Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 13 April 2000 P39/1999
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of Western Australia
Representation:
E M Heenan QC with D M Bruns for the appellant (instructed by Yesner & Company)
J R Criddle with H M O'Sullivan for the respondent (instructed by J R Criddle)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Schellenberg v Tunnel Holdings Pty Ltd
Negligence – Res ipsa loquitur – Circumstances in which res ipsa loquitur can be used – Effect of the application of res ipsa loquitur – Whether res ipsa loquitur affects the burden of proof – Whether res ipsa loquitur more than a permissible process of reasoning.
Practice and procedure – Amendment – Reopening of issues at trial – Need for care.
Words and phrases – "res ipsa loquitur".
GLEESON CJ AND McHUGH J. The principal question in this appeal is whether the plaintiff can rely on the doctrine of res ipsa loquitur to make out a case of negligence in circumstances where a hose, carrying compressed air, which he was using in the course of employment, became loose and swung upwards striking him on the face. In our opinion, the doctrine of res ipsa loquitur did not apply, but, even if it did, its operation was spent once the trial judge found that the cause of the occurrence was the hose separating from a coupling to which it was attached. Once that finding was made, the question in the case was whether the plaintiff had proved that the separation was the result of the defendant's negligence. Because there was no evidence that established that the defendant was negligent in the assembly, inspection or maintenance of the hose and coupling, the Full Court of the Supreme Court of Western Australia was right to hold that the plaintiff's action failed.
The appellant ("the plaintiff") sued his employer, the respondent ("the defendant"), in negligence for personal injury caused by a work place accident. At trial, the plaintiff failed to establish any specific allegation of negligence. He was permitted, however, to amend his pleadings to make "an allegation that the fact that the air hose separated from the fitting was in itself evidence of negligence."[1] The learned trial judge, Muller DCJ, found for the plaintiff on this basis, a finding that was unanimously overturned on appeal[2]. In our opinion, the Full Court was right to so hold. On proper analysis, the "principle" of res ipsa loquitur is inapplicable to the facts of this case. Furthermore, the learned trial judge's specific findings based on analogous processes of inferential reasoning are not supported by the evidence. The appeal should be dismissed.
[1]Schellenberg v Tunnel Holdings Pty Ltd unreported, District Court of Western Australia,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18
Case
[2000] HCA 18
Decision Date
CaseChat Overview and Summary
In *Schellenberg v Tunnel Holdings Pty Ltd*, the High Court of Australia considered an appeal from the Full Court of the Supreme Court of Western Australia concerning a claim in negligence. The dispute arose from an incident where a hose and coupling separated, causing injury to the appellant. The appellant alleged negligence on the part of the respondent, Tunnel Holdings Pty Ltd, in the assembly, inspection, or maintenance of the compressed air equipment.
The legal issues before the High Court included the circumstances in which the doctrine of *res ipsa loquitur* can be applied, the effect of its application on the burden of proof, and whether it is more than a permissible process of reasoning. The court also considered the principles governing amendments and the reopening of issues at trial, although these were not central to the final determination.
The High Court, in dismissing the appeal, reasoned that the trial judge had erred in applying *res ipsa loquitur* and in drawing inferences of negligence. The Full Court had found that the accident was of a kind that could occur without negligence, particularly in light of expert evidence suggesting a risk of a hose clamped in a normal way coming apart. Furthermore, the Full Court determined that there was insufficient evidence to establish that the respondent had failed to use proper care in the assembly, inspection, or maintenance of the equipment, or that such care would have prevented the separation. The High Court agreed with the Full Court that the trial judge's reliance on the absence of evidence from the respondent regarding assembly, inspection, or maintenance was an impermissible reversal of the onus of proof, as there was nothing requiring the respondent to lead such evidence.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
These factors suggest that the defendant may not have had sufficient control to attract the principle of res ipsa loquitur. However, the question whether the defendant still has control for the purpose of the principle when an object or instrument is in the sole custody or possession of the plaintiff is a difficult one. In the United States, courts have often held that the principle applies although the plaintiff has sole custody or possession or de facto control where the defendant retains the legal right of control or where it is more probable than not that the negligence occurred while the defendant had control[58]. In Fletcher v Toppers Drinks Pty Ltd[59], the New South Wales Court of Appeal held that a tribunal of fact was entitled, but not required, to draw an inference of unspecified negligence against the bottler of a soft drink when the bottle exploded as the plaintiff unscrewed its top. The Court so held notwithstanding that there was no evidence as to how the bottle was handled by a third party from the time it left the bottler's premises until the time it reached the plaintiff's home.As it is not necessary to decide the issue of control in this case, we need say nothing more about it.There was insufficient evidence to support a finding that the compression equipment was negligently maintained[58]See eg Mobil Chemical Company v Bell 517 SW 2d 245 (Tex 1974); Qualls v United States Elevator Corp 863 P 2d 457 (Okl 1993); Giles v City of New Haven 636 A 2d 1335 (Conn 1994); Trujeque v Service Merchandise Company 872 P 2d 361 (NM 1994).[59][1981] 2 NSWLR 911. As the above discussion of expert evidence and res ipsa loquitur illustrates, the fact that a plaintiff cannot attract the operation of the maxim does not prevent him or her relying on an analogous process of inferential reasoning to establish a specific particular of negligence. In this case, the learned trial judge effectively found that the defendant had negligently failed to properly assemble, inspect or maintain the relevant equipment[60]. That finding is outside the scope of res ipsa loquitur as it is a specific allegation of negligence, even though it was premised on the general finding that the hose was "insecurely fastened". The finding that the hose was "insecurely fastened", however, is either a statement of the obvious, flowing from the fact the hose actually separated – in which case it does not speak one way or the other – or it is an erroneous application of res ipsa loquitur.[60]Schellenberg v Tunnel Holdings Pty Ltd unreported, District Court of Western Australia, 10 July 1997 at 18-19. The finding that the equipment was not properly assembled, inspected or maintained, however, need not necessarily rely on the finding that the hose was "insecurely fastened". The trial judge relied on the fact that no "evidence was adduced by the defendant as to how the compressed air equipment was assembled, inspected or maintained."[61] Thus, unless his Honour reversed the onus of proof, he drew a Jones v Dunkel inference in favour of the plaintiff[62]. But there was nothing which called on the defendant to lead evidence in respect of these matters: its failure to call evidence therefore had no probative significance and could not assist the drawing of any inference in favour of the plaintiff. In Cross on Evidence[63] Mr Dyson Heydon QC declares that:"[T]he rule [in Jones v Dunkel] only applies where a party is 'required to explain or contradict' something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts 'requiring an answer'." (footnotes omitted) [61]Schellenberg v Tunnel Holdings Pty Ltd unreported, District Court of Western Australia, 10 July 1997 at 18.[62](1959) 101 CLR 298; Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 per Handley JA; R v Beserick (1993) 30 NSWLR 510 at 532 per Hunt CJ at CL (Finlay J and Levine J agreeing).[63]6th Aust edition (2000) at [1215].
Decision
Reasons for decision
GLEESON CJ
HUGH J
GAUDRON J
(dissent)
HAYNE J
On the basis that the hose and coupling were insecurely fastened, his Honour concluded that there had been negligence on the part of the respondent. That was to be inferred from the fact that the equipment was under its control and, also, from its duty "to ensure that it was reasonably safe for the plaintiff and other employees to work with". There being no evidence from the respondent "as to how the compressed air equipment was assembled, inspected or maintained" and no evidence of a system "to ensure that the equipment was checked regularly for incorrect installation, loose fastenings or other possible defects", his Honour concluded that that inference was not displaced, even though there was evidence that the appellant was in charge of the compressors and compressed air equipment. From that decision the respondent appealed to the Full Court of the Supreme Court of Western Australia.The decision of the Full Court The Full Court (Pidgeon, Walsh and Ipp JJ) unanimously allowed the respondent's appeal and entered a verdict for the respondent. Pidgeon J was of the view that the trial judge erred in finding that the hose and coupling had been insecurely fastened. However, it was critical, in his Honour's view, that there were sufficient known facts to preclude the trial judge from drawing an inference of negligence. The fact which, in his Honour's view, precluded that inference was that, according to the evidence of an expert witness called in the case for the appellant (the respondent in the Full Court), there was "a risk of a hose clamped in a normal way coming apart". On his Honour's analysis, an inference of negligence could only be drawn if "the accident was of a kind which does not ordinarily happen without negligence" and the effect of the expert evidence was that the accident was of a kind that could. It will later be necessary to refer to this evidence in somewhat greater detail. In the view of Walsh J, the respondent (the appellant in the Full Court) was entitled to a verdict in its favour because, even if the hose was not securely fastened to the jamec coupling, "there was no evidence that adequate maintenance would have prevented it from separating or that adequate maintenance was not provided" and, more generally, "there was no evidence that adequate maintenance and proper care was not provided". Ipp J was also of the view that the trial judge erred in finding that the hose was insecurely fastened to the coupling. However, his Honour allowed the appeal to the Full Court on the basis that "[t]he maxim res ipsa loquitur ... generally applies when the cause of an accident has not been established". Ipp J held that, "[o]n the basis of [the trial judge's] findings, the cause of the accident was known in the sense that it must have been one of the factors to which [the trial judge] referred". By "factors", Ipp J was referring to the various factors, extracted above, which the trial judge cited as possible causes of the hose coming away from the coupling. Thus, in his Honour's view, for the appellant (the respondent in the Full Court) to succeed, "he had to prove that the management did not use proper care in regard to all [those] factors".