Kuhl v Zurich Financial Services Australia Ltd & Anor
[2010] HCATrans 267
[2010] HCATrans 267
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P31 of 2010
B e t w e e n -
GEOFFREY LAWRENCE KUHL
Appellant
and
ZURICH FINANCIAL SERVICES AUSTRALIA LTD
First Respondent
QBE INSURANCE SERVICES AUSTRALIA LTD
Second Respondent
FRENCH CJ
GUMMOW J
HEYDON J
CRENNAN J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON TUESDAY, 19 OCTOBER 2010, AT 10.16 AM
Copyright in the High Court of Australia
MR B.L. NUGAWELA: If it please your Honours, I appear for the appellant together with my learned friend, MR M.A. TEDESCHI. (instructed by Taylor Smart)
MR J.E. MACONACHIE, QC: I appear for the first respondent, your Honours, with MR J.R. CRIDDLE and MR H.M. O’SULLIVAN and I also appear for the second respondent on my own. (instructed by SRB Legal and Jarman McKenna)
FRENCH CJ: All right. Thank you, Mr Maconachie.
MR MACONACHIE: Your Honour, could I give to your Honours, in the hope that it could be of some assistance, a list of dramatis personae with some explanation of who was who in it and how they fit into the picture.
FRENCH CJ: Yes, Mr Nugawela.
MR NUGAWELA: Could I commence by underscoring five central factual matters below before addressing your Honours on the three questions that this appeal agitates, and the first is this, that WOMA, the first respondent, owned the truck and it supplied the truck and it was a truck which had a much more powerful vacuum facility than the Hydrosweep truck. Second point is this, that the precise nature of the work upon which the two WOMA men were going to do was entirely left to WOMA and the findings in the Court of Appeal in that respect and the responsibility for the direction and supervision of those men was assumed by WOMA. The Court of Appeal made that finding at 65.
The third important or central factual proposition is this, that WOMA was responsible for setting up the vacuum hose and clearing the blockages in it and it follows – and we have given your Honours the references in our submissions in reply at paragraph 1 – that they set up the vacuum truck, they set up the hoses, they operated the truck, they were responsible for clearing the blockages whenever it occurred and then they passed the hose back to Transfield’s reactor racks. To do that required two employees, one to operate the truck and one employee just moving along the line to ensure that if blockages occurred, WOMA would clear it. There was a supervisor from WOMA who supervised those two functions.
FRENCH CJ: So that was item 4 in your factual matters?
MR NUGAWELA: Finally, your Honour, the risk of injury was in this case obvious, so found the trial judge. Can I take your Honours to the duty question. The trial judge formulated the duty question as a duty to provide a vacuum facility suitable for the purpose which did not constitute a risk of injury to those exercising proper care. Now, what was proper care and in what respects precisely the appellant was said not to have exercised proper care were not the subject of findings below. The majority in the Court of Appeal implicitly accepted that formulation and it did so because it made the finding that the risk of injury only arose if the worker failed to keep his body away from the end of the suction hose.
We say, firstly, that the suction hose was a very powerful hose. It was operating at 1500 pounds per square inch. It had a diameter of 4 to 6 inches. It was strong enough to suck up not just iron filings but lumped iron material in briquettes larger than 6 inches in diameter. It had to convey that material over some distance of 60 metres into the vacuum truck. So it is a very powerful unit. Some of the evidence said it was at least 50 times more powerful than a household vacuum cleaner. We say that operating that hose under normal circumstances, let along passing it to a colleague with all the inherent opportunities for miscommunication in a noisy environment, is in itself not a banal or risk‑free enterprise.
It seems, your Honours, it is our submission that the formulation of the duty below, that is the duty that existed to only those people who took proper care for themselves, might have a reference back to this Court’s authority in Road Traffic Authority v Dederer, and we make that point at paragraph 13 of our submissions. We say that Dederer obviously is distinguishable, is a proposition of law which goes to a road authority or an occupier in the context of the scope of the duty of care owed by the entity. This was obviously a hazardous piece of equipment operating in hazardous environmental conditions far removed from the situation in Dederer. As we said, your Honours, there was no finding that this appellant somehow failed to exercise proper care in receiving the hose back from WOMA.
GUMMOW J: What should have been done?
MR NUGAWELA: Two things, your Honour Justice Gummow. Firstly, as was done subsequent to this injury, an instruction passed to ensure that if a hose is going to go from one person to another, the vacuum pressure should have been turned off. In the result, it could not have been done the night in question because although WOMA was responsible for supplying Kelleher to operate the truck plus another employee to deal with the blockages, on the night in question they only supplied Kelleher. So he was running from the truck to the reactor where the blockage occurred, assisted in the blockage and obviously could not run back 60 metres to turn off the truck before he handed the hose back to the appellant.
That is one thing that should have been done, was implemented post‑accident, and that brings up, we say, the Nelson v John Lysaght point. The second thing is, as her Honour Justice Wheeler in the minority found ought to have been done – and I will your Honours through the efficacy of the break box as we amplify some aspects of the evidence below, but that is the use of the break box. In fact, I might deal with this now. At appeal book 147, line 4 through to 10:
if you’re passing it around and someone got a limb or something caught, they wouldn’t be caught on the head end of the nozzle.
That was the function of the break box.
CRENNAN J: So it does not turn off the suction?
MR NUGAWELA: No.
CRENNAN J: But it denies access to the aperture at the end of the hose?
MR NUGAWELA: That is right, your Honour.
CRENNAN J: It stops access.
MR NUGAWELA: In fact, the first respondent draws attention, your Honours, to the passage at 146, line 30 onwards. Just picking up at 34:
so that when actually we had to move the hoses around, if they were under load, we’d just crack that open ‑ ‑ ‑
et cetera. When one reads that with the passage your Honour to, clearly the contemplation of that post‑accident modification was to preserve life and limb in the act of passing the hose which was otherwise going to be under extremely high suction pressure. It is said against us – I think this comes from paragraph 34 of my learned friend’s submissions – that:
the appellant plaintiff’s submissions invites this court to overturn concurrent findings of fact; and does so with an appeal to common sense and without analysis of the evidence . . . No expert evidence was called to explain the forces involved, and relevant industry standards or practices were not put into evidence – without such evidence this court would be speculating.
Firstly, if it was necessary for factual underpinning to be found before there was a duty of care – and we are referring to Dederer at 48 – we say there was ample factual basis for finding that the risk was obvious, foreseeable and posed a hazard. Secondly, in any event, we say that the question of a duty or scope of a duty is an evaluated finding.
BELL J: Just on the question of the scope of the duty, turning to Justice Wheeler’s dissenting judgment, her Honour said at appeal book 214, paragraph 8 that the errors that she identifies in the primary judge’s reasoning involved causation, foreseeability and perhaps the formulation of the duty. She does not come back to that, save to conclude at appeal book 216 at 19 and 20 that the breach of the duty that she accepts and which clearly was within the narrow scope of the duty identified by the trial judge was the omission to install the break box.
MR NUGAWELA: Yes.
BELL J: When one turns to the reasoning of the majority at appeal book 228 at paragraph 73, it is noted that while the case was not clearly pleaded in this way, it was conducted before the trial judge on the basis that the passing of the hose under pressure gave rise to the risk of injury and the associated duty, and that is the case that you advance here?
MR NUGAWELA: That is so, your Honour
BELL J: Justice Wheeler does not really deal with that, does she?
MR NUGAWELA: No, her Honour does not. In fact, her Honour focuses on the break box as a matter that went to breach and causation, but we say as a matter of common sense, if the post‑accident instruction not to pass the hose under load was implemented, that clearly would go to factual and legal causation. I propose to make some more submissions on causation in that part of the grounds, your Honour.
BELL J: I am sorry, but can I just take up with you, what do you say was the majority finding on the question of the duty in light of the acknowledgement that this was the way that trial was conducted?
MR NUGAWELA: Yes. I think, no disrespect to the majority, they did not deal precisely with the formulation of the duty of care but implicitly, as we say in our submissions, they seem to have accepted the formulation made by the trial judge, namely, a duty to take care only of people who use proper care for themselves. Hence, the formulation in the majority reasoning that the risk only arose if you put yourself in harm’s way and that it was not foreseeable that someone exercising proper care would do so and therefore implicitly accepted the formulation by the learned judge.
BELL J: And implicitly accept the duty that you contend for on the appeal. The difficulty that the majority found was in the issues of foreseeability and causation.
MR NUGAWELA: Quite. Can I then, your Honours, deal with this theory that some subsequent action on the part of the appellant was juxtaposed of course with His Honour’s finding that the appellant was a bit reluctant and there was no precise evidence as to how his arm came to be sucked in by this high pressure hose. We pick that up at paragraph 15. We say her Honour Justice Wheeler’s analysis at page 214, paragraphs 10 and 11 was the correct approach, that there is no need for the appellant in this case to give precise evidence how his arm came to be sucked up under those circumstances. It is a very powerful vacuum hose he received. It was immediately sucked up. There was an ensuing struggle.
There was no suggestion put to him even obliquely, to use the words of Justice Wheeler, that he somehow voluntarily engaged in the process of sticking his hand in front of the aperture. It might have gone, if he was careless, being the only other reasonable or logical explanation open, that that is an issue that went to contributory negligence, but of course that is not in issue in this case, or no longer an issue in this case. We make five points, your Honours, at paragraph 15 in relation to that. There is the Hamilton v Nuroof authority firstly.
FRENCH CJ: The finding of fact that the hose was passed to the appellant with the nozzle pointing away from the appellant was not challenged?
MR NUGAWELA: There was a challenge below, but that was singularly unsuccessful and it is not pressed here.
FRENCH CJ: So we can assume that?
MR NUGAWELA: Yes, your Honour. The second point in relation to this subsequent action theory is that it was really noisy to the point where the appellant had to lip read and interpret gestures out of Mr Kelleher and obviously there was miscommunication because the trial judge’s finding on Mr Kelleher’s evidence was that he said he was unsuccessful in unblocking the hose and the appellant interpreted the gestures in this noisy environment as that he had cleared the hose and it was all okay to accept it. The third and fourth points we deal with at paragraphs (c) and (d).
This notion of expert evidence to recreate the risk inherent in passing a hose has two aspects to it, in our submission. The first is, of course, you would countenance the type of approach undertaken at first instance by Justice Wolff in Hamilton v Nuroof where your Honours would recall he caused some bitumen to be heated up to test its viscosity. That decision was overturned subsequently by this Court. The second aspect of it is this, that this notion of comparatively increased risk was an argument raised by the first respondent in the Court of Appeal.
What happened is that there was a concession at transcript at page 39, which your Honours are aware of, and following the concession – I will call it the concession – that if there was a foreseeable risk, a duty was owed to instruct Kelleher not to pass it. It was then postulated, but wait a minute, there must be some kind of increased risk inherent in passing a hose rather than normally operating it, and there was no evidence on that hypothesis of a hose writhing as it was passed from one person to another and, of course, the Court of Appeal picked up on that hypothesis. But we say in response to that there was just no basis on which to hypothesise that the hose would behave in such a manner when passed from one person to another. Not one iota of evidence below.
We say that when all the circumstances are looked at, there was only one cause for the injury and its continued operation on the plaintiff’s limb, and that was obviously the very high suction. In response to the arguments that are made against us on that score, your Honours, we make three points in our reply in paragraph 9(a), (b) and (c). I simply ask your Honours to treat that as read.
Still on the question of the scope of the duty of care, in paragraph 16 we try and draw an analogy with Brodribb. It might be an uncomfortable analogy on the facts of Brodribb, but the factual proposition is this, that WOMA was central in the operation of the vacuuming. It supplied the truck. It set up the hose. It was responsible. It assumed the task of unblocking the hose and supervising the operation of the truck and unblocking the hose and, as the trial judge found, it was foreseeable to it that those people involved in that enterprise could face risk of injury.
It was foreseeable that when they passed the unblocked hose back to the reactor rats, if there was miscommunication or mishap or inadvertence, a reactor rat outside the reactor, rather than operating it inside the reactor but accepting the hose from another agent, could face a risk of injury. It also had a duty to Kelleher, the borrowed employee from Hydrosweep, to make that change. That change was made post‑accident and it is reflected in exhibit 10 in the appeal book at page 186, point 6, the handwritten annotation:
Ensure vacuum hose is not underload before passing hose through entrance to job site as required
Now, as against that submission ‑ ‑ ‑
BELL J: Was there some evidence to explain the inclusion of the handwriting? This is on exhibit 10 at page 186. The passage that you just took us to is handwritten. I thought there was some question about whether Mr Collins had, in fact, prepared a job procedure sheet containing that instruction.
MR NUGAWELA: I will check on that, your Honour. I do recall that passage and my interpretation of it, as I glanced at it, was that Mr Collins said he added the handwriting later. I could be wrong. My learned friends disagree. I will rectify it should the need arise. Your Honours, as against.....paragraph 35 of my learned friend’s submissions, of course, entirely disagree with......WOMA actually control the use of the equipment for the purpose of clearing the blockage and passing the hose back and clearly you are finding that WOMA supervised the use of the equipment. We have collected those references at paragraph 1 of our reply.
BELL J: Can I just interrupt you to note that Justice Heydon draws attention, in answer to that question concerning exhibit 10, to the transcript at 156 in the evidence of Mr Collins, about line 15. He says:
That was put in –
referring to the handwriting, as I understand it –
after Geoff’s incident just to reinforce to the personnel that were actually using the hoses –
et cetera.
MR NUGAWELA: Yes. That is the point we make, there was a post‑accident modification.
GUMMOW J: Where do you find Mr Collins saying that the break box was a really good device?
MR NUGAWELA: At 146, your Honour.
BELL J: At 30, I think.
MR NUGAWELA: Line 33, “a really good safety device”. It is important to follow up, your Honour Justice Gummow, to 147 what the contemplation was, at line 6:
Exactly right and that way no one – if you’re passing it around and someone got a limb or something caught, they wouldn’t be caught on the head end of the nozzle.
That was why it was a really good device, we submit.
FRENCH CJ: As for Mr Collins’ evidence of the system at page 140, about line 30 and following, that the system, where there was a blockage, was to try to unblock and then call up the truck to shut it down, to find where the blockage was, try to loosen it, turn the truck back on again, and so on, now, when Mr Kelleher passed the hose back to Mr Kuhl, he tried to unblock it unsuccessfully.
MR NUGAWELA: According to him, yes.
FRENCH CJ: So, how does that fit into the system that Mr Collins described?
MR NUGAWELA: It did not and it did not because Kelleher – and I take your Honour to the evidence later on at submissions and breach – Kelleher was just simply assigned too many tasks on the day. He was supposed to be dedicated to operating the truck where the truck was so that when he was notified by radio by his co‑employee from WOMA, he could turn it off.
FRENCH CJ: Obviously, although this thing was blocked, it still was generating considerable suction, because it sucked up his arm.
MR NUGAWELA: Obviously. It did indeed.
FRENCH CJ: So we had no evidence as to what he was meant to do with it, upon it being passed back to him?
MR NUGAWELA: No. I think he assumed that it had been unblocked, then he would continue the operation of sucking up ‑ ‑ ‑
FRENCH CJ: He thought it was unblocked and Kelleher had not been able to unblock it.
MR NUGAWELA: Yes, and we assume that his intention was to go back into the reactor itself and resume the operation of sucking up the fines from the grid floor within the reactor, which we do not contest, obviously, as part of his employment tasks with Transfield. It is the passage, the conveyance back by WOMA of this hazardous piece of equipment in circumstances where there is an opportunity for miscommunication, mishap, misinterpretation, which we say was entirely Transfield’s responsibility.
FRENCH CJ: Whether it was blocked or unblocked, it does not matter. It is obviously still working.
MR NUGAWELA: Yes.
FRENCH CJ: It is passed back to him with the nozzle pointing away.
MR NUGAWELA: Yes.
FRENCH CJ: What is the relevance of the miscommunication?
MR NUGAWELA: I suppose your Honour is quite right. He thought that it had become unblocked when he accepted it, so there is the relevance.
FRENCH CJ: But your simple position is the negligence consists in the breach of the relevant duty, consisted in allowing a system to operate under which the hose could be passed from one person to another while it was still underload.
MR NUGAWELA: Quite, and, of course, the finding of her Honour Justice Wheeler, the minority, that a break box would have been a reasonable measure to have used or devised. It was subsequently devised both in conjunction with Transfield and WOMA, WOMA having ‑ ‑ ‑
FRENCH CJ: Either a break box or a system, you would say, under which the load was turned off before it was passed?
MR NUGAWELA: Quite.
GUMMOW J: What do you say about the treatment in the majority reasons, at appeal book 231, of what was said to be the Nelson point, in particular, paragraph 30 on page 231?
HEYDON J: Paragraph 84.
MR NUGAWELA: Line 30, your Honour Justice Gummow?
CRENNAN J: Paragraph 84, line 30.
GUMMOW J: I am sorry, paragraph 84, line 30.
MR NUGAWELA: That is an unremarkable proposition, but what the majority needed to do was to take it one step further and include the Nelson point as part of the Wyong breach analysis. Having stated the proposition, they just drew a line and moved on to something else in a dismissive way.....he says in some circumstances that inference of breach can and should be drawn, particularly where there is no subsequent explanation by the defendant as to why that system was not and could not have been implemented shortly prior to the accident rather than shortly after.
GUMMOW J: What about paragraph 86, is that a problem for you, page 231?
MR NUGAWELA: Yes. This is the increased risk formulation of the duty of care that I addressed your Honours on. It was based on a hypothesis in argument made by counsel as if there was some factual basis that the hose writhed or behaved haphazardly upon passing. There was no factual basis for that proposition or hypothesis. After making the concession, then my learned friend below went on to make that argument which ultimately found its way in the formulation of the duty of care with no factual underpinning.
Can I come, your Honours, to the concession point. My learned friends cite Hollis v Vabu for the legal propositions that concessions obviously in this case can be withdrawn. We cannot argue with that. But then between paragraphs 19 through to 26 they seek to persuade your Honours that the circumstances are such that it is just in this case for leave to be given to withdraw the concession. Obviously we say the concession was properly made and that in the circumstances of this case justice does not require or favour the grant of leave. At paragraph 21 it is said that:
The mere provision of plant and equipment to someone who intends to integrate it –
is not sufficient to give rise to a duty of care. We agree with that, but this case is distinguishable. WOMA did not just supply the equipment. There is no burden on commerce. It had the burden of precisely unblocking the hose and supervising its operation. It was a burden which, if there was no evidence on the contract, there were findings below which are not challenged, then it must have assumed the responsibility. As to the duty to provide the contract, well, I have no explanation why it was not provided.
FRENCH CJ: We know very little about the actual contractual relationships here.
MR NUGAWELA: Yes. The contractual assumption of responsibility or the behavioural assumption of responsibility we say is unimportant. At the time of trial, it was nine years after the incident, many of the witnesses could not recall. The document was not produced. If it was in existence, it would have been discovered, certainly by WOMA. Not in evidence. No party put the contract. We do not know if it was in writing or orally. That does not detract from those clear unequivocal findings that it was WOMA’s assumed responsibility for clearing the blockage and passing the hose back. We make that response overall in relation to paragraphs 21 through to – and as to 25 where it is asserted that:
There was no relevant relationship between WOMA and the plaintiff –
Well, again we say that this completely overlooks the fact that it was WOMA who was charged with the responsibility to unblock the hose and pass it back to the plaintiff and other reactor rats. Your Honour the Chief Justice in relation to this notion of contractual assumption of responsibility we make the point at paragraph 3 of our reply that WOMA’s supervisor admitted on the pleadings – it was admitted on the pleadings that WOMA’s supervisor had the task of supervising WOMA’s contract with Transfield, including those two steps which are referred to.
Can I say in relation to paragraph 14 of my learned friend’s submissions, we say that that, with respect, does not entirely encapsulate the way the case was run below and, as the majority noted, I think at paragraph 72, although the point was not pleaded by the instruction not to pass the hose underload, it was a live point at trial. No objection was taken, submissions made and pursued on appeal.
Can I turn to the breach point, your Honours, starting at paragraph 11 of our submissions. I have already made submissions to your Honour Justice Gummow in relation to the Nelson point. I simply ask that paragraph 11 be treated as read. But in response to those submissions, at paragraph 16 of the respondent’s submissions it is said that the break box was located 10 to 15 metres from the head of the hose:
It operated thus: one “could actually pull the handle back and forward which would break the vacuum at the nose end, or the head end of the hose that people are using –
That was a reference to 146 of the appeal book. I have taken your Honours to the complete reference, which ends at page 147. The exact purpose, according to Collins, why it was done was to preserve life and limb; for limb certainly in this case. Then at paragraph 31 of my friend’s submissions it is asserted that “responsibility for the system was that of Transfield”. We ask rhetorically, what system? If one is talking about unblocking the hose and passing it back to the reactor rats, Transfield had no operation, no responsibility for that. Its employees were passive recipients of WOMA’s responsibility.
BELL J: Just in terms of where we get that from the majority in the Court of Appeal, in Justice Newnes’ reasons, starting at appeal book 223, paragraph 50 and following, he sets out the evidence of various witnesses who were Transfield employees concerning the responsibility of WOMA operators to clear blockages of the hose. After setting out that evidence, one sees at paragraph 65 on page 226 of the appeal book reference at about line 40 to the responsibility for the direction and supervision of the Hydrosweep employees being that of WOMA. Where do we actually find the majority making a finding concerning the evidence which is earlier summarised and to which I have referred that it was WOMA’s responsibility to clear the blockages?
MR NUGAWELA: We have collected those references at paragraph 1, your Honour, in the appellant’s submissions in reply.
BELL J: I am sorry. Thank you.
MR NUGAWELA: In fact, there is a typographical error in the third line. Your Honours would see a reference to appeal book 133, that should be appeal book 159.6 to 159.10 to which it might be convenient if I can take your Honours very briefly to that. This is Collins re‑examination at 159, line 6:
There [were] normally two operators from WOMA. One would be on the truck, on the radio communications to one of the guys in the confined space, and to one of the other guys that was freelancing basically along the hose, checking on it, make sure it had no leaks, unblocking hoses and just helping out in general.
That is one of the references in the appeal book. In addition to his Honour, Justice Newnes at 65, your Honour, also 59 on page 225 and also 56 at line 30:
Although WOMA was responsible for setting up the vacuum hose and clearing blockages in it –
et cetera.
BELL J: Yes, thank you.
MR NUGAWELA: Can I come back to the breach point then in my learned friend’s submissions in reply at paragraphs 31 and 33. I made the submission in relation to paragraph 31, a rhetorical submission in relation to WOMA’s responsibility for the relevant system, not of clearing the fines off the grid floor but, relevantly, the passage of the hose, but the switch off point did, in fact – this is turning off the hose – did in fact, on the evidence, get a run at trial and again in the Court of Appeal. We respond to that and provide your Honours the references to that switch off point in our submissions in reply at paragraph ‑ ‑ ‑
FRENCH CJ: Seven, I think, is it not?
MR NUGAWELA: Quite so. Thank you, your Honour. There are also useful references in paragraph 5 of the reply. There is another erratum, I am sorry about this, in the middle of paragraph 5, just before “WOMA did not simply provide the plant and equipment”. AB 23.30, your Honours, should be 47.36 to 47.40. The other references that are also relevant, if your Honours could make a note of them, they are AB 118 to 119, 132.10 to 132.25, 146.10 to 147.20, 148, 149.0 to 149.10 and AB 157 through to 159.
Can I say in relation to this Nelson v John Lysaght point, and the break box specifically, as we say at paragraph 9(d) of our written submissions, that there was no evidence that the break box was a complex modification. It was jointly implemented between WOMA and Transfield and it clearly shows that it could have been implemented prior to the injury. There is a description in my learned friend’s submissions of what is said to be the complexity of the operation, and this is at paragraph 36.5, but those references at 36.5 are in relation to the operation of the reactor plant itself, nothing to do with modification to the break box.
BELL J: I am sorry, and I know you may have covered this, but it is just not clear to me how you respond to the contention that if the break box had been fitted in the circumstances of this accident as it occurred, how it might be that one would conclude that Mr Kuhl would not have been injured.
MR NUGAWELA: Or not as seriously injured.
BELL J: Or not as seriously as he was.
MR NUGAWELA: Yes. Your Honour, that goes to the causation proposition which I will come to immediately, if I may.
BELL J: Thank you.
MR NUGAWELA: Starting at paragraph 17 of our submissions, of course we say that causation is a matter that can be inferred from the factual substrate. No expert evidence is necessary, talk about how powerful the hose was and the facts speak for itself. He had his arm sucked in all the way up to his shoulder joint. He was struggling with it with his right hand. He was writhing on the floor trying to use his feet to kick it off. His colleague was trying to help him pull it off. It was a tremendous force. At paragraph 49 of my friend’s submissions it is said against us that – this is the causation point.
If the break box was 10 to 15 metres behind the nozzle, then the plaintiff obviously could not have manipulated it himself. That may be so, but equally so, perhaps more so, is the evidence that the hose was flexible and if one were to picture the plaintiff writhing on the floor struggling with this monstrous hose and using his legs to kick it off with the flexibility of the hose, it would have been a simple measure for him to turn around and use the break box which is only 10 metres away from him. But besides that, your Honour, Kelleher, who was in proximity, would have been able to switch it off.
Now, it is said against us that, well, Kelleher had a clear industrial demarcation that he was not a Transfield employee, but obviously that, we say, does not carry very much weight because he was responsible for conveying the hose safely back and if in the process of conveying it back a mishap happened, that was what exactly the break box was for, according to Collins. There are then three scenarios put in paragraph 49.2.2:
there is no evidence to enable one to determine whether the harm suffered by the plaintiff was caused the instant his arm was drawn into the hose –
That is one scenario –
whether it was caused by being located in the hose, under pressure, for some time –
or thirdly –
whether it was caused by attempts to extract his arm whilst the hose was still under pressure.
As to all three of those, if the hose was passed inert, causation is clearly made out in a factual and legal sense. The post‑accident modification not to pass a live load is causally related to all three of those scenarios, and as to the second and third scenario that it was caused by being located in the hose under pressure for some time and, thirdly, the attempts to extract his arm, obviously the break box would have been causally related in a legal sense to each of those scenarios.
If there was medical evidence to be led, it would be held upon, we say, the respondents to lead that evidence on that causation point, common sense, negligence or omission to take action which materially increased the risk of injuries taken presumptively to have caused the injury in the absence of evidence led to the contrary. Other than that, your Honours, those were the only matters I wished to address your Honours. There are some further corrections to the references which I am not sure I have drawn your Honours’ attention to.
Can I ask, at paragraph 2 of the appellant’s submissions in reply, in the fourth line AB 45.05 should read AB 45.20. On the next page, page 2,
right at the top, the reference AB 51.35 should read 51.35 to 52.05. Still in that line, 72.17 should read 72.39 to 73.12. I have given your Honours the addenda to paragraph 5 of the reply. On the next page, paragraph 7, the third line, instead of 149.050 it should be just 149.05. The next line, AB 185.05, your Honours, should be deleted. On the next page, your Honours, at paragraph 13 – relevant to 13, of course, is this passage that your Honours have been taken to on two occasions and that is 146.27 to 147.10. Unless your Honours have anything for us, those are our submissions.
HEYDON J: Can I just ask you this question. In paragraph 11 of your written submissions in reply, the fifth last line, it speaks of Kelleher and Cammo as though they were different people.
MR NUGAWELA: One and the same person, we accept.
HEYDON J: So it is not two other people engaged, but one?
MR NUGAWELA: No, it is his nickname.
FRENCH CJ: Thank you, Mr Nugawela.
MR NUGAWELA: Thank you.
FRENCH CJ: Mr Maconachie.
MR MACONACHIE: Can I start by taking your Honours to appeal book 228. Before I do that.....our written submissions that we have put in and rely on them. Commencing at paragraph 74 at about line 35, Justice Newnes deals with the question of the case made by the appellant that there was negligence in passing the hose underload or under pressure and at 229, paragraph 75, determines comprehensively that that case was not made out because there was no evidence, no suggestion that when the six‑inch hose was passed from one man to another, it behaved any differently than when it was not being passed, no differently than when it was dropped. It did not writhe. It did not act in a way that caused difficulty in handling. The system laid out by Transfield – and I will take you to that finding shortly – was that in the doing of this difficult work, and there is no doubt that it was difficult work, a suction hose was held by a worker and applied to iron fines which were then drawn by suction into the hose and by that suction dispersed to some other place.
CRENNAN J: It would not be inert underload, would it?
MR MACONACHIE: That is the finding, your Honour. Evidence was given that there was no – even if it were dropped, as his Honour says, at line 15 on page 229:
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.
It is not like a hose that is under positive pressure blasting out water, for example, which will writhe and kick about. The findings on the evidence were that the suction did not cause any kind of physical difficulty in handling the hose in its ordinary operation or, if it were dropped, it did not kick and writhe about. It was relevantly inert.
FRENCH CJ: Well, the term “inert” seems to be used in paragraph 75 just as another way of saying it was not prone to significant or sudden movement caused by the pressure.
MR MACONACHIE: Or any, your Honour, any.
BELL J: Accepting that, the characterisation of the risk is said by Justice Newnes to be no greater of a person’s body coming into closer proximity to the suction end in passing it under pressure than in not passing it under pressure, but, of course, if it is not under pressure, it does not matter that the person’s body comes into contact with the suction end. Surely when we are looking at risk, the risk is that in passing the hose when it is underload a person’s body part might be sucked into the hose. This does not depend on some extraordinary movement of the hose. It depends on the fact that the hose is underload.
MR MACONACHIE: Your Honour, the hose was passed by Kelleher to Kuhl. That operation, that movement was complete and concluded before Mr Kuhl’s arm became caught in the pipe. Passing the hose was an operation, a movement that was anterior to Mr Kuhl’s arm becoming caught in it. There is no finding, none, that it was during the course of passing the hose that his arm became stuck in it. It is as plain as a pikestaff, with respect, that it was some time, albeit a short time, after the hose had been successfully transferred by Kelleher to Kuhl that Mr Kuhl’s arm became caught in the hose in circumstances where, the trial judge said, “This man, Mr Kuhl, is not telling me all that he can tell me about how his arm got caught”, but his arm did not get caught in the passing. It was afterwards.
BELL J: Mr Maconachie, those are factual matters, and I appreciate, but they are quite distinct from the question of the reasoning at lines 15 and following on appeal book 229 in paragraph 75 of Justice Newnes’ judgment. His Honour says:
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 –
and I am just raising with you the logic of that.
MR MACONACHIE: The logic of that is this, your Honour. It was the system of Transfield that there be a hose with an open end, no grill across it, no handle attachment, no break box involved. It was the system of Transfield that it be used in that fashion, to do this difficult job of picking up the iron fines. It could only do its job if it was underload, if it was sucking material back into the hose. When it was passed from one to the other, the finding of fact by the trial judge and by the Court of Appeal is that there was no different situation that obtained at all, no greater danger, no lesser danger, exactly the same circumstances applied. There was absolutely no difference in the circumstance of the worker using it and the worker receiving it. That is the logic of it, your Honour. The logic of it is that there is just no difference. Just because it was passed does not mean that there was any greater risk. There is a finding that it was not.
FRENCH CJ: But you say after it has passed, he is in the same position as the worker using it?
MR MACONACHIE: Of course. There is absolutely no finding and no evidence capable of supporting a finding that it was during or because of the passing, that what happened was that he got his arm caught. Judge Wisbey in the District Court, on a demeanour‑based finding, which is addressed in our written submissions, said in, “This man is not telling me all that he knows.”
BELL J: Was that suggested to Mr Kuhl in the course of his evidence?
MR MACONACHIE: I am putting it perhaps a little editorially, your Honour. He gave his evidence and was not cross‑examined about how his arm got caught. The defendant relied and is entitled to rely on a failure by the plaintiff to prove the cause of his harm and relate it to a relevant breach. The finding that Justice Wheeler became focused upon, the subsequent action point, was no more than the trial judge saying he has not proved what was the cause. He has not proved what was the relevant breach. It was not a question of inferring some wrongdoing on the part of Mr Kuhl. It was a lacuna in his proof of harm. As Justice Kiefel said in Royal’s Case, at about paragraph 139 – I have not given you a reference to it, but I will be happy to – Betts v Whittingslowe, which my learned friend obliquely referred to at the end of his submissions, does not put the plaintiff in a situation where he can just rely on inference to prove his case.
In some very, very narrow circumstances, he can, like Betts v Whittingslowe, where a boy of 14 was put to work on a machine that stamped out half hinges for ammunition boxes and on the second day at work he got his hand caught and three of his fingers partially amputated. The finding there was that there was an absolute duty, an absolute duty, on the employer and occupier of the factory to safely guard. Well, if he got his hand caught, it was not safely guarded, and you could infer from the fact of the injury that there was a failure to comply with the statute and that was a cause of the plaintiff’s harm.
That is a million miles away from a situation where the trial judge and the majority of the Court of Appeal find that the article had been passed and, as the Chief Justice observes, that put Mr Kuhl in the same position as if he were at work using the hose in its ordinary way, and there is no explanation as to how he got his hand caught in it. That is a failure of proof on his part. It is not an inference adverse to him, drawn by the trial judge or by the Court of Appeal. It is a lacuna in his evidence. That is the beginning and end of this case, in our respectful submission, because there is a finding of fact by the trial judge and by the Court of Appeal that the system of work was that of Transfield; not us, of Transfield.
BELL J: That is the finding in relation to the system of work with respect to the cleaning of the reactors, is it not?
MR MACONACHIE: Yes, but the ‑ ‑ ‑
BELL J: I think it is the case that it was accepted that WOMA was responsible for the clearing of blockages. Sometimes Transfield employees would endeavour to clear it themselves, but WOMA employees or persons acting at the direction of WOMA would clear the blockages, is that right?
MR MACONACHIE: No, your Honour. No, not even close, with respect.
BELL J: Well, it is paragraph 56 of Justice Newnes’ judgment, appeal book 224 that Mr Nugawela relied on.
MR MACONACHIE: Where he is dealing with the question of whether or not Hydrosweep owed a duty of care and he is talking there about the relationship between WOMA on the one hand and Hydrosweep on the other.
BELL J: I understand that but ‑ ‑ ‑
MR MACONACHIE: But it is not a finding of fact as between Transfield and WOMA as to who had responsibility for what. The clearing of blockages was an essential, necessary and very frequent part of the system of vacuuming out these fines, a system which was changed at least three times by and at the direction of Transfield, once for industrial reasons and on two other occasions, at least, because they were dealing with something that was new and required innovation.
BELL J: Just for the present, if we could stay with the findings of the majority in the Court of Appeal, one finds in Justice Newnes’ judgment, beginning at appeal book 223 at paragraph 49 and following, his account of the evidence that WOMA employees acted to operate the trucks and to clear blockages of the hose. Where does his Honour make a finding in that respect or address the finding of the trial judge on that issue, that is, responsibility for clearing the hose?
MR MACONACHIE: Let me see if I can approach it this way, your Honour. First, in our submission, the finding that Transfield was responsible for the system necessarily involves a finding that the system of Transfield incorporated whatever work was necessary to be done by WOMA. It is a Stevens v Brodribb point. There were, on the evidence, Hydrosweep, WOMA, Transfield employees and equipment being used for this job of getting bits and pieces of material out of the reactor. To find that Transfield was responsible for the system was to necessarily find that it was Transfield’s responsibility to lay out a system, particularly for its own employee, Mr Kuhl, which co‑ordinated the operations of these people.
The hole watcher, for example, a man whose job it was to look through a hole in the top of these reactors and see what was happening, he was a Transfield employee and it was part of Transfield’s system that he observed what was happening inside and, for that matter, outside the reactor immediately. What WOMA did was part and parcel of Transfield’s system.
BELL J: Accepting that Transfield may have had responsibility in the sense of fixing a safe system of work for its employee, one would think an unremarkable proposition, the question I am directing attention to is, what, if any, responsibility WOMA had in relation to the equipment that it was supplying and in respect of whom its employees or those responsible at its direction were handling, and it is really a question of what, if any, conclusion on those facts the Court of Appeal came to.
MR MACONACHIE: The Court of Appeal came to the conclusion, at 229, paragraph 75, that the case made against WOMA, that is, Atkinson should have instructed Kelleher, was not made out for the reasons that are there given. WOMA supplied equipment pursuant to a contract. That contract, or the terms of it, received scant attention in the evidence and the trial judge referred to that and so did Justice Newnes. What WOMA was contractually required to provide is unknown. What it did provide may well have been stipulated by the contracting party, Transfield, because of the nature of the work that had to be done. That it did not have mesh over the nozzle, that it did not have a handle, that it did not have a break box, that it did have very high suction, may all have been, for what the Court knows, that which the contracting party required.
There is just nothing to establish that what was contractually required was not produced and the fact that there were aspects of this equipment that might cause harm was necessarily something that had to be addressed in the system of work into which the provision of this machinery was integrated. It was not a matter for WOMA to lay out a system for unblocking or returning this article to a worker. It was a matter for Transfield to ‑ ‑ ‑
BELL J: Who was able to turn the suction off?
MR MACONACHIE: I am sorry?
BELL J: Who had responsibility or the ability to turn the suction off?
MR MACONACHIE: WOMA did, but in order to clear the pipe, except in one particular circumstance, the suction had to be on. If the suction was not on and something was broken up, you would not know whether it had been successfully broken up until you switched it back on again. If it was not successfully broken up, you had to turn it off, try to deal with it, turn it back on again. That was not the way in which it was done because in this very intense time limited operation time was of the essence, and dozens of times a shift there were blockages which were dealt with by Transfield employees by throwing the hose about and dislodging whatever it was that was causing the problem and then going on with their work.
It was only when there was something that might be called a recalcitrant blockage that WOMA came in. Why? In order to, if necessary, cut its own hose physically, manually clear it, then tape it back up again. That is where WOMA came into the picture and that is what is Mr Collins says in the part to which you have been taken. It was the Transfield people who by and large cleared these very frequent blockages and they were frequent because of the nature of the work that was being done. A finding that Transfield owed the duty to provide a safe system of work and safe plant and equipment, we say should be the be all and end all of this case.
If not, what is to be found at 229 is determinative of the case, that is, there was nothing about the passing of the hose which in any way differed from the use of the hose in its ordinary operation, which was Transfield’s responsibility. Thirdly, there was a clear and unambiguous finding that Mr Kelleher was not guilty of a casual act of negligence, which necessarily supports the finding that there was nothing about the passing of the hose that was in any way causative of the harm Mr Kuhl suffered. He was, as the Chief Justice has said, in the same position as if he was doing the job. The passing of the item had successfully been concluded.
BELL J: This temporal point that you are now developing, where do we find that in the reasons of the trial judge or the Court of Appeal?
MR MACONACHIE: I will see if I can find it quickly, your Honour. It is at about page 200 of the appeal book. I will just see if I can find the – page 201, paragraph 35 is an element in it. No, I am sorry, that is dealing with Hydrosweep. It is at page 202 at about line 9. It is implicit in what his Honour there finds, your Honour:
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 possible to identify a relevant breach, and causally relate the incident to it.
GUMMOW J: Just fixing on that last sentence, does that follow from what the trial judge said at page 196, paragraphs 11, 12 and 13?
MR MACONACHIE: Essentially, yes, your Honour.
GUMMOW J: The cross‑examiner wisely left it alone, I guess.
MR MACONACHIE: Yes.
GUMMOW J: Then his Honour picks it up at paragraph 30 on page 200.
MR MACONACHIE: Yes.
GUMMOW J: It looks like a finding that the witness had been reluctant to say precisely what happened.
MR MACONACHIE: Quite. I am grateful to your Honour for drawing my attention to it. That is where his Honour says:
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 –
and I emphasise “subsequent” –
caused his arm to be drawn in by the suction force.
He is there plainly finding that the ‑ ‑ ‑
GUMMOW J: My difficulty then at the moment is with the treatment of that by Justice Wheeler in her dissenting judgment at 214, paragraphs 10 and 11 which, on one reading of it, seemed to reverse the onus.
MR MACONACHIE: In my submission, that is exactly what she does. I am sorry, your Honour, 10 and 11?
GUMMOW J: Yes.
MR MACONACHIE: We say in our written submission on that point that it is ‑ ‑ ‑
GUMMOW J: She says that, “The only inferences open”. That is not the question.
MR MACONACHIE: No, it is not. We say that it is a question of whether or not the plaintiff put before the court evidence sufficient to enable the fact‑finder to find a breach that was a relevant cause. The treatment of the glove in Vozza v Tooth, which we have addressed in our written submissions, is instructive. Can I take you to what was said in Vozza v Tooth because I think it is informative of this point. You will find it in one of the three volumes of cases. It is volume 3 of 3 of the first respondent’s book of authorities and it is about a third of the way into that bundle behind the first blue divider, your Honours.
FRENCH CJ: We are looking here at (1964) 112 CLR 316?
MR MACONACHIE: Yes, it is. I want to take you relevantly to page 318 to start with. It is the judgment of Sir Victor Windeyer which was adopted by all of the other Justices. At about point 7 on the page his Honour says, in the middle of a line:
These phrases are the commonplaces of this branch of the law of negligence.
That is, plant and equipment, safe system, conduct its operations as not to subject him to unnecessary injury. So these phrases are the commonplace of this branch of the law of negligence –
The vigorous assertion of them may sometimes obscure for juries –
and one might interpolate, judges –
the essential simplicity of the issue in a common law action for negligence. It may seem that, because an accident has happened and a workman has been injured, his employer is liable for damages if it can be shown that, by some means, the accident might have been avoided. That is not so.
He then says a few things and comes to what Lord Keith said in Cavanagh’s Case, the top of the next page I want to take your Honours, page 319:
The latter case and Neill v NSW Fresh Food and Ice Pty Ltd establish that the legal burden of proving an absence of reasonable care on the part of a defendant employer remains on the plaintiff workman throughout.
I remind your Honours that the treatment of Betts v Whittingslowe by Justice Kiefel in Royal’s Case essentially says the same thing, the plaintiff bears the onus of proof on the causation issue throughout. Then, Sir Victor Windeyer says this at about .3 on the page:
For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment. To quote a sentence from one of the cases to which counsel referred, “What is ‘a proper system of work’ is a matter for evidence, not for law books”.
In the next portion of page 319 his Honour deals with one of the cases made by Mr Vozza, that is, that there ought not to have been a manual handling system involved, this being a case where a man suffered serious injury to his right hand, the back of his right hand, I think, notwithstanding that he was wearing gloves. At about point 8 on the page his Honour says:
But the evidence about this mechanical arrangement was scanty and scrappy. It did not appear that it was in general use in Australian breweries –
and the like. He says at the bottom of the page:
That its absence showed that the defendant was careless of the safety of its employees is a conclusion that could not rationally be drawn from the meagre evidence adduced.
The evidence in this case can hardly ‑ ‑ ‑
FRENCH CJ: Your submissions really are putting all this to one side, are they not, and simply saying, as I understand your case, that there is no risk associated with the passing of the pipe underload that is shown to have been connected to the injury that Mr Kuhl suffered?
MR MACONACHIE: Yes, and perhaps at greater length than is necessary I am addressing Justice Gummow’s concern with Justice Wheeler’s analysis which we say is wrong because it is not a question of drawing an inference so much as recognising that there was not the necessary evidence to enable the fact‑finder to draw the ultimate conclusion which is a failure to take reasonable care. I will deal with it quickly, if I may, Chief Justice.
At page 320 his Honour comes to the question of the gloves are a different matter. I will not take your Honours through each and every element of it, but gloves were put into evidence being the gloves that were worn at the time. Evidence was called from an expert glove maker to say he could have made a stronger pair of gloves but whether or not workmen would use it and whether or not they would be capable of being used, he could not say. Then at the bottom of page 321, about six lines up:
But, although they did not need the guidance of experts, the jury did need to have evidence on which they could find the defendant guilty of negligence. To speak of a jury using their experience, common sense and common knowledge means nothing unless they be given facts to which they can apply their experience, common sense and common knowledge. The jury here really had no evidence that a different form of glove could have been provided, which would have been practically usable, and which would have prevented the injury that this plaintiff suffered. Had a pair of gloves been produced –
et cetera. Well, what Justice Wheeler was doing, in my respectful submission, was to hypothesise and speculating without there being before her evidence sufficient to enable her to come to the conclusions that she did both in terms of breach and in terms of causation. She did reverse the onus of proof by that mechanism and by not recognising that she needed factual material from which relevant conclusions could be drawn and there was none.
BELL J: When you look at the evidence of Mr Kuhl, which is extracted in the judgment of Justice Newnes at appeal book 230, he says:
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.
Did Mr Kelleher give any account of the temporal sequence of events?
MR MACONACHIE: He did.
BELL J: I mean, on one view, Mr Kuhl’s evidence reads as a man describing an event that he is not able to better give an account of in the sense of the shock of one’s arm being sucked up by a machine of this character.
MR MACONACHIE: That is not how it struck the trial judge. The trial judge found, with that evidence before him, that Mr Kuhl was not telling all that he could tell him.
BELL J: The difficulty I have with that is that if that were the case, one would expect the proposition to have been put to Mr Kuhl.
MR MACONACHIE: Well, it did not have to be, with respect, if the impression made upon the finder of fact was that it was unpersuasive.
BELL J: It is one thing to say a wise cross‑examiner will not take up a matter where the evidence is insufficient to establish the proposition for which the party is seeking to content. It is another thing to say that it is open to a trial judge to conclude a matter adversely to a witness, namely, that the witness has deliberately withheld an account without that matter having being put to him, surely.
MR MACONACHIE: Well, I can give you no better answer than I have given your Honour, that is to say, that the evidence that the plaintiff gave was scant and meagre. The trial judge was there. He saw the way in which the man gave evidence. He saw the way in which Mr Kelleher gave evidence and he came to the conclusion that he was not being told all that Mr Kuhl could tell him. Can I take your Honours to appeal book 163 at about line 25. This is Mr Kelleher in‑chief called by Mr Tedeschi for the plaintiff:
Just take your time and tell us what happened?---I remember going ‑ ‑ ‑
GUMMOW J: A point, is it not, that the reason of the absence of the specificity does not matter?
MR MACONACHIE: Quite. Indeed, your Honour. But there is Mr Kelleher which his Honour also had and if one is going to – and I say this with great respect – if one is going to parse and analyse the particular words of working men to determine whether or not something should or should not be done, one has got to look at what Mr Kelleher had to say. This is at about line 25:
Thanks. Just take your time and tell us what happened?‑‑‑I remember going up to unblock the hose and I saw the bloke there and I’ve tried to unblock the hose and I passed it back to him, then he had his arm up to there.
Right. Was the hose under suction ‑ ‑ ‑
CRENNAN J: He obviously gestured, Mr Maconachie. Is it up to the shoulder?
MR MACONACHIE: I understand so, your Honour. That is the impression I have from the evidence and I am fairly certain that that is right.
CRENNAN J: That is right, thank you.
MR MACONACHIE: And, then he says:
Yes, of course?‑‑‑Say I’m here and say he was there I passed it like that, I think. That’s what I recall.
Well, his Honour had the advantage of seeing these two men not only give their evidence and hear what they had to say, but he saw them, no doubt, gesticulating and demonstrating and it was with the assistance of that material, that you can never hope to have, that the trial judge made the findings that he did:
Would it be fair to say that you passed it directly back towards him?‑‑‑No, in front.
My learned friend, Mr Tedeschi, tried manfully to get Mr Kelleher to say something that might incriminate him with a casual act of negligence but failed to do so. Mr Kelleher was firm about the way in which he passed it and demonstrated, as is plain, to his Honour how he did:
Did you give him assistance in terms of trying to help him to get his arm out of the hose?
It is as plain as day that Mr Kelleher, when he says, “That’s what I recall” at about line 37, is saying “I did not see how his arm got in there. I passed it back to him. Everything was sweet”. I am reminded at page 163, line 38, immediately after the passage I have just read:
Would it be fair to say that you passed it directly back towards him?‑‑‑No, in front.
Okay. Did you see how his hand came to be caught in the hose?‑‑‑No.
Well, that supports the proposition that having passed and successfully completed the act of passing the hose to Mr Kuhl and putting him in the position he would be in if he were just using it normally, it was sometime after that what happened happened because Mr Kelleher did not see it.
CRENNAN J: Well, that is consistent with it happening very quickly I suppose is one way of looking at it.
MR MACONACHIE: Well, your Honour, it is consistent with it happening after the action of passing it had been concluded and that the action of passing it had nothing to do with what caused him to get his arm entrapped. That is the essence of the finding by the trial judge who saw these men, saw how they gestured and gesticulated. The passing had nothing to do with how he got his hand caught. How he got his hand caught he did not prove. The defendant did not have to prove that it was something for which it was not responsible. There is a gap in the plaintiff’s evidence and he fails.
Can I come to the causation point. Justice Wheeler excluded two of the ways in which this hose might have been dealt with and then finds that a break box, “a very good safety device”, ought to have been provided, but it is 10 to 15 metres away from where the plaintiff is. It has to be manually operated. It is not something that reacts automatically to somebody’s body or arm being caught in it. If it did, obviously enough, every time there was a blockage it would immediately shut down. Well, there was no suggestion that that happened after the event.
GUMMOW J: Where is the evidence as to this distance?
MR MACONACHIE: It is in the evidence of Mr Collins, I think, your Honour. It is in the evidence of Mr Collins and was not the subject of contention and, indeed, my learned friend accepted it in his submissions.
GUMMOW J: Line 20 on 146, I think.
MR MACONACHIE: Absolutely.....so that one has to accept the following. A blockage occurs. In order for the blockage to be removed successfully, except in the one circumstance where you cut the hose, remove the blockage manually, tape the hose back up again, in all other circumstances it is necessary for the blockage to be cleared for suction power to be effective, otherwise you are not going to get rid of the blockage. Therefore the break box has to be seen to operate in that situation.
If somebody were to inadvertently get their arm or their leg or some other aspect of their body caught, either drawn into or suctioned onto the hose, someone, whether it be the individual involved who, on my learned friend’s hypothesis, can take advantage of the flexibility of the hose – no evidence about that, about how flexible and what could be done – move 10 to 15 metres, slide the aperture open, all of this while he has got his arm down the hose, how long is that going to take? Mr Kuhl had his arm in the pipe for 30 seconds or so. How long, nobody knows, would it take for somebody in the plaintiff’s position to be able to struggle his way around to the break box and open it thereby causing a reduction in suction at the arm end, if I can call it that?
Was the damage to his arm done the instant it was drawn in, at the force at which it was drawn in? No evidence to say one way or the other. Was it caused by the amount of time that it was caught in the pipe? No evidence to say one way or the other. Was it caused by the attempts to have his arm drawn out of the hose? No evidence one way or the other. No evidence about how long it would have taken absent the break box and two men in operation to get a message to the truck 60 metres away. There is some evidence about it, that the hole watcher having to radio down to the truck and the like. The short point is, whether two men should have been there, whether the break box should have been there. There is just nothing to say that that which happened would have been any way different at all, and the Betts v Whittingslowe approach does not help.
HEYDON J: Mr Kelleher was presumably 10 or 15 metres away from the box, if it had been in place?
MR MACONACHIE: Yes. If it happened as quickly as some think it might have happened, Mr Kelleher would have had to have moved – well, firstly to have recognised what had happened, to react to it, then to move, so that one is dealing with a situation of five, 10, 15 seconds, we do not know. What was the cause of the harm? Was it the initial insult? Was it the length of time? There is just nothing to tell one what would have been the outcome, and only a medical man could have done so. They are the submissions for the respondent.
FRENCH CJ: Thank you, Mr Maconachie. Yes, Mr Nugawela?
MR MACONACHIE: Sorry, your Honour. Can I take you to exhibit 10. There is one thing I need to point out to your Honours. You will find that at page 182 of the appeal book and it is introduced into evidence in the evidence of Mr Collins at page 150 and at page 154, line 15 or thereabouts, but particularly line 10:
Is that your document?‑‑‑Well if I can put them together you’d say yes, but there’s been changes to this one.
. . .
‑ ‑ ‑ what changes do they reflect?‑‑‑They just put on –
et cetera. Up the top, line 5 or thereabouts:
I don’t know whose writing it is, or handwriting it is, because it’s not mine.
It is not Mr Collins; he was the author of the document. Then at page 154, line 35:
Do you accept that it doesn’t say in that document that vacuum hoses are not to be passed under load?‑‑‑Yes.
At page 155:
do you accept that in exhibit 10, which you say is your document, you don’t have in there as a safety precaution, “Not to pass the hose under load”?‑‑‑Have you about passing?
Yes?‑‑‑No.
BELL J: Just on that question of the passing of the hose underload, do you deal at all with the matter that Justice Wheeler raised of the acceptance in your pleading of contributory negligence of the risk attached to passing the hose underload?
MR MACONACHIE: No, I do not, because it cannot be, as it were, an admission, a pleading particularly of contributory negligence, when there is a denial of negligence and an allegation of contributory negligence. They are necessarily in the alternative and have to so be. They are just
indications of the factual material and the outcome of that factual material, in one sense, that the party pleading intends to address at the trial. I am reminded, the allegation of contributory negligence was withdrawn prior to the commencement of the trial. We do not address it, with respect, because it goes nowhere on any view because it is a pleading in the alternative.
FRENCH CJ: Yes. Thank you, Mr Maconachie. Yes, Mr Nugawela.
MR NUGAWELA: My learned friend made a submission that the passing of the hose was completed. In our submission, that is not clear in the evidence. The act of passing requires the receiver to accept and not just accept, but safe acceptance of a hose under significant pressure. At appeal book 81 ‑ ‑ ‑
GUMMOW J: Wait a minute. What finding of the trial judge are you controverting or substituting or adding?
MR NUGAWELA: Commenting on his Honour’s findings at appeal book 196 in response to my learned friend’s submission that the hose had already been passed, your Honour Justice Gummow, and at appeal book 196 his Honour the trial judge said this:
It was at that stage that the plaintiff’s left upper limb was drawn into the hose where it remained for some time ‑ ‑ ‑
GUMMOW J: Sorry, which paragraph?
MR NUGAWELA: Appeal book 196, the first three lines, right at the top of 196. If one goes to the evidence at 81, lines zero to 5:
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.
Now, this is the process of passing and receiving and the process of accepting it. The next thing, his arm was sucked up. So to say that, well, passing is just a passive thing, once Kelleher got it out of his hands, it is not his problem anymore, we say is an insufficient analysis. If he is going to unblock it and convey it back, he must make sure that the recipient is in a position to accept it safely, and the only way to do that is to turn it off before passing it, which was the post‑accident modification at the end of the day. How difficult was that? There was no explanation that that would ‑ ‑ ‑
FRENCH CJ: Let us assume that you are passing with the nozzle pointed away from the recipient. What is the risk associated with passing?
MR NUGAWELA: With the hose under such ‑ ‑ ‑
FRENCH CJ: That is peculiar, if you like, to the act of passing as distinct from just operating and getting your arm caught.
MR NUGAWELA: I understand. One is passing a hose with 1500 pounds per square inch pressure.
FRENCH CJ: It has always got that.
MR NUGAWELA: Fifty times more powerful than a domestic ‑ ‑ ‑
FRENCH CJ: Yes, it has always got that when he is operating it or when he is receiving it or when he is handing it back to somebody. So, what is the risk associated with passing?
MR NUGAWELA: As her Honour Justice Wheeler noted, the risk of mishap or mishandling.
GUMMOW J: What is the evidence of that?
MR NUGAWELA: In answer to your Honour Justice Gummow, the inferences that were open were limited. One was a deliberate action on his part, two, contributory negligence and, three, carelessness. Now, contributory negligence was not in issue in this primary liability trial. Deliberate action could not have fairly been in issue. There was no plea of novus actus interveniens. It was not put to him that he voluntarily assumed the risk. So by process of deduction and drawing inference and exclusion, her Honour Justice Wheeler came to the correct conclusion that it must have been inadvertence, foreseeable risk of an obvious hazard, they come to pass. I took your Honours to the evidence, and you can see the immediacy between taking the hose and his arm getting sucked in. Kelleher did not witness it. The plaintiff gave that evidence and the trial judge came as close his Honour did at 196 to saying that when the hose was passed back to him it was at that stage that the upper limb was drawn ‑ ‑ ‑
GUMMOW J: You have to read that then with paragraphs 11, 12 and 13.
MR NUGAWELA: This is the reluctance point.
GUMMOW J: Which is a development of the phrase “at that stage”.
MR NUGAWELA: It is. I accept that.
GUMMOW J: It is a very carefully written judgment, if I may say so.
MR NUGAWELA: The difficulty we have with that, your Honour, is one of natural justice. It is unfair for the trial judge, as her Honour Justice Wheeler said, to come to an inference of deliberate conduct when that was simply not put to him.
GUMMOW J: But it does not matter whether it was deliberate or not deliberate, does it? If it is not there, it is not there.
MR NUGAWELA: The inferences that must be drawn from the evidence, such as it was, were of limited choice. It is either deliberate or careless or.....We can do no more than point to the inference drawing exercise conducted by her Honour Justice Wheeler, fairly conducted we say.
FRENCH CJ: If one goes to paragraph 11 of Justice Wheeler’s judgment at page 214, her Honour sets out there – I know we have been to this before – “The only inferences open”, the first one relates to a misunderstanding of how Kelleher expected him to take it. There was actually no evidence about that, was there? I mean, there seems to have been evidence of a misunderstanding as to whether it had been unblocked or not, but that had nothing to do with how he was to receive it.
MR NUGAWELA: Yes.
FRENCH CJ: So if we can put that to one side, then we have a slip or a misjudgement of distance. The actual mechanism of that is not teased out at all.
MR NUGAWELA: Yes, inadvertence.
FRENCH CJ: Yes, that is a conclusionary term. It does not tell us the physics of it.
MR NUGAWELA: The man clearly could say no more than he did. He was not cross‑examined to come to the conclusion ‑ ‑ ‑
FRENCH CJ: Yes, sure. I am just looking at the inferences that her Honour is able to identify on the evidence that she has before her and, in a sense, they do not illuminate, if you like, the mechanics of what occurred in terms of hypotheses which are open.
MR NUGAWELA: Other than to say that short of voluntary action or deliberate conduct on his part something must have happened.
FRENCH CJ: Something went wrong.
MR NUGAWELA: The immediacy of it was that his arm got sucked in by this very powerful hose. Now, if there were reasonable precautions that could have been taken to prevent this obvious and foreseeable risk, then they should have been taken. They were taken, albeit too late.
GUMMOW J: What were they?
MR NUGAWELA: Two things, your Honour. One is the instruction not to pass the hose underload and the other was the break box, of course.
FRENCH CJ: Absent the break box, in the circumstances of this case you say the only way compatible with the discharge of the duty in passing the hose was to turn it off?
MR NUGAWELA: Yes, as was done post‑accident. My learned friend took your Honours to exhibit 10. The document might or might not be constructed in a particular way, but the reality of the situation, the temporal reality, was that after this injury the instruction changed, “Do not pass the hose underload”.
BELL J: I think there is some controversy about that, Mr Nugawela.
MR NUGAWELA: I have put in our reply submissions the references to that in paragraph 5 of our reply submissions. I will see if I can pick them up, your Honour. I am not looking at exhibit 10 itself, your Honour, but the evidence that subsequent to the injury the instruction was given not to pass it without turning it off. The document probably can be put to one side. That is my submission. Buried in the references in paragraph 5 of our reply is uncontroverted evidence that there was a changed system.
My learned friend took your Honours to the Court of Appeal judgment at paragraph 75 on page 229 that there was no evidence that the hose behaved differently when it was passed under pressure. There was no evidence that it writhed or behaved haphazardly. We say, with respect, that is the wrong question to ask. This hose, we say, was a dangerous hose in its normal operation without a break box and made more dangerous we say, obviously, in the act of passing it to a co‑worker.
The third matter is, my friend’s reliance on the trial judge’s conclusion, or comment rather, because it is not a finding that he deliberately acted carelessly or deliberately inserted his hand, but the inference that can be drawn from a description of his demeanour that he was reluctant to say for some reason. The objective facts, your Honours, on which a proper inference can be drawn comes from the judgment at paragraph 4 of her Honour Justice Wheeler in part, and we have cited in our submissions the Court of Appeal of New South Wales decision in Coastwide Fabrications. It is at footnote 3 of our submissions.
GUMMOW J: What is the citation?
MR NUGAWELA: It is Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 perhaps starting at paragraph 62. Your Honour Justice Heydon, as your Honour then was, set out the proper approach to drawing inferences from objective facts where there is no direct evidence of what occurred. I would just ask your Honours to read paragraphs 62, 63 and 64 of that judgment.
HEYDON J: Is this Coastwide Fabrication?
MR NUGAWELA: It is, your Honour, Coastwide Fabrication ‑ ‑ ‑
HEYDON J: There must be an error in the date; 2009.
MR NUGAWELA: The date is wrong. I am so sorry, I will give your Honour the correct date. It is 2009. I misattributed it to your Honour Justice Heydon. I think there was another case in our submissions.
CRENNAN J: Is it Makita v Sprowls that you are thinking of?
MR NUGAWELA: No it was not Makita v Sprowls. It is ‑ ‑ ‑
GUMMOW J: We had better find out who said what in this mysterious 2009 case. It is much better to bring these things to court in hardcopy, if I may say so.
MR NUGAWELA: It was Justice McDougall. I am sorry, we will attend to that immediately. It was Justice McDougall. My learned friend’s submissions at paragraph 29, which he touched upon, says that it:
is implicit in the decision of the Court of Appeal, if not expressed, that the supervision and direction of the WOMA workers in their interaction with the Transfield employees was the obligation of Transfield –
That, we say, flies in the face of the explicit findings of the majority that it was WOMA who was responsible for the supervision of clearing the hoses and operating the truck. I have taken your Honours to the Court of Appeal judgment in the summary of the evidence in relation to that it cannot be an implicit finding, it flies in the face of the evidence and the findings of the majority. It is, we say, axiomatic, your Honours, that vacuum cleaners sometimes behave in unpredictable ways. They suck up things they are not
meant to suck up, trouser legs and bed sheets and curtains and the like. So that the fact that the intention to pass the vacuum cleaner with the front end pointing forward was there on the part of Kelleher, the fact is that under the circumstances, given the tremendous force, it was foreseeable that there was a hazard. Finally, in relation to when the damage was sustained, at 216, paragraph 18:
So far as a worker operating the hose along (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.
It is clear that the struggling process and the efforts he had to take and with the assistance of Mr Kelleher must have caused some injury to him, worsen the injury, the extent of that obviously was not delved into because this matter was where the quantum of damages were agreed between the parties, as was the question of contributory negligence being compromised as part of that overall quantum. Those are the only matters we can speak by way of reply, your Honour.
FRENCH CJ: Thank you, Mr Nugawela. The Court will reserve its decision. The Court will adjourn for a short time before reconstituting.
AT 12.09 PM THE MATTER WAS ADJOURNED
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