reactor. His evidence was that the hoses were connected by WOMA employees, one employee operating the truck, and another maintaining the line. His understanding was that it was the WOMA operator's job to deal with blockages in the line. When a blockage occurred endeavours were made to clear it by the application of force, but when the blockage was some distance down the line it was often necessary to break the hose and reverse it, to clear the obstruction. He stated that at the time of the accident the vacuum hose was a 6 inch diameter flexible hose which did not have a nozzle or gripping handle, or the facility for the operator to manually terminate suction.
On the night in question Mr Rogosic made regular checks on the progress of the cleaning work. He did not see, but became aware of the accident. He confirmed that shortly thereafter a handled nozzle and vacuum suction release flap were fitted to the hose. He accepted that the task of vacuuming waste was simple, and did not require any particular instruction.
Mohammed Ali Arajan Rachman commenced employment with Transfield as a trade assistant at the HBI plant in early 1999, and in that capacity was required to clean reactors. Reactor rat crews were subject to regular changeovers during a shift. He confirmed that WOMA supplied the vacuum truck and two operators; one to operate the truck, and the other to check and maintain the line. His recollection was that a WOMA operator was often involved in clearing line obstructions. He stated that before the accident the hose suction inlet did not have a handle, nozzle or mesh, and there was a very powerful vacuum suction capacity. Training concerning the use of the vacuum hose was by way of on the job observation, the activity being demonstrated by WOMA employees. He stated that he was never instructed by WOMA not to pass the vacuum hose whilst it was in active suction mode, or to avoid the hose coming into contact with any part of the body. Mr Rachman confirmed that subsequent to the accident, hoses were modified by the fitting of a steel handled nozzle and a suction release valve. Modification took place within a week or two of the accident.
Stephen John Collins, a safety advisor with BHP Billiton, had been employed by Transfield as a trades assistant, and worked as a reactor rat. Mr Collins stated that initially iron fines were removed with the use of long handled picks and rakes and a small venturi system. That was not effective, and there was a change to the use of vacuum trucks provided by WOMA. Initially WOMA personnel operated the hoses inside the reactors, but as a result of industrial disputation Transfield employees took over the extraction of fines from the reactors using WOMA trucks; the change occurring about the middle of 1999.
Mr Collins said that there was no formal training on the use of vacuum hoses within the reactors, but there was "on the job training". His recollection was that he received training from Gavin Atkinson of WOMA which related mainly to the clearing of obstructions. He was advised not to allow any part of his body to come into contact with the suction inlet. Mr Collins stated that the vacuum truck was connected by hose to a stand pipe running up the side of the building, and hoses for use in the reactors were connected to cup links on the various levels. Generally when a blockage occurred the vacuum function would not be shut down because suction was required to assist in clearing the obstruction.
Mr Collins stated that following the accident there were modifications to the vacuum hose including the installation of a breaker box some 10 to 15 metres from the suction inlet. In addition a nozzle was fitted with handles and a narrower aperture, but it was uncomfortable and cumbersome. His recollection was that the nozzle was designed and constructed off site by WOMA. Initially mesh was fitted to the nozzle but was impractical as it impeded the required task. Mr Collins could not recall anyone giving instructions that the vacuum hose was not to be passed whilst under suction, although such an instruction was issued post‑accident. Subsequent to the accident he was called upon to and prepared a document "Procedures for vacuuming reactor plenum grid plate and under grid" (Exhibit 10). It makes no reference to not passing the hose when in active suction mode.
Michael Craig Kelleher was at the relevant time working for Hydrosweep at the HBI plant. He had only been there a short time, having been sent up to operate a vacuum truck. When on site he was directed as to the work to be undertaken by Gavin Lloyd Atkinson, an employee of WOMA. It appears from Mr Kelleher's evidence that there were two vacuum trucks on site; one owned by WOMA, and the other by Hydrosweep and under contract to WOMA. The WOMA truck had a much more powerful vacuum capacity. On the night of the accident Mr Kelleher was operating the WOMA vehicle and attending to line blockages. He stated that he went to assist the plaintiff unblock the hose, and having tried unsuccessfully to do so, passed it back to the plaintiff whose hand became caught in it. He was not able to describe how that happened. When questioned concerning the passing of the hose to the plaintiff, Mr Kelleher stated that the plaintiff was standing a metre or two to his right-hand side and he passed the hose sideways to, in front of, and with the suction inlet directed away from the plaintiff.
Mark Paul De Jesus was at the relevant time the operations manager for Hydrosweep and was responsible for supplying a vacuum truck and operators Kelleher and Hicks to WOMA. He stated that Hydrosweep did not have any supervisors on site, its operators being directed by WOMA.
Gavin Lloyd Atkinson was at the relevant time the nightshift supervisor for WOMA which was engaged in vacuum loading and sand and water blasting. He stated that it was his job to give instructions as to the work that the Hydrosweep operators were to do. Mr Atkinson thought that he was carrying out supervising duties on the night of the accident, but was prepared to accept that he was in fact sand blasting inside a reactor. He stated that having regard to the type of work being performed by Mr Kelleher on the night in question, there was no necessity for close supervision.
Donald Clarence McGillivray was employed by BHP Billiton as its HBI plant shutdown superintendent. He stated that WOMA's key role was cleaning reactors when in shutdown. Mr McGillivray stated that Transfield was engaged to supply total site maintenance and services, and WOMA was to supply cleaning services. Although he was not certain of the fact, it was his belief that WOMA contracted with BHP Billiton to supply such services.
Colin Michael Alexanderson was at the relevant time employed by Transfield as a senior supervisor at the HBI plant, having been so employed for about 18 months. He knew the plaintiff. Mr Alexanderson said that WOMA was carrying out vacuuming work on site, and provided vacuum trucks and persons to operate the trucks and assist the cleaning crew. One operator remained with the truck, and the other operator was involved in setting up the hoses and working with the vacuum team. The WOMA operators were in radio contact. He confirmed that prior to the start of a shift there would be a meeting of the employees involved in the shift for the purpose of allocating work and discussing requirements. He recalled that WOMA had supervisors on site to organise the setting up of the truck and hoses, and emptying the trucks.
The defendants have resolved the contribution issue, and the allegation of contributory negligence having been withdrawn consequent upon an agreement on quantum, the only matter remaining for determination is whether either or both of the defendants owed the plaintiff a duty of care, breached that duty, and whether the breach (if any) caused injury to the plaintiff.
The third defendant does not now suggest that the services of Mr Kelleher were transferred to the second defendant such that it became his employer, the evidence does not support it, and it is not so asserted by the plaintiff. In the result, if Kelleher was negligent, vicarious liability would attach only to the third defendant.
I am satisfied that at the material time the reactor cleaning was performed by Transfield using WOMA provided vacuum equipment. I do not accept Mr McGillivray's evidence that the position was otherwise.
The plaintiff was less than expansive when describing how his arm was drawn into the vacuum hose, and I formed the view that for whatever reason he was reluctant to say precisely what happened. I accept the essentially unchallenged evidence of Mr Kelleher that the suction inlet was directed away from the plaintiff as the hose was passed to him, and I am left to infer that some subsequent action by the plaintiff caused his arm to be drawn in by the suction force.
I am satisfied that the plaintiff was acutely aware of the necessity not to allow any part of the body to come into contact with the suction inlet. Not only does the plaintiff accept that, but the associated risks were obvious.
The plaintiff does not in the pleading assert, nor does the evidence establish, that Kelleher was negligent in the manner in which he passed the hose to the plaintiff, it being pleaded only that the third defendant failed to instruct him not to pass it to co-workers.
The duty of care pleaded in par 13 of the statement of claim as being owed by the third defendant to the plaintiff is "to take reasonable care for the safety of the plaintiff whilst he was engaged in carrying out his duties at the HBI plant for the first defendant (Transfield) not to expose the plaintiff to any risk of injury or damage of which Hughes (Hydrosweep) knew or should have known and/or to take reasonable measures to ensure its systems of work provided to and/or for the plaintiff was safe".
The negligence alleged against the third defendant in par 21 of the statement of claim is the same as that particularised against the second defendant in par 17.
The third defendant, having simply contracted to provide a vacuum truck and operators to the second defendant, there could be no expectation that it would, and it had no duty to train, warn or instruct the plaintiff as to the manner in which he would carry out the work he was performing for Transfield. It was not required to provide a system of work to and/or for the plaintiff. The responsibility for that was Transfield's. The evidence does not establish that the third defendant was the owner of or controlled the vacuum hose involved in the accident. It had no responsibility for its condition, and it was not negligent in failing to instruct Kelleher not to pass the active vacuum hose to another person.
The plaintiff has failed to establish that the third defendant owed him a duty of care and/or was negligent.
I turn to a consideration of the plaintiff's claim against the second defendant.
The plaintiff asserts in par 9B of the statement of claim that it was the duty of the second defendant "to take reasonable care for the safety of the plaintiff whilst he was engaged in carrying out his duties at the HBI plant for the first defendant, not to expose the plaintiff to any risk of injury or damage of which WOMA, its servants or agents knew or should have known and to take reasonable measures to ensure the system of work provided to and/or for the plaintiff was safe". The alleged duty is in terms similar to that pleaded as owed to the plaintiff by his employer Transfield, and by the third defendant.

To succeed against the second defendant it is necessary that the plaintiff establish that it owed him a duty of care; that it was in breach of that duty; that the breach was causative of the accident; and that the accident was foreseeable.
It would necessarily have been in the contemplation of the second defendant that the vacuum facility provided to Transfield, and particularly the vacuum hose, would be used by Transfield employees in cleaning out the reactors, and that negligence on its part may cause injury or damage to them. There was therefore a duty owed, but the extent of that duty was not as expansive as formulated by the plaintiff. The second defendant had a duty to provide a vacuum facility suitable for the purpose, which did not constitute risk of injury to those exercising proper care in its use. The second defendant was entitled to expect that the persons using the vacuum hose would be instructed as to and competent in its use, and be properly supervised by Transfield. The vacuum hose was suitable for the purpose under these conditions. The possibility of injury occurring in the presenting circumstances was not reasonably foreseeable. In any event the plaintiff having failed to satisfy me as to how and why his arm was drawn into the suction inlet, it is not be possible to identify a relevant breach, and causally relate the incident to it.
The plaintiff points to post-accident modifications to the suction hose, and particularly to the suction inlet, as proof of negligence on the part of the second defendant. That evidence does no more than demonstrate subsequent steps taken to prevent another occurrence. It does not establish breach of duty by the second defendant.
The plaintiff's claim against the second defendant fails.