Kuhl v Zurich Financial Services Australia Ltd - [2010] WASCA 50

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KUHL -v- ZURICH FINANCIAL SERVICES AUSTRALIA LTD [2010] WASCA 50

CORAM: MARTIN CJ
WHEELER JA
NEWNES JA

HEARD: 11 NOVEMBER 2009

DELIVERED : 24 MARCH 2010

FILE NO/S: CACV 16 of 2009

BETWEEN: GEOFFREY LAWRENCE KUHL
Appellant
AND
ZURICH FINANCIAL SERVICES AUSTRALIA LTD
First Respondent
QBE INSURANCE (AUSTRALIA) LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
Citation  :KUHL -v- ZURICH FINANCIAL SERVICES AUSTRALIA LTD on behalf of WOMA (AUSTRALIA) PTY LTD (deregistered company) & ANOR [2009] WADC 4
File No  :CIV 2419 of 2004

Catchwords:

Negligence - Industrial accident - Labourhire company provided workman to contractor on site - Whether labourhire company owed duty of care to employees of other contractors - Whether subcontractor owed duty of care to employees of principal contractor - Whether changes to equipment made after accident establish breach of duty

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr B L Nugawela
First Respondent           :     Mr J R Criddle
Second Respondent      :     Mr J R Criddle

Solicitors:

Appellant:     Taylor Smart
First Respondent           :     SRB Legal
Second Respondent      :     Jarman McKenna

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

Brito v Fairfield City Council [2000] NSWCA 215
Commissioner of Railways v Ruprecht [1979] HCA 37, (1979) 142 CLR 563
Kuhl v Zurich Financial Services Australia Ltd [2009] WADC 4
Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201
Stevens v Brodribb (1986) 160 CLR 16
Sungravure Pty Ltd v Meani 1964] HCA 16, (1964) 110 CLR 24

MARTIN CJ: I agree with Newnes JA.
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Newnes JA. I adopt his Honour's outline of the facts, and agree with his conclusions concerning the claim against Hydrosweep. However, I have reached a different conclusion in relation to the claim against WOMA. Although the grounds of appeal are diffuse, difficult to follow, and give an emphasis to the alleged need for a "safe system" of work which is clearly unwarranted, it is my view that grounds 4(a) and (c), 5, and 6(a) sufficiently identify an error (or perhaps two errors) which should result in the appeal being allowed. My reasons are as follows.

Additional facts

It seems to have been assumed on all sides that WOMA supplied not only the trucks, but also the vacuum hoses. In that context, it is necessary to mention a few facts which are relevant to the conclusion.
The hoses, at the time of Mr Kuhl's accident, were approximately 6 inches in diameter (Kuhl 53 GAB; Rogosic 89 GAB; Rachman 104 GAB). They were flexible (Rogosic 89 GAB), hard to hang onto and awkward to handle (Kuhl 53 GAB). The amount of suction produced was very powerful, being: "a lot of suction" (Kuhl 56 GAB); powerful enough to suck up briquettes (Rogosic 88 GAB); probably "50 times [more] powerful than a normal vacuum cleaner" and capable of picking up "big boulders" too big to pass through the 6‑inch inlet (Rachman GAB 105). The suction was so powerful that, when Mr Kuhl's arm was pulled in, neither he nor another worker could pull it out. The hoses were "pretty heavy" (Collins GAB 115). They had, it was common ground, no handles, no grille, grate, or divider plate or plates in the intake, and no "break box" or switch to cut off or reduce the suction near the intake.

Relevant pleadings

The appellant's pleadings, in relation to WOMA, included a pleading that it was negligent in:
17.5failing to fit a protective mesh guard over the mouth of the hose of the vacuum unit;
17.6failing to ensure the vacuum unit was fitted to [sic] with an emergency stop or disconnect device;
17.7failing to instruct its employees not to pass the operating vacuum unit to co‑workers;

17.8failing to equip the vacuum unit with a handle or holding device to facilitate manual handling of the hose of the vacuum unit;

WOMA appears to have accepted, in its pleading, that there was a risk attached to passing the hose while it was in operation, since it alleged that the appellant was negligent in that he "failed to ensure the vacuum unit was switched off before he took hold of the hose".

His Honour's findings

The relevant portion of his Honour's reasons reads as follows:
30The 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.
31I 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.
...
39To 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.
40It 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.
41The 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.
It appears to me, with respect, that his Honour's errors in these paragraphs concern causation, foreseeability, and perhaps the formulation of the duty of care owed by WOMA. They appear to be errors of fact, rather than law, although because of the brevity of the reasoning it is difficult to discern precisely how they arose. I deal with each in turn.

Causation

His Honour seems to have considered that it was necessary for the appellant to establish the precise physical mechanism by which his arm became pulled into the hose. However, in my view, that was not necessary.
His Honour accepted Mr Kelleher's evidence that he had passed the hose to the appellant with the nozzle pointing away from the latter. Although he considered the appellant was "reluctant" to say precisely what had happened, he did not find either that the appellant had deliberately placed himself in harm's way or that he had performed some manoeuvre which no reasonable person could have anticipated. Nor would it have been proper for him to have done so, since no such proposition was put to the appellant (even obliquely) during the trial.
The only inferences open, then, appear to be that, in the process of passing a heavy, awkward hose, with very powerful suction, the appellant: misunderstood how Kelleher expected him to take it (it being too noisy for express verbal communication); or took it clumsily; or slipped; or simply misjudged how far away his arm should be in order to avoid getting caught.

Foreseeability

I regret to say that I do not understand how his Honour reached the conclusion that the risk of injury in the "presenting circumstances" was not reasonably foreseeable, and I do not think that view was correct. Operators of the hose must be assumed to take reasonable care for their own safety. However, occasional and temporary inadvertence, lapses of attention, and so on, are possible, even for a reasonable and prudent operator, when operating heavy, awkward, noisy machinery (as this was): Commissioner of Railways v Ruprecht [1979] HCA 37, (1979) 142 CLR 563; Sungravure Pty Ltd v Meani [1964] HCA 16, (1964) 110 CLR 24 at 33, 37 ‑ 38.
It was plainly foreseeable that an arm could be drawn into the hose, given the force of the suction, and the fact that the aperture contained no physical obstacle. Indeed, as his Honour noted at [31], those risks were "obvious". It is equally clear that, if the suction had been turned off or substantially reduced, the risk would not have materialised.
There was some discussion, at the hearing of the appeal, about whether it was foreseeable that the risk of a person coming into contact with the nozzle would be increased if the hose was passed while "under load". In my view, the passing of the hose did increase the danger, just as one might expect that it is more dangerous to accept a chainsaw from another person whilst the saw is in operation, than to operate it oneself. The risks of a slip or clumsy movement are increased because there are more people involved in the movement and, of course, there are risks of "miscommunication" about the way the manoeuvre is to be performed.
In any event, it seems to me that it would be enough, in this case, to find that there are risks inherent in operating a hose of this kind; that the most obvious risk is that of a body part being sucked into the nozzle; and that there were reasonably practicable means of designing the hose so as to eliminate or reduce those risks, or to reduce the severity of the likely consequences of such an event.

The duty of care

His Honour accepted that WOMA owed the plaintiff a duty to provide a vacuum facility suitable for the purpose, which did not constitute a risk of injury to those exercising proper care in its use. That finding is not the subject of any cross‑appeal or notice of contention.
Because of the views I have expressed in relation to foreseeability, it appears to me that the duty was, specifically, to provide a hose that either:
(a)physically blocked the intake, so that a body part could not be sucked in;
(b)provided a "break" valve to reduce or stop the suction; or
(c)was less awkward to use and to pass, eg, by providing a handle.

If, on the view I prefer, the foreseeable risk increased when the hose was passed under load, as in this case, modification (c) would reduce the risk, (b) would allow the load to be reduced or stopped when the hose was passed, while the benefits of (a) are obvious. So far as a worker operating the hose alone (ie, not passing it) is concerned, both (a) and (c) would reduce the risk of operation, while (b) would at least ensure that extricating a trapped limb would be easier than it was for the appellant.
The above possible courses of action were all open to WOMA. Post‑accident, all were in fact tried. Option (a) in the form of a grate, was not practical in the long‑term, as the fines were too difficult to pick up, and so abrasive that they wore the plate. The handle designed post‑accident proved to have ergonomic problems, and there was no evidence concerning the practicability of some other type of handle. The "break box", however, was described by the witness Mr Collins as a "really good safety device", useful for dealing with blockages and when the hoses had to be moved around (122 GAB). There was no evidence that the break box caused any difficulty, or involved significant expense.
In my view, a hose reasonably fit for the intended purpose would have included such a break box, and his Honour should have so found. I would allow the appeal, so far as it concerns the first respondent.
NEWNES JA: This is an appeal against a decision of Wisbey DCJ in the District Court, dismissing the appellant's claim in negligence against the respondents: Kuhl v Zurich Financial Services Australia Ltd [2009] WADC 4.
The appellant (Mr Kuhl) was injured at work on 19 November 1999 when his left arm was drawn into the suction inlet of a vacuum hose while cleaning a reactor grid floor at the BHP HBI plant in Port Hedland (the plant). The vacuum unit to which the hose was attached, and the truck on which the unit was mounted, were owned by WOMA (Australia) Pty Ltd (WOMA), and controlled by Mr Kelleher, an employee of Hydrosweep Pty Ltd (Hydrosweep). Mr Kuhl was employed by Transfield Construction Pty Ltd (Transfield).
Both WOMA and Hydrosweep were subsequently deregistered. At the relevant time, WOMA was insured by the first respondent and Hydrosweep was insured by the second respondent. The action was brought against those insurers pursuant to s 601AG of the Corporations Act 2001 (Cth).

Background

In September 1999, Mr Kuhl commenced employment with Transfield as a trades assistant at the plant. Mr Kuhl's employment principally involved cleaning the floors of the reactors at the plant. The number of Transfield employees who at any one time would be engaged in cleaning a particular reactor varied from two to five. Those employees were known as 'reactor rats'. A Transfield employee (known as the 'hole watcher') monitored the reactor's activity.
The cleaning of a reactor involved manually breaking up any solidified fines on the grid floor using a jack hammer and shovel, and then extracting the broken down materials using a vacuum hose. The vacuum hose was connected to a stand pipe, which in turn was connected by hose to a vacuum truck. The truck was positioned some 50 to 60 metres from the reactor. Once the truck was full it would take the material to another site.
From time to time the vacuum hose would become blocked with waste material. It was the practice to attempt to clear it by striking it with an object such as a hammer or spade. If that was unsuccessful, a 'reactor rat' would notify the hole watcher, who would call the vacuum unit operator to assist in clearing the blockage. If the blockage was some distance down the hose it was sometimes necessary to break the hose and reverse the suction to clear the blockage. Generally it was not the practice to shut down the vacuum unit when a blockage occurred because suction was required to clear the blockage.
On 19 November 1999, Mr Kuhl was vacuuming the reactor grid floor using a hose connected to a vacuum unit owned by WOMA and mounted on a WOMA truck. The vacuum hose was a flexible hose with a diameter of 10 to 15 cm (described in evidence as 4 to 6 inches). The truck and vacuum unit were controlled by a workman, Mr Kelleher, who had been made available to WOMA by Hydrosweep. Mr Kelleher was under the supervision of a WOMA supervisor, Mr Atkinson. Hydrosweep had also supplied to WOMA a truck fitted with a vacuum unit but that was not in use at the time of the accident.
At about 4.30 am, a blockage occurred in the vacuum hose Mr Kuhl was using. Mr Kuhl endeavoured to clear the obstruction. While he was doing so, Mr Kelleher appeared and took over that task. Having indicated that the blockage had been cleared, Mr Kelleher passed the vacuum hose back to Mr Kuhl. Mr Kuhl's left arm was then drawn into the hose. The precise manner in which that occurred did not emerge from the evidence.
Mr Kuhl suffered sustained injuries to his left upper limb as a result of the accident. He suffers pain, discomfort and restricted movement in his left shoulder, arm and wrist and has permanent scarring.

The pleaded case

Mr Kuhl alleged that the accident was caused by the negligence of WOMA and Hydrosweep. Mr Kuhl's claim against Transfield, his employer, was statute barred.
In the statement of claim, Mr Kuhl pleaded that at the relevant time Transfield provided maintenance services at the plant, that WOMA provided equipment and personnel to Transfield for that purpose, and that Hydrosweep provided equipment and personnel to WOMA to enable WOMA to meet its obligations to Transfield.
It was pleaded that at the time of the accident, WOMA had supplied a truck with a mounted vacuum unit for use by workers at the plant and had a supervisor at the plant to supervise maintenance work being undertaken pursuant to its agreement with Transfield. It was alleged that as the supplier of the truck and through its supervisor, WOMA had control over the use of the vacuum unit, which was being operated by a Hydrosweep employee or agent, Mr Kelleher.
Mr Kuhl alleged that WOMA and Hydrosweep were under a duty 'to take reasonable care for the safety of [Mr Kuhl] while he was engaged in carrying out his duties at [the plant] for [Transfield], not to expose [Mr Kuhl] to any risk of injury or damage which [they] knew or should have known/or to take reasonable measures to ensure the system of work provided to and/or for [Mr Kuhl] was safe'.
Mr Kuhl alleged that each of WOMA and Hydrosweep was negligent, among other things, in failing to:
(a)warn him of the danger of body contact with the suction inlet;
(b)ensure he was adequately trained in the proper operation of the vacuum hose;
(c)instruct him in the safe operation and handling of the vacuum hose;
(d)instruct its employees not to pass the operating unit to co‑workers;
(e)supervise its worker operating the unit; and
(f)provide a vacuum hose with a protective mesh guard over the suction inlet, an appropriate grip handle, or the capacity to terminate suction.

The primary judge's decision

The only issue before the primary judge was liability, quantum having been agreed before the trial.
The primary judge outlined the circumstances of the accident and summarised the evidence of the principal witnesses as to organisation of the work and the role played by each of Transfield, WOMA and Hydrosweep. His Honour rejected the evidence of the plant shutdown supervisor, Mr McGillivray, that WOMA was responsible for cleaning the reactors and found that at the relevant time the reactor cleaning was being performed by Transfield using vacuum equipment provided by WOMA.
The primary judge dismissed the claim against Hydrosweep. His Honour noted that it was not alleged (nor, his Honour found, did the evidence establish) that Mr Kelleher was negligent in the way he passed the vacuum hose to Mr Kuhl. Mr Kuhl's case was that Hydrosweep was negligent in failing to instruct Mr Kelleher not to pass it to co‑workers. His Honour referred to the duty of care pleaded by Mr Kuhl and continued:
[Hydrosweep], having simply contracted to provide a vacuum truck and operators to [WOMA], there could be no expectation that it would, and it had no duty to train, warn or instruct [Mr Kuhl] 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 [Mr Kuhl]. The responsibility for that was Transfield's. The evidence does not establish that [Hydrosweep] 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 [35].

The primary judge held that Mr Kuhl had failed to establish that Hydrosweep owed a relevant duty of care to him.
His Honour then turned to the claim against WOMA. He rejected the duty of care pleaded by Mr Kuhl. His Honour found, however, that WOMA owed Mr Kuhl a duty of care to provide a vacuum unit which was suitable for use by Transfield employees in cleaning out the reactors and which did not present a risk of injury to those exercising proper care in its use. That duty was owed because it would necessarily have been in the contemplation of WOMA that the vacuum hose provided to Transfield would be used by Transfield employees in cleaning out the reactors, and that negligence on its part may cause injury or damage to them.
His Honour concluded that WOMA was entitled to expect that the persons using the vacuum hose would be properly instructed and supervised in its use by Transfield and he found that in those circumstances the vacuum hose was suitable for its use. He also found that the possibility of injury occurring in the circumstances of this case was not reasonably foreseeable. In addition, the primary judge was not satisfied as to how and why Mr Kuhl's arm was drawn into the suction inlet and therefore found that he could not identify a relevant breach and causally relate the accident to it. In that connection, his Honour had earlier commented that Mr Kuhl was 'less than expansive when describing how his arm was drawn into the vacuum hose' and he had formed the view that 'for whatever reason, [Mr Kuhl] was reluctant to say precisely what happened' [30].
The primary judge found that post‑accident modifications to the vacuum hose made by WOMA did no more than demonstrate subsequent steps taken to prevent another accident; they did not establish any negligence on the part of WOMA.
Mr Kuhl's claim against WOMA was dismissed.

Grounds of appeal

Mr Kuhl appeals against the decision of the primary judge on six grounds. The grounds of appeal are lengthy and the substance of them can be sufficiently summarised as follows:
1.the primary judge erred in finding that, at the relevant time, Transfield was responsible for reactor cleaning, when he should have found that WOMA was in charge of the cleaning of the reactors;
2.the primary judge erred in finding that:
(a)Mr Kuhl was reluctant to say precisely how his arm was drawn into the vacuum hose;
(b)Mr Kelleher directed the vacuum hose away from Mr Kuhl when passing it to him; and
(c)some subsequent action by Mr Kuhl caused his arm to be drawn into the vacuum hose,
when such findings were not supported on the evidence. The evidence established that Mr Kelleher was negligent in the manner in which he passed the vacuum hose to Mr Kuhl;
3.the primary judge erred in finding that Hydrosweep did not owe a duty of care to Mr Kuhl, was not vicariously liable for Mr Kelleher's negligence, and was not negligent in failing to instruct Mr Kelleher not to pass the active vacuum hose to another person;
4.the primary judge erred:
(a)in failing to find that WOMA owed a duty of care to Mr Kuhl to prescribe a safe system of work and to provide safe plant where WOMA was in control of the work of vacuuming up the fines in the reactor; and
(b)in finding that WOMA was entitled to expect that the persons using the vacuum hose would be competent in its use and properly supervised by their employer, and that the hose was suitable for its use under those conditions; and
(c)in failing to find that WOMA had breached its duty of car;
5.the primary judge erred in finding that the possibility of the injury occurring in the circumstances was not reasonably foreseeable, his Honour having applied the wrong test of foreseeability;
6.the primary judge erred in failing to find that the post‑accident modifications made by WOMA established that it was negligent.

The disposition of the appeal

It is necessary at the outset to identify the role of each of Transfield, WOMA and Hydrosweep in relation to the work being carried out by Mr Kuhl at the time the accident occurred.
The appellant contended that the primary judge erred in finding that the cleaning of the reactor was being performed by Transfield; his Honour should have found that WOMA was performing the work. It was argued that the primary judge wrongly rejected the uncontradicted evidence of Mr McGillivray that WOMA was responsible for cleaning the reactors and that WOMA had contracted with BHP Billiton to provide those services. It was submitted that the evidence of Transfield's senior supervisor at the plant, Mr Alexanderson, also supported a finding that WOMA was responsible for cleaning the reactors. It was further submitted that the primary judge erred in failing to give reasons for rejecting the evidence of Messrs McGillivray and Alexanderson.
The precise contractual arrangements between BHP Billiton, Transfield and WOMA was never clearly explained in the evidence, although a number of witnesses gave oral evidence about the respective roles of Transfield, WOMA and Hydrosweep in connection with the vacuuming of the reactors. Apart from a purchase order issued by WOMA to Hydrosweep for the hire of two workmen and a vacuum truck, there was no documentary evidence of the arrangements. All of the witnesses who gave evidence at the trial were called by Mr Kuhl. No evidence was called by WOMA or Hydrosweep.
Mr McGillivray gave evidence that WOMA's role 'was to do the reactor cleaning' which required 'the vacuuming out of the reactors once they were in shutdown' (ts 6). In cross-examination, Mr McGillivray said that Transfield had been engaged by BHP Billiton to supply total site maintenance, including maintenance required to be undertaken in the reactors as part of the shutdown of the plant. He said WOMA predominantly supplied 'vacuuming type services' but he could not recall whether WOMA had contracted with BHP Billiton or WOMA to provide those services (ts 12).
Mr Alexanderson's evidence was that Transfield 'had the maintenance contract at the plant' and WOMA was principally engaged to vacuum out fines from reactors and vessels (ts 27). He explained that the vacuuming was done by WOMA trucks manned by WOMA personnel. One WOMA employee would operate the truck and the other would be with the cleaning crew at the reactor. The latter WOMA employee would be involved in setting up hoses or may work with the team vacuuming the fines (ts 28). Mr Alexanderson said that some Transfield employees had been given to WOMA to assist in vacuuming the floor (ts 31). According to Mr Alexanderson, WOMA 'had their team and they'd clean the [reactor] floor' (ts 33).
Mr Kuhl gave evidence that at the time of the accident he was employed by Transfield as a trades assistant. He commenced working at the plant in September 1999 and until the time of the accident was principally engaged in cleaning the reactors. He said that throughout that time the cleaning of the reactors was done by Transfield employees (ts 13). In addition to those doing the cleaning, a Transfield employee, known as the 'hole watcher', was stationed outside the reactor to monitor the employees doing the cleaning and to do gas tests on the reactor. Mr Kuhl said that before each shift there was a meeting of the Transfield employees with a Transfield supervisor to allocate jobs for the shift and to discuss any safety issues (ts 32 ‑ 33). Mr Kuhl said he signed a job safety analysis (JSA) before he started work on each shift.
Mr Kuhl's supervisor, Mr Rogosic, a Transfield employee, gave evidence that the cleaning of the fines from the reactors was carried out by Transfield (ts 58). He said that the vacuum hoses were stored and connected up for use by WOMA operators, who also operated the trucks, but the cleaning of the reactors with the vacuum hose was done by Transfield employees. It was the responsibility of WOMA operators to clear blockages of the hose but the Transfield employees in the reactor would often try to clear a blockage (ts 60 ‑ 61).
Mr Rogosic gave evidence that on the nightshifts, on which he principally worked, before the start of each shift the Transfield night-shift supervisors and the Transfield day-shift supervisors would have a meeting for hand-over purposes. That would be followed by a pre-start meeting of the workers who were to be engaged on the cleaning. Occasionally other people would attend the supervisors' meeting. The pre-start meetings were attended only by Transfield employees (ts 56). Mr Rogosic said the JSA used on the job was a Transfield document.
Mr Rachman was a Transfield employee who was involved in cleaning the reactors at the time. He gave evidence that the cleaning of the reactor was carried out by Transfield employees (ts 78). He said two WOMA employees were on site, one operating the truck and the other finding and clearing blockages in the lines (ts 77). That was also the evidence of Mr Kelleher (ts 112).
Mr Collins, who was a Transfield safety representative at the time of the accident, gave evidence that initially WOMA operators had vacuumed inside the reactors but in about the middle of 1999, following a dispute over who should do the work, it was taken over by Transfield employees and WOMA agreed to supply the equipment (ts 87, 108 ‑ 109). Mr Collins also gave evidence that after the accident he prepared, on behalf of Transfield, a written procedure which set out more detailed safety requirements including a direction not to place any part of the body in front of the nozzle when under load.
Evidence as to the role of Hydrosweep was given by Mr De Jesus who was the operations manager for Hydrosweep at the relevant time. Mr De Jesus said that in November 1999 Hydrosweep entered into a contract to supply WOMA with a vacuum truck and two men for a period of four weeks, to do 'some vacuum loading in the shutdown'. A purchase order dated 8 November 1999 from WOMA to Hydrosweep for the supply of the truck and two men was admitted into evidence. Mr De Jesus said that Hydrosweep did not have any supervisors on site and the work of the two men provided by Hydrosweep operators was to be supervised by WOMA.
Mr Atkinson was the night shift supervisor employed by WOMA. He said in evidence that he gave instructions to the two Hydrosweep staff as to the work they were to do (ts 121). He confirmed that there was no supervisor from Hydrosweep on site.
In my view, on the evidence as a whole it was plainly open to the primary judge to find that at the time of the accident Transfield was carrying out the cleaning of the reactor. It was clear that since at least September 1999 the vacuuming of the fines had been carried out by Transfield employees under Transfield's control and supervision. It was Transfield which controlled the system of work used by its employees in carrying out that work. Although WOMA was responsible for setting up the vacuum hose and clearing blockages in it, there was no evidence that WOMA had, or purported to exercise, any authority to supervise or direct the Transfield employees in the work of cleaning the reactors.
The evidence of Mr McGillivray, in my view, was quite unhelpful on this issue. In the circumstances, his evidence that WOMA 'was to do the reactor cleaning' and 'the vacuuming out of the reactor' was so vague as to be of no real assistance. It is also to be viewed in the context of Mr McGillivray's inability to recall whether WOMA had contracted with BHP Billiton or Transfield. The evidence of Mr Alexanderson was similarly in such general terms as to be of little assistance. While his Honour does not expressly say so, it is, I think, quite clear from his reasons that he rejected their assertion that WOMA was carrying out the vacuuming because he considered that on the evidence as a whole the assertion was plainly unsustainable - as in my view, it was.
I would therefore reject the challenge to the primary judge's finding that the work in which Mr Kuhl was engaged when the accident occurred was being carried out by Transfield.
It is also clear, in my view, that Hydrosweep simply contracted to provide a vacuum truck and two men for the use of WOMA. There was no evidence that Hydrosweep knew the precise nature of the work upon which the men would be engaged. That was left to WOMA. On the evidence of Mr De Jesus, Hydrosweep knew only that the vacuum truck and the two men would be involved in 'some vacuum loading in the shutdown'. Nor was there any evidence that the vacuum hose in which Mr Kuhl's arm became caught was owned or supplied by Hydrosweep.
It is necessary, against that background, to turn to the findings on liability of the primary judge which are challenged on the appeal. It is convenient to deal first with the dismissal of the claim against Hydrosweep. His Honour's findings were as follows:
[Hydrosweep], having simply contracted to provide a vacuum truck and operators to [WOMA], there could be no expectation that it would, and it had no duty to train, warn or instruct [Mr Kuhl] 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 [Mr Kuhl]. The responsibility for that was Transfield's. The evidence does not establish that [Hydrosweep] 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.
[Mr Kuhl]has failed to establish that [Hydrosweep] owed him a duty of care and/or was negligent [35] ‑ [36].
It is contended by ground 3 of the grounds of appeal that his Honour erred in finding, first, that Hydrosweep did not owe a duty of care to Mr Kuhl; secondly, that it was not vicariously liable for Mr Kelleher's negligence; and thirdly, that it was not negligent in failing to instruct Mr Kelleher not to pass the active vacuum hose to another person. The substance of Mr Kuhl's case was that his Honour ought to have found that the accident was caused by the act of Mr Kelleher in passing the vacuum hose to Mr Kuhl while it was under suction. It was argued that Hydrosweep was liable for the accident either because it ought to have, but had not, instructed Mr Kelleher not to pass a vacuum hose to a co‑worker while it was under suction, or because Hydrosweep was vicariously liable for Mr Kelleher's negligence.
The second of those contentions is plainly without foundation. Mr Kuhl did not allege a case of vicarious liability against Hydrosweep. Mr Kuhl's case at trial was based on the negligence of Hydrosweep in failing to instruct Mr Kelleher not to pass a vacuum hose to a co-worker while it was under suction.
In support of the contention that Hydrosweep owed Mr Kuhl a duty to so instruct Mr Kelleher, counsel referred to Stevens v Brodribb (1986) 160 CLR 16, and in particular to the following passage in the judgment of Brennan J:
An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk … and his duty is more limited than the duty owed by an employer to an employee [47].
It was submitted that Hydrosweep was an entrepreneur engaged in the vacuum cleaning because it had provided its employee, Mr Kelleher, to WOMA to work on that task and accordingly it owed a duty to use reasonable care in organising that activity to avoid or minimize the risk of injury involved. In this case, it was submitted, that duty required Hydrosweep to instruct its employees not to pass a hose under suction to a co-worker.
In the circumstances, I am unable to see any basis for the duty for which Mr Kuhl contends. It does not seem to me that anything said in Brodribb supports it. Brodribb was concerned with whether a principal owed to subcontractors it had engaged to carry out a task a duty of care to ensure a safe system of work. That is not this case. In this case, Hydrosweep was not involved in the work of vacuuming the reactors. It played no part in undertaking or organising that work. It did not give directions in respect of, or have any control over, the work or how it was done. The workmen carrying out the vacuuming in the reactor were employees of Transfield and under its control and supervision. Hydrosweep had supplied Mr Kelleher and another workman to WOMA but the responsibility for the direction and supervision of those men was assumed by WOMA. The only evidence as to Hydrosweep's knowledge of the work in which Mr Kelleher was to be engaged was the evidence of Mr De Jesus that the two men and the truck were to be used by WOMA for 'some vacuum loading in the shutdown'. There was also no evidence that Hydrosweep owned or had supplied the vacuum hose being used at the time the accident occurred.
In my view, the primary judge correctly found that Hydrosweep was not under a duty to Mr Kuhl to provide a safe system of work and that it was not negligent in failing to instruct Mr Kelleher not to pass a vacuum hose under pressure to a co-worker. The appeal against the dismissal of the claim against Hydrosweep must fail.
It is necessary then to turn to the claim against WOMA. The findings of the primary judge were as follows:
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 [39] ‑ [40].
Mr Kuhl attacks both the finding as to the duty of care and his Honour's conclusion that Mr Kuhl had not established that his injuries were caused by any breach of care on the part of WOMA.
As to the first of those, it was submitted that the primary judge should have found that WOMA exercised control of, or retained a right to control and supervise, the cleaning of the fines from the reactors and the plant used, and accordingly it owed to Mr Kuhl a duty to prescribe a safe system of work and to provide safe plant. Such a finding, it was said, was consistent with the approach taken by the High Court in Brodribb.
The difficulty with that submission is that it, too, proceeds upon the basis that WOMA organised and was responsible for supervising the vacuuming of the fines out of the reactor. For the reasons set out above, it was plainly open to the primary judge to find, as his Honour did, that that was not the case. On the evidence, that work was under the control of Transfield. WOMA had supplied the vacuum truck and hoses, and two operators; one at the truck and the other to check the hoses and clear blockages. But the work of vacuuming the reactor was under the control of Transfield and, as I have said, there was no evidence that WOMA had, or purported to exercise, any authority to supervise or direct the Transfield employees in that work.

A duty to provide a safe system of work clearly fell on Transfield. The evidence did not establish such a duty of care on the part of WOMA. In the circumstances, I do not consider that the primary judge erred in finding that WOMA did not owe the alleged duty of care.
It was further submitted on behalf of Mr Kuhl that WOMA was, in any event, under a duty to instruct Mr Kelleher not to pass the hose to another worker while it was under pressure. It was submitted that given the force of the suction, the fact that the vacuum hose was awkward to handle, and that it did not have a handle or any means by which the person using it could shut off the pressure, it was reasonably foreseeable that a person would be injured if the hose was passed from one person to another while under pressure. Simple and inexpensive measures by WOMA could have overcome that risk.
I should say that while that case was not pleaded, or at least clearly pleaded, it appears that such a case was put to the primary judge by counsel for Mr Kuhl below without objection by WOMA. It is necessary, however, to emphasise that it was not Mr Kuhl's case that Mr Kelleher passed the hose in a negligent manner, but rather that the passing of a hose under pressure itself gave rise to a risk of injury and accordingly gave rise to a duty upon WOMA to instruct Mr Kelleher not to do it.
In argument on the appeal, counsel for WOMA accepted that if it was foreseeable that there was an increased risk of injury arising from passing the hose when under load then WOMA owed Mr Kuhl a duty to instruct Mr Kelleher not to do it. WOMA argued, however, that there was no evidence that the passing of a hose under pressure gave rise to a foreseeable risk of injury over and above that necessarily involved in the use of the hose in the ordinary course of vacuuming the reactor. There was no evidence that the hose under pressure exhibited any different characteristics to the hose when it was not under pressure. For instance, there was no evidence that pressure caused the hose to writhe or otherwise move under its momentum which may have made the handing over of the hose under pressure more hazardous. The risk of injury only arose if a worker failed to keep his body away from the suction end of the hose. The alleviation of that risk was the responsibility of Transfield who had control of the work of vacuuming the reactor floor.
In my view, Mr Kuhl failed to make out a case that WOMA was negligent in failing to instruct Mr Kelleher not to pass the hose while it was under pressure. The risk of injury from coming into close proximity to the suction end of the hose risk was obvious and, as his Honour found, Mr Kuhl was acutely aware of it. There was no evidence of a greater risk that a person's body would come into closer proximity to the suction end inherent in passing it under pressure from one worker to another than in the ordinary operation of the hose, even if it was dropped. There was, as counsel for WOMA submitted, no evidence that the hose under pressure was not inert but was prone to significant or sudden movement caused by the pressure which would have made the handing over of the hose more hazardous, nor was there evidence of any other characteristics that were likely to lead to an increased risk of injury. Had the hose had any such characteristics it would have been a simple matter for Mr Kuhl to have led evidence of them. There was no such evidence.
In argument on the appeal, counsel for Mr Kuhl contended that it was a matter of commonsense that there was an increased risk of injury inherent in one worker passing the hose under load to another. I do not agree. The risk of injury arose if a person's body came into close proximity to the suction end. That simply required anyone handling the hose or in its vicinity to ensure that they avoided the suction end. There was no evidence that the risk of coming into close proximity to the suction end was increased simply because the hose under pressure was passed from one worker to another.
The fact that Mr Kuhl's injury occurred immediately after the hose was passed to him does not enable any inference to be drawn which might assist Mr Kuhl's claim. One of the surprising features of this case is that nowhere in the evidence is there any explanation of precisely how it was that Mr Kuhl's arm came to be caught in the hose. In circumstances where it was not suggested by Mr Kuhl that he was unable to recall the relevant events, his evidence was inexplicably vague. Having given evidence that he was trying to clear a blockage in the hose when Mr Kelleher arrived, Mr Kuhl gave the following evidence:
And what did Mr Kelleher do when he arrived?---Well, he had a few hits and messed around with the hose and then said it was - you know, indicated it was all right, then passed it back.
…
All right. What happened when the hose was handed back towards you?‑‑‑My arm was caught in it, in the end, opening of it, whatever you want to call it.
What was the physical action?---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.
Which arm---Left, sucked in.
And how far was your left arm sucked into the hose?---Up to my shoulder (ts 25 ‑ 26).
That was the extent of his evidence in relation to accident itself. He then dealt with the endeavours made to free his arm.
Mr Kelleher was called by Mr Kuhl to give evidence. Mr Kelleher's evidence, which was not contradicted and which the primary judge accepted, was that he passed the hose sideways and in front of Mr Kuhl with the suction end pointing away from Mr Kuhl. He did not see how Mr Kuhl's arm came to be drawn into the hose.
In the circumstances, it is understandable that the primary judge considered that the truncated and vague description of the event given in evidence by Mr Kuhl was unsatisfactory and inferred that some subsequent action by Mr Kuhl had caused his arm to be drawn into the hose.
I should note in passing that in his written submissions on ground 3 of the grounds of appeal, counsel for Mr Kuhl challenged his Honour's acceptance of Mr Kelleher's evidence as to how he passed the hose to Mr Kuhl. It was submitted that Mr Kelleher's evidence on that point contained inconsistencies and therefore should not have been accepted by the primary judge. It was not clear whether that position was maintained on the hearing of the appeal but I should say that, in my view, the submission is entirely without merit. There were no material inconsistencies in Mr Kelleher's evidence.
It was finally contended by Mr Kuhl that the primary judge erred in not finding that the modifications to the vacuum hose made after the accident did not establish negligence on the part of WOMA.
After the accident, two modifications were made to the vacuum hose. A solid nozzle with a handle was fitted to the suction end of the hose, and near the top of the nozzle a valve was fitted which could be opened to allow air in so as to break the suction effect at the inlet end of the nozzle. It also appears that at some stage mesh was fitted to the open end of the nozzle but that was soon abandoned when it was found that the mesh unduly restricted the capacity of the hose to pick up fines and that it quickly wore out due to the abrasive nature of the fines (ts 98).
It is well-established that changes made after an accident may indicate that there existed at the time of the accident a practicable method by which the risk which came to pass could and should have been reduced or eliminated: Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201. But the fact that changes were made does not of itself establish negligence. There is a natural impulse where an accident has occurred simply to do something to avoid its recurrence, so that steps taken after an accident are not an infallible guide to what it was reasonable to do before the accident. As Handley JA pointed out in Brito v Fairfield City Council [2000] NSWCA 215:
It is always possible after any accident for an expert, or indeed frequently a lay person, to identify additional precautions which might have been taken which might have avoided that accident. This can even be done where the accident involves deliberate action such as suicide on the part of a prisoner. The fact that additional precautions can be identified after the event which could have been taken which would or might have avoided the accident does not establish that there has been a breach of duty [25].
The fact that precautions were taken after the accident must not distract attention from the enquiry whether before the accident a reasonable person would have taken those precautions.
The submission on behalf of Mr Kuhl that the risk of injury could have been avoided by simple and inexpensive modifications to the vacuum system seems to me to run into the immediate difficulty that in the absence of evidence as to precisely how the accident occurred, it is not apparent that the modifications suggested by Mr Kuhl were likely to have prevented the accident.
In any event, in the absence of evidence that passing the hose under pressure involved any increased risk of a person coming into close proximity to the suction end, I do not consider that it can be said the failure to implement those measures before the accident demonstrates a breach of duty.
In my view, Mr Kuhl has not established that the primary judge erred in dismissing his claim against WOMA.

Conclusion

I would dismiss the appeal.