Schellenberg v Tunnel Holdings Pty Ltd

[1999] HCATrans 354

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P39 of 1999

B e t w e e n -

PETER SCHELLENBERG

Appellant

and

TUNNEL HOLDINGS PTY LTD

Respondent

GLEESON CJ
GAUDRON J
McHUGH J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 20 OCTOBER 1999, AT 9.32 AM

(Continued from 19/10/99)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Heenan.

MR HEENAN:   May it please, your Honour, we have discovered to our chagrin that there have been several pages of the appeal book where there have been omissions.  In volume two at page 209, which is the report of Mr van der Meer, which became exhibit 9A, your Honours will see at page 208, the bottom right-hand corner is page 5 of the exhibit and page 209 is page 9 of the exhibit, so the missing pages are 6, 7 and 8.  We have tracked the original exhibit, your Honours, and have copied it, and in the process we have taken advantage of making a colour reproduction of the photographs.  So may I ask that those materials be included as supplementary to the appeal papers.  I have discussed this with my learned friends and they have no objection to this course being followed.

GLEESON CJ:   Yes, thank you.

MR HEENAN:   And, your Honours, when we prepared our written outlines, we decided that the chronology referred to by the practice direction was perhaps not necessary because everything happened on the one day, but in case a chronology is needed we have prepared a short one page chronology outlining the principal events and again I have discussed that with my friend and ask that that be before the Court simply as an aide‑memoire.

Your Honours, in the hope of making good my estimate as to time, can I briefly make reference just to several additional authorities which we have referred to?  There is an article in the Louisiana Law Review for 1984 volume 44 at page 1399 by a Judge Tate, a circuit judge of the United States Court of Appeals, celebrating the career of a distinguished academic jurist in Louisiana, Wex Malone.  The article was called “Wex Malone and Res Ipsa Loquitur in Louisiana Tort Law”.  Professor Malone appears to have spent considerable time writing on the subject of torts and, in particular, res ipsa loquitur, and ‑ ‑ ‑

KIRBY J:   What, a whole lifetime devoted to writing on res ipsa?

MR HEENAN:   Well, I am sure that ‑ ‑ ‑

KIRBY J:   Any more obscure…..have the heart to abolish it.

MR HEENAN:   Well, I think his philosophy was to distinguish it to the point that it was assisted with other logical doctrines.  The only other point of explanation is that he was on a committee of advisers to the reporter of the American Law Institute that shaped the Restatement.

Your Honours, the article is useful because it explains how a number of the encrustations, which had accumulated around the doctrine, have been steadily rejected by the logical process of writings of this author and by a process of judicial refinement in the States and in the Federal Courts in the United States and how the logic which is behind the articles in the Restatement came to develop.  There is perhaps one passage which is useful to us and that is on page 1405, well into the article, illustrating the point that the inference drawn from the maxim need only point to the requisite conclusion on the balance of probabilities.  Therte it is a discussion of a case in the Louisiana Supreme Court of Boudreaux v American Insurance Co.

GLEESON CJ:   Is Louisiana a common law jurisdiction?

MR HEENAN:   I am not able to answer that, your Honour.

McHUGH J:   I do not think it is.

MR HEENAN:   There does not appear to be any difference when it comes to the application of the res ipsa loquitur doctrine, at least so far as this article would suggest, but, at the foot of page 1405 is the passage from the decision in that case:

The circumstantial evidence requisite in civil negligence cases need not negate all other possible causes of injury, as the opinions of the previous courts seemed to hold.  It suffices if the circumstantial proof excludes other reasonable hypotheses only with a fair amount of certainty, so that it be more probable than not that the harm was caused by the tortious conduct of the defendant.

And so on.  Now there are other passages in the article upon which we rely and which are consistent with the position in the Restatement.

McHUGH J:   Well I must say I have difficulty in seeing how this case has got really anything to do with res ipsa, as such.  Res ipsa has historically been concerned with situations where the only relationship between the plaintiff and the defendant has been the occurrence of the injury, but this is a case of the supply of an article to your client and it does not mean that the sort of reasoning process that is involved in res ipsa does not apply here, but res ipsa as such seems to me to be remote in this case, and I noticed in the Restatement example 10 yesterday, it was said that when somebody is given a bottle of soft drink which explodes, that person who has got the problem res ipsa does not apply, but it is a case of supply and, prima facie, one would have thought, it would mean supply of the defective product, it raises an inference of negligence; it has nothing to do with res ipsa as such.

MR HEENAN:   Well, your Honour, that analysis certainly conforms to some of the older learning on the subject which sought as a distinct species on liability and tort, but, if one takes what we submit, with respect, is the modern view, particularly in this Court, is that it is simply a process of reasoning towards a conclusion of fact.

McHUGH J:   Well, that may be so, but I do not know why you have invoked this question of res ipsa in this particular case.  Your client’s employees have been supplied with a defective piece of equipment.  He says, I had nothing to do with its defect.  Does that raise an inference of negligence against the employer?  Subject to hearing what the respondent says, I would have thought the answer was yes.

MR HEENAN:   Well, that is the role that we consign to the doctrine.

McHUGH J:   But I do not think it has got anything to do with the intricacies of whether or not it is under your exclusive control or the employer’s exclusive control or does not in the ordinary course of events happen; it is just an ordinary question of reasoning.  If I go an buy a Black and Decker tool and it explodes in my hand, is it not like – I have not read it for years on this point – Australian Knitting Mills v Grant, where ‑ ‑ ‑

MR HEENAN:   Yes, the…..underpants

McHUGH J:   Yes.  Somebody gets some underpants which are defective and this Court and the Privy Council said, there is an inference of negligence, that somewhere along the chain there has been a problem.

MR HEENAN:   Well, your Honour, we would respectfully submit, that that process of reasoning is what the doctrine is all about and that the doctrine does not go further or mean more or apply more widely or less widely than that process of inferential deduction and that that is the correct role for the doctrine and that would seem to be the view of the commentator, Dr McInnes in his article in the Law Quarterly Review, in reviewing Fontaine’s Case (1998) 114 LQR 547.  That is on the various authorities which we have listed.  Speaking of Fontaine’s Case, the learned author says:

After a long and muddled history, res ipsa loquitur has been laid to rest by the Supreme Court of Canada.....Few will mourn its passing.

KIRBY J:   He, of course, is a Canadian jurist and therefore has to work within a jurisdiction in which the Canadian Supreme Court has spoken.

MR HEENAN:   Yes, but the article has been accepted for publication in one of the premier English journals, so ‑ ‑ ‑

KIRBY J:   That might be to soften up those who have spent a whole lifetime working on res ipsa, that things are looking a little grim, but at some stage I am going to make my third attempt to ask you, what do you want the Court to do, because there are certain formalities that have to be observed if you are telling us that we ought to follow the Supreme Court of Canada and rid the lexicon of talk of res ipsa loquitur.  Now, you do not seem to be saying that and yet you are having a bet each way; I would like to know what your fundamental submission is for doctrine?

MR HEENAN:   Well, for doctrine, your Honour, our submission is that the Supreme Court of Canada points the way to the principal resolution of the doctrine.

KIRBY J:   Well, they would approach this case, as I understand them, and I do not pretend to understand it fully, much along the lines that Justice McHugh has just put to you.  They would get rid of all this talk, they would certainly get rid of the Latin tag and they would say, this is simply a matter of looking at all the facts and drawing the inferences that are available in the facts, including inferences from silence and absence of evidence from those who are in the best position to provide evidence.  Now, if that is what we should do, that is quite an important step for this Court to take for the jurisprudence of this country and it is turning its back on at least seven or eight decisions of the Court, in a sense, where they talked of res ipsa loquitur.  Now do you invite us to do that and if so, why?

MR HEENAN:   Your Honour, the answer is, after due consideration overnight, because of the inevitability of this question, yes, but my hesitation yesterday in dealing with the matter was because it attracts the inevitable response that one is calling into question settled doctrine of the Court and inviting, as your Honour has just paraphrased, the abandonment of a doctrine which has been recognised in decisions reaching back to 1935 or earlier.  Our position in relation to that is that that is not what the principle that we are contending for entails and that the principle that we are contending for is consistent with the exposition of the doctrine in cases ‑ ‑ ‑

KIRBY J:   I understand that is what you say, but is your position this, that you say you can succeed in this appeal within the constraints of current doctrine about res ipsa loquitur, but that if you cannot succeed in your appeal within those constraints, then you invite the Court to follow the Supreme Court of Canada, get rid of the doctrine of res ipsa loquitur and simply look at all of the inferences that are available in the facts of the case.

MR HEENAN:   Well, yes it is, your Honour, except that our position is that there is really no significant difference between the settled doctrine of this Court and the exposition in Canada, except the discarding of the relevant tag.

KIRBY J:   We have certain responsibilities if we are to say that the court in the past either misconceived or new light has been thrown on doctrine and we can develop it to a new state; I mean, that is not a thing to be done lightly.  So you have got to, I think, make very clear whether you are asking this Court to say that res ipsa loquitur creates more problems than it is worth, it is an erroneous label, it is a misleading label and we should simply look at all the facts and draw inferences from all the facts and not be confused by this doctrinal discussion that has gone on for the last 70 years.

MR HEENAN:   Your Honours, with all due respect to your Honours, we do contend for that position.

McHUGH J:   The problem I see is this, that historically the doctrine of res ipsa has both created the duty of care and also evidenced its breach.  Here you have a relationship in which the duty of care is already owed to your client; the only issue is, is there a breach of the duty that is already owed to your client?  That is why I have this difficulty about why you want to rely on res ipsa, Mr Heenan.  In the end the reasoning process may be identical under both situations, but it just seems to me to create a complication.

GAUDRON J:   And, if I could add to what Justice McHugh says, in one sense, because you have established the duty of care, because it exists and does not have to be inferred from anything, the process of inference becomes easier; the encrustations on the so-called doctrine of res ipsa loquitur come about because you are asking it to do a number of things that are not necessary in this case.

MR HEENAN:   The answer that we would offer to both those observations, your Honours, is that, notwithstanding that in the past – and perhaps before the development of the modern law in negligence in Donohue v Stephenson, which post‑dated this doctrine - there might have been a scope for the doctrine in identifying a duty of care.  That has not been its function in recent times; really at no time going back to Donohue v Stephenson and certainly not since the decision of this Court in Zaluzna, that the existence of a duty of care is determined by issues of foreseeability, proximity and whatever is the third element yet to be clearly characterised, but that the process of the operation of the doctrine is really a process of inference leading to conclusions of fact rather than ones of law.  So to meet your Honour Justice McHugh’s question, we would have to acknowledge that it did not any longer have a role to play in the formulation of a duty of care.

GAUDRON J:   Well it might, it seems to me, Mr Heenan.  When you have got res ipsa loquitur, according to conventional analysis, all you have to do is prove the happening of the event; you have to prove nothing else.  All else is taken to flow from that, namely duty of care, that involves foreseeability and so on, plus breach, and you do not have to prove another thing.  Within that particular context there is obviously some basis for the encrustation, or encrustations as you call them, but when you are outside that case, when you have proved other things, why do you not just as an ordinary matter of induction or deduction look at all the evidence and see where it leads? 

MR HEENAN:   Well ‑ ‑ ‑

GAUDRON J:   Here you had proved a relationship, you had proved, in fact, the immediate cause, if not the legal cause, and the duty of care is one that has been exposed a number of times in the cases.  You prove foreseeability ‑ ‑ ‑

McHUGH J:   And, within that relationship, the standard of care requires something positive in this particular case, namely that the employer check the equipment, inspect the equipment; they are the sort of things that you do not really have in the standard res ipsa loquitur case.  You say in all probability was there negligence, but there is a positive duty, in effect, on an employer to take care that he or she supplies suitable equipment, et cetera.

MR HEENAN:   Most of the cases dealing with the application of the doctrine of res ipsa loquitur are accident cases:  fire in a service station, motor vehicle accidents, accidents in an industrial setting, and, in our respectful submission, the requisite element of proximity or one of the designated relationships is already obvious by the mere relationship of the parties.  The real role for the maxim to discharge in the past has been to infer whether within that relationship there has been a breach of a duty, because the accident suggests that what has happened would not occur, as the words go, without negligence, but negligence in that setting is used as a synonym for fault rather than extending to accommodating the presence of a duty of care, that already being obvious.  I cannot develop the matter further than the answers given.  I was going to draw ‑ ‑ ‑

HAYNE J:   Can I just take it one step further?  If one is to discard explicit or implicit reference to res ipsa loquitur, if one is simply to take the facts, they are, the equipment failed, the equipment was supplied by the employer and the further consideration is the employer owes a duty of care requiring the taking of positive steps.  Those three considerations standing alone, are they sufficient to lead to a finding of negligence?  When we come to dispose of this appeal do you say that they require a finding of negligence?  The two may be different.

MR HEENAN:   Well, they are certainly sufficient, your Honour.  We would say that the decision is - whether or not they require a finding of negligence is really a question of fact and that his Honour was justified in reaching the conclusion that he did and that it cannot be shown to be wrong.

HAYNE J:   And therefore the Full Court was wrong to interfere with the finding made at first instance?

MR HEENAN:   Yes, your Honour.

HAYNE J:   Yes.

MR HEENAN:   But the question which is behind, or which I infer is implicit in the propositions which have been put to me in the last five minutes, really raise the question of whether or not the learned trial judge was right originally to extend the trial, as it were, to deal with the so‑called allegations of general negligence and the doctrine of res ipsa loquitur, because ‑ ‑ ‑

HAYNE J:   Well, speaking for myself, that was not part of the inquiry.

MR HEENAN:   But it seems to be the case that the learned trial judge examined the allegations which were live in the trial, whether the valve should have been horizontal rather than vertical, the velocity fuse, the garden hose and so on, and disposed of all of those and thought that was the end of the case as presented.  Whereas, if one pays due respect to the decision of this Court in Doonan v Beacham (1953) 87 CLR 346, which is on our list, the overall question of negligence remains live and it is possible to make a finding of negligence which is within the general allegation, but not precisely within the terms of the particulars advanced.

So his Honour could have disposed of the case on that footing by a process of inference, inferential reasoning, which members of this Court have just illustrated.  Now, instead, he resorted to the use of the maxim res ipsa loquitur, which really, for the purpose that it was designed to serve and in its implementation, was just a process of inferential reasoning.  So the case could be disposed of in the manner your Honour Justice Hayne has outlined.

HAYNE J:   But, is a necessary step in the reasoning that reasonable inspection could have found or prevented the incident?  If that is a necessary step, where lies the evidentiary base for it at trial?

MR HEENAN:   In the supplementary reports of Mr van der Meer and the evidence of Dr Chew, that the feral or barbed leg or aperture on the Jamec coupling was rounded and worn.

KIRBY J:   But did not the primary judge prefer the evidence of the other experts to the evidence of Mr van der Meer?

MR HEENAN:   He appears to have taken the view that it was rounded.  I was about to say that he did not resolve the issue of whether the rounding was due to wear or design, but, either way, the evidence would support a conclusion that that was prone to slippage and that a friction, a coupling of that nature was prone to fatigue failure.  That does not appear to have been contested.

Your Honours, yesterday when I was asked a series of questions about whether or not the article was in the exclusive control of the defendant, I neglected to draw the Court’s attention to a positive finding in that regard by the learned trial judge at page 248 about line 15:

I am satisfied on the evidence that the defendant was in exclusive control of the equipment being used by the plaintiff.

And the matter goes on from there.  At page 249 there is the finding that:

it is more probable than not that the hose and coupling were insecurely fastened.

And at page 250 there is the observation that the absence of evidence by the defendant to displace the inference of carelessness is consistent with the finding of negligence.

GAUDRON J:   And that was also, I think you mentioned yesterday, in a situation in which the defence did go into evidence but omitted to give any evidence as to maintenance or inspection.

MR HEENAN:   Yes, on this issue or other system.

GAUDRON J:   Yes.

HAYNE J:   Well what do you do with the finding at page 248 line 34:

the end of the adaptor on the one end of the jamec coupling to which the hose was attached may have been defective or become worn;

Drop a few lines:

These are all speculative factors unsupported by any evidence.

What do we do with that comment?  It seems to deny the finding of where or defect; that is, seems to deny a finding that it could have been discovered.

MR HEENAN:   Your Honour, the observation by the learned trial judge is not so much a rejection of a finding that there was a defect or an undiscoverable defect, but one that the evidence on the point, as a matter of direct fact, did not permit such a finding, but that left the court in a position where one had to resort to inference.

GLEESON CJ:   Was the inadequacy of the system of inspection and maintenance one of the particulars of negligence relied upon?

MR HEENAN:   I think the answer to that, your Honour, is no.

GLEESON CJ:   That would explain, would it not, why there was no attention in the evidence directed to the question whether a proper system of maintenance would have exposed the defect?

MR HEENAN:   Yes, it would, your Honour, and neutralise the significance of the absence of evidence.

GLEESON CJ:   So, one approach to what has happened in this case is that a plaintiff makes out a case or seeks to make out a case of negligence based on particulars A, B, C and D and the trial judge says, they all fail, and now I will look at the question of general negligence, as you call it, and you then seek to sustain the conclusion on general negligence on the basis of an allegation of negligence that was not particularised or litigated.

MR HEENAN:   That would obviously be indefensible, but, it leaves the occurrence of the accident unexplained and leaves the Court in the position to assess the various hypotheses, and, if among the hypotheses it is more probable than not that the cause was due to negligence the maxim, or the doctrine, or the process of reasoning, can be sustained.  It would be wrong to do that and unfair in a procedural sense if one of the hypotheses was inconsistent with negligence and had not been adequately explored and that was not just a mere possibility but a serious possibility.  But, his Honour seems to have thought that the matters which he has discarded were not serious possibilities as contenders for the requisite balance of proof.    I am conscious that I have overextended my estimate.  That brings me to the conclusion of the submissions which ‑ ‑ ‑

McHUGH J:   Can I just ask you this, does not your whole case depend upon the two sentences on page 249 at lines 29 to 35?

MR HEENAN:   Yes, I think that is correct, your Honour.

McHUGH J:   Yes.

GAUDRON J:   And then at 40 to 45, finding that it was not properly fastened, it was ‑ ‑ ‑

MR HEENAN:   Yes.  One leads to the other.

GAUDRON J:   And with the earlier finding that it was in the exclusive control of the employer.

MR HEENAN:   Yes.  There is only one remaining thing for me to do, your Honours, and that is to draw attention to paragraph 30 of our written submissions which indicates that in the Full Court the respondent’s grounds of appeal dealing with damages were not adjudicated upon.  So, if we succeed here, we may not necessarily be entitled to be restored to our original judgment and it may be necessary for the Court to take some step to resolve the appeal on damages.

KIRBY J:   You agree that the order, in the event that you succeed, would be that the matter should be returned to the Full Court in order to deal with the remaining matter of damages?

MR HEENAN:   Yes.  That was the solution done in the Bank of South Australia v Ferguson.  We have mentioned that.  I just draw attention to that.

GLEESON CJ:   Thank you, Mr Heenan.

MR HEENAN:   May it please your Honours.

GLEESON CJ:   Yes, Mr Criddle.

MR CRIDDLE:   If it please your Honours, it is the respondent’s submission that this never was a case of res ipsa loquitur.  The closest that it ever case was the fact that it was pleaded at the behest of the trial judge, once he had formed the view that none of the specific areas of negligence had been made out by the plaintiff.

KIRBY J:   Is that to be meant as a criticism of the trial judge because you did not raise any criticism at the trial?

MR CRIDDLE:   There was an objection to the amendment which is not contained in the papers, but it was allowed and the matter proceeded on the basis of the case as amended.

KIRBY J:   As I understand it, the evidence was reopened without further objection.

MR CRIDDLE:   That was a term of the granting of the amendment, that further evidence be allowed to be given by both parties, yes.

KIRBY J:   We are not concerned with those preceding steps.

MR CRIDDLE:   No, your Honour, we are not.

KIRBY J:   It is just a forensic flourish that you are putting in.

MR CRIDDLE:   Yes.

KIRBY J:   Complaining about the unfairness of life.

MR CRIDDLE:   Your Honours, if I could take you to the judgment of the trial judge, it is clear that the trial judge dealt with each of the issues of specific negligence pleaded and found against the plaintiff on each one of those issues.  His process of reasoning is then demonstrated in relation to res ipsa where he finds at appeal book 246, 10, that the hose separated from the coupling, as alleged by the plaintiff and not at the connection between the coupling and the grinder, as alleged by the defendant.  His Honour found that the employer was under a duty:

to take reasonable care to avoid exposing an employee to unnecessary risks.

And, that is a proper finding by his Honour, and:

that the risk of the air hose becoming detached was reasonably forseeable.

Now, we do not object to that part of his Honour’s finding.  Then, in relation to the test, generally, his Honour adopted the test in Vozza v Tooth where he said the issue for determination in the matter was:

whether the defendant unreasonably failed to take measures or adopt means, reasonably open to the employer in all the circumstances, which would have protected the plaintiff from the dangers of his task.

Now, again, that is a correct statement of the issue that his Honour had to determine.  His Honour then looked at the issue of the prerequisites for the operation of the maxim and quite correctly said that:

The plaintiff must show that the accident was of a kind which does not ordinarily happen without negligence and that the defendant is responsible because it was in exclusive control of the equipment which caused the injury.

Again, the respondent says that that was a correct analysis.  The trial judge then went away from that and without making a finding that in the ordinary course of things the occurrence would occur without negligence of those in control, went on to infer that as:

the equipment was being used in the defendant’s workshop…..it was assembled by one of the employees engaged by the defendant.

That finding is made at appeal book 248, 25.  His Honour then went on that on being satisfied that the separation occurred at that point he found it:

more probable than not that the hose and coupling were insecurely fastened.

To the extent that that, as your Honours have indicated, states the obvious, the respondent has no problem with that finding.  The hose separated.  It is clear that it separated because, at that particular point of time, it was insecurely fastened, but that does not speak of fault of anyone.  His Honour then went on to draw the inference, and the basis of his drawing the inference is contained at appeal book 249 and 250 where his Honour said:

The equipment was ‑ ‑ ‑

McHUGH J:   I am sorry, could I just ask you this, Mr Criddle.

MR CRIDDLE:   Yes, sir.

McHUGH J:   Do you accept that the finding on 249 that:

it is more probable than not that the hose and coupling were insecurely fastened -

did I understand you to say you accepted that?

MR CRIDDLE:   Only to the extent that it would have to have been to have separated.

McHUGH J:   Yes.

MR CRIDDLE:   The explanations for that are numerous and his Honour makes the comment that it could have been any one of a number of things that led to that.  The evidence confirms that properly secured fastenings can come apart through fatigue.  That was the evidence of van der Meer, which was unchallenged and was not rejected by his Honour.  So, to the extent that it is simply a statement of what happened, namely, that it came apart and therefore was insecurely fastened at that immediate point in time, then the answer is, yes, we cannot challenge that finding.

McHUGH J:   Does not the case then come down to this:  was it open to his Honour to find that it was “more probable” than not that the insecure fastening was the product of failure on the part of an employee within the employer’s care rather than that the hose clip may:

have been defective

or –

the end of the adaptor on the one end of the jamec coupling…..may have been defective or become worn -

Does it not really come down to that sort of issue?

HAYNE J:   Or that there was a design defect?

McHUGH J:   Yes.

MR CRIDDLE:   Your Honours, all of these matters were, as his Honour correctly pointed out, matters of speculation and there is certainly no evidence from which the respondent says an inference could be drawn that one of the respondent’s employees did something wrong.  The only way that inference could be drawn is if the doctrine of res ipsa is capable of being invoked and that allows for the plaintiff to bypass proof of breach of duty.  That is really what this really what this case is about, whether in the circumstances of this case this plaintiff should be able to get over the absence of any evidence establishing breach to go straight to proof of the ultimate fact of negligence.  The respondent says that unless there are conditions that are placed on the ability of plaintiffs to do that, we are effectively countenancing strict liability.

McHUGH J:   In an employer/employee relationship, if you supply your employee with equipment which is defective?

MR CRIDDLE:   Yes, sir, but there is no evidence of any defect in the equipment in this case.

McHUGH J:   There is in the result, is there not?

MR CRIDDLE:   No, that is the difficulty.  The trial judge had before him a specific allegation that the defendant was negligent in allowing the plaintiff to work with hose couplings that were capable of working loose.  That was an issue that was specifically before his Honour.  His Honour dealt with it and said, “I cannot make that finding because there is no evidence”.  So, he says, “I cannot infer from the total lack of evidence in the case that there is any defect in the coupling, the hose, the clamp or anything else”.  He then goes on to use the process of logic to say, “Notwithstanding that there is no evidence I am prepared to jump to the conclusion that there was negligence”.

McHUGH J:   Can I put an illustration to you.  Supposing an employee is working with a tomahawk and the head comes off it and injures another employee.  Now, is there not a prima facie case of negligence against the employer, in those circumstances?  He supplied his employee with a tomahawk which is defective.

MR CRIDDLE:   Yes, the tomahawk is clearly defective but, in this case, the plaintiff has not established any defect.

McHUGH J:   The defect is that it was unsuitable for the task in that it separated.  Now, there are a number of reasons why it may have separated.  The question, it seems to me, is whether or not it is more probable than not that it was due to employer negligence rather than some defect in the – supposing it was a defect in the hose clip.  There may been a number of reasons.

MR CRIDDLE:   Yes.  Your Honour, the plaintiff was the person who was using this machine on the day it happened.  He inspected it before he used it.  He has given evidence of that.  The inspection was fairly cursory.  He said that before he started using the grinder he looked at it, he checked the connection.  On his evidence the hose came away.  He refitted the hose.  The only person able to give any evidence on the state of the equipment at that time is the plaintiff.  He does not say, “When I refitted the hose the hose was worn.  When I refitted the hose the clamp was broken or defective.  When I refitted the hose the jamec coupling was worn”.  He says none of those things.  On that basis his Honour correctly said, “Look, I cannot infer that there has been any breach by the employer for supplying defective equipment or for providing” and the specific allegation of negligence is “providing equipment capable of working loose”.  That is what the appellant now comes to this Court and says, “It worked loose ‑ ‑ ‑

HAYNE J:   It may be necessary to distinguish between two kinds of case, the case where all that is known is failure and the case where what is known is failure, causes assigned for failure but found not proved.  The case with which we are concerned is the latter case.  So, the employee injured by the flying tomahawk head, if that is the only evidence before a trial judge, a trial judge may be able to make the inference.

MR CRIDDLE:   Yes, sir.

McHUGH J:   But, if the plaintiff goes into evidence and says, “You did not check the wedges” and fails in that task, that is a further fact that may – I do not say will – have to be taken into account.

KIRBY J:   You will remember yesterday that I asked Mr Heenan whether that was the way in which you approach a so-called res ipsa loquitur case.  He said,  “Well, that was what was said in Mummery, but in fact in Anchor, since then, there has been a step by the Court which recognises that your attempt to prove the actual causes does not necessarily deny you the opportunity of using the process of logic labelled res ipsa”.

MR CRIDDLE:   That is correct, yes.

KIRBY J:   Do you agree with that submission?

MR CRIDDLE:   I agree to the extent that Anchor Products v Hedges said that if the trial judge can rule out all of the explanations and you are then left only with the accident, that is the tomahawk head.  If the judge specifically says, “I have heard that evidence.  I reject it.  I have heard that evidence.  I reject it” and the only evidence then there is the boxes falling, then the doctrine is capable of application.

KIRBY J:   Why are you then responding to Justice Hayne’s question, “Is this not such a case, that the mere fact that the judge has gone through (a), (b), (c) and (d) does not exclude (e) which is allowed to be added”?

MR CRIDDLE:   Because he has not excluded the possible causes that have been revealed by the evidence.

McHUGH J:   But is not a question of the possible causes so much, is it, it is the possible causes without negligence on the part of the employer.  Is not that the critical aspect?

MR CRIDDLE:   Yes.

McHUGH J:   On the whole of the evidence is it open to infer that this separation was the product of negligence in some unspecified way, failure to inspect, failure to do this, rather than due to some non‑negligent cause.

MR CRIDDLE:   That is the reason for the test and that is the reason why a plaintiff must establish that in the ordinary course of things, these things do not happen without negligence.

McHUGH J:   But it is in a different context.  Take a slippage case.  If it is the old occupier’s liability – it is still an occupier’s liability case – somebody slips over on some oil in Woolworths Supermarket.  The plaintiff will not get home just simply by proving that there was a slip on oil because it had been dropped by a customer or something of that nature, but in the factory setting it is a different thing.  You infer that it is as the result of an employees negligence or the employer or something.  So, you are in a better position to say, “It is more likely to be the product of negligence for which the employer is responsible”.

MR CRIDDLE:   Certainly.  It limits the scope of the potential fault but it does not identify the defendant as a person at fault unless those prerequisites are met, and that is, exclusive control, the harm must be of a kind that ordinarily speaks of negligence and that the thing must speak for itself.  Once explained, it cannot.  On the basis of the current authorities, that certainly is the position.  Whether it is in relation to an employer’s liability situation or in any other case where res ipsa is sought to be invoked.

McHUGH J:   I must say, at the moment anyway, I do not think res ipsa has got anything to do with this case but it is a form of reasoning that a similar type of reasoning may be applicable.

MR CRIDDLE:   Yes.  The Full Court took your Honour’s view and said, “This really is not a case of res ipsa loquitur, it is a case of looking at the evidence and does the evidence establish that there has been a breach of duty?” and the Full Court said, “Without there being any evidence of inspection and maintenance and whether that system was adequate or not” –the simple fact is inspection and maintenance were not raised by the plaintiff on the pleadings.

McHUGH J:   That is as particular heads of negligence but if you made a list of all the potential causes of negligence from the point of view of the employer and non-negligence, such as inherent defect or not, in the end do you not come down and say, “Well, is it  more likely than not that it was the product of some negligence, failure to inspect, supplying worn” – whatever it was, and so on.

GAUDRON J:   Particularly in a context where the trial judge says, “I cannot make a finding of inherent defect”.

MR CRIDDLE:   Because there was no evidence of inherent defect.  The plaintiff was the only person presumably on the universe that was there and saw the hose in its separated condition, put it back together again.  He does not ‑ ‑ ‑

KIRBY J:   There would be reasons for the hose to separate - even in my dim understanding of these things – that would be completely innocent of the employer’s fault.  I mean, it could be a design defect.

MR CRIDDLE:   It could be, yes.

KIRBY J:   It could be the gradual wearing away which inspection would not have revealed.

MR CRIDDLE:   Yes.

KIRBY J:   It could be a freak accident in the particular case.  It could be some failing on the part of the plaintiff himself to have checked.  There are many possibilities.  I think we have got to be very careful about imposing absolute liabilities on employers because that has very great economic consequences and is a distortion of long standing doctrine.

MR CRIDDLE:   It is, your Honour, and the Full Court identified that and found that there was no evidence of any breach – that any breach by the employer had been established in this case.  For this plaintiff to succeed not only does res ipsa have to apply but it has to apply beyond what this Court has said its reasonable application is and that is to change the burden and to require the defendant to adduce evidence that it had an adequate maintenance and inspection system ‑ ‑ ‑

GAUDRON J:   If you go back to page 249, that passage in the middle of the page, and to the actual finding that the hose was “insecurely fastened”.  It comes as a matter of inference by discarding defect, exertion of “undue pressure”, so it is insecurely fastened.  That is a finding of fact.  The trial judge goes on and says, “it is more probable than not” that it should have been securely fastened by an employee of the defendant.  It is one thing to talk about speculation of all these things that might be non‑negligent but the finding was it was “insecurely fastened”.

MR CRIDDLE:   Certainly, the intention was that these things are done up and they work.  That is clearly the intention.  It is not the intention of things that ‑ ‑ ‑

GAUDRON J:   If one comes down to a matter of ordinary knowledge one knows that when you connect hoses properly they ordinarily work and when they fail it is ordinarily because they were not properly connected.

MR CRIDDLE:   Your Honour, there could be any – as your Honour ‑ ‑ ‑

GAUDRON J:   But, one has only got to go to “ordinarily” to talk about the balance of probabilities.  I mean, if you were in a criminal case that is one thing, but what we are talking about here is an inference open on the balance of probabilities, that is all.

MR CRIDDLE:   My response to that is that the authorities are quite clear that before that inference is available there must be either expert evidence or evidence through common knowledge.  These things happen – not that they happen, certainly, they do happen and I do not take objection with your Honour on that - but they happen without proper care by the person in charge and that is the step that the trial judge never made on his findings.  He simply acknowledged the requirement for that.  He could not, as a matter of common knowledge say, “These things only happen when the person in charge is negligent”, because there was simply no evidence of that.  The evidence was that properly secured hoses do come apart.  That may then lead to another inquiry, would ‑ ‑ ‑

KIRBY J:   You say there was evidence of that?

MR CRIDDLE:   Yes.

KIRBY J:   It was your expert, was it?

MR CRIDDLE:   No, this is the plaintiff’s expert.

KIRBY J:   Mr van der Meer.

MR CRIDDLE:   This is Mr van der Meer who has gone into evidence explaining why air hoses should be used and his comments are, “Look, this equipment is used hundreds of times.  Properly secured, they do come away through a fatigue situation”.

KIRBY J:   Do you have a ready reference to where that witness said that?

MR CRIDDLE:   Yes, your Honour.

GAUDRON J:   Does he say it is undetectable by inspection?

MR CRIDDLE:   At 212 and 213, your Honour.

KIRBY J:   Is this affected by his Honour’s preference for your expert?  Was this rejected, or ‑ ‑ ‑

MR CRIDDLE:   That is the whole point of this case, there was no preference by his Honour for any expert.  The case, after the amendment, went to the issue of whether the separation occurred at the point where the hose joined the coupling or at the point where the coupling joined the grinder.  That is where the evidence went after the adjournment.  His Honour drew inferences that resulted in him accepting that it separated at the hose at the conclusion of that evidence but there was no real dispute between the experts and there was no rejection or acceptance of the evidence.  His Honour simply did not weight it up.  He, in the respondent’s submission, wrongly used the res ipsa inference to jump from the point of the accident speaking for itself to concluding negligence.

HAYNE J:   Can I perhaps come to this:  the plaintiff asserted it separated because of the defendant’s negligence on counts (a), (b), (c) or (d).  Is it open to the plaintiff then to add, if you like, “And if that is not so it separated because of a chain which I cannot identify but which is your fault”?

MR CRIDDLE:   That proposition is open on - if (a), (b), (c), (d) are all rejected and you can then establish that it is more probable than not that these things only occur if there is negligence, so, that is where the resort to res ipsa comes in, but it cannot be used where there is an explanation and it can only be used if that primary inference is available.  The respondent says it simply was not.  “This is not a res ipsa case.”  It has to be for this plaintiff to succeed because he has not adduced evidence of breach, so, he is only left with the inference of res ipsa.  The respondent says that that inference was not available to the trial judge, he made no finding that that inference was available.

My learned friend in response to, I think, the Chief Justice’s comment yesterday, “Where is the finding that the trial judge has found that it was an event that, in the ordinary course, would cause negligence?” and the only response was, “Well, he must have because he inferred negligence”.  So, we really have the plaintiff relying on an inference to draw an inference.  It is a circular thing that the appellant is relying on.

Your Honours, what the appellant is really seeking to do in this case is to allege not the hoses separating – the separation of the hose is the thing that speaks for itself.  They are going further, and they are saying “Properly maintained and properly inspected hoses should not come apart”.  Now they are doing that in the circumstances where they have not pleaded it; no evidence was led; the defendant did give evidence; the managing director of the defendant was available; the person who was in charge of the hoses prior to the plaintiff taking over that responsibility was available.  Nothing was put to either of those witnesses in relation to maintenance and inspection.  Really, the first indication that a breach in maintenance and inspection was an issue in these proceedings was when the special leave application papers were filed.

GAUDRON J:   The particulars, however, are fairly general. At page 2:

(a) failed to provide a safe and/or adequately safe system of work…..

(e) permitting the Plaintiff to operate a pneumatic grinder equipped with airline couplings which were capable of working loose

(h) allowed the Plaintiff to operate a grinder which was unsafe in all the circumstances.

They were very broad particulars.

MR CRIDDLE:   Your Honour, they were very broad.  The trial judge dealt with every one of them and found against the plaintiff on the basis that there was no evidence capable of supporting inferences that would establish breach.  I agree with your Honour that they were broad.  There was scope for the plaintiff to allege faulty maintenance and faulty inspection.  That was never done.  The trial was not fought on that basis.  That is what the plaintiff now says.  He wants to come in and say, “Properly maintained, properly inspected hoses do not fall apart”.  That was never an issue before the trial judge.

McHUGH J:   Can I test you with this proposition which is akin to, but is not identical with, res ipsa.  What do you say about this general proposition?  Defective equipment is not ordinarily supplied to an employee in the course of his employment without negligence on the part of the employer.  That is as a general proposition.

MR CRIDDLE:   Your Honour, that raises a number of questions as to whether the defect is latent or patent, and whether it is a design fault that should have been known to the defendant.

McHUGH J:   I appreciate all those things but the reason I put it to you is it may be akin to a res ipsa in a reasoning in an employment situation but it then puts an evidentiary onus on the employer to show what the cause is.

MR CRIDDLE:   So we are then getting into a change of onus, if that is the position.

McHUGH J:   No, not a change of onus, just evidentiary onus.  In other words, can one say as a matter of principle that defective equipment is not ordinarily supplied to an employee in the course of employment without negligence on the part of the employer?  You start with that presumption of fact and it is up to the employer then to lead some evidence of cause.  Not necessarily in the jury case, the jury could still hold that it was not negligent in the particular circumstances, without any evidence of cause.

MR CRIDDLE:   Your Honour, my response to that would be that it would depend on the circumstances of the case and the nature of the defect.

GLEESON CJ:   And the nature of the equipment.

MR CRIDDLE:   Yes, and the nature of the equipment.  The response in the High Court in Mummery v Irvings to the question of whether a saw throwing out a piece of wood over a distance of 15 or so metres was, we simply do not know if that is a product of negligence or not.  Without evidence as to the type of saw that was being used, and all the rest of it, just the simple fact of a saw projecting a piece of wood across a room was not enough for the High Court in that case to say the thing speaks for itself.  My response to your Honour is: look, I do not know.  In some cases it may be appropriate for that inference of fact to be drawn.  But that, again, would depend upon whether common knowledge could be used or whether expert testimony was there to say it is only - if that happens then that points to the employer’s negligence.  That is not the case here.  The expert was available.  He was never asked that question.  The proposition was never put to him.  His Honour has not dealt with it.  He has not made a finding of fact.  So, to that extent, the plaintiff in this case simply has not got to first base.

McHUGH J:   As the Chief Justice pointed out, you may have to draw a distinction between certain types of equipment.  If an employer is supplied with some highly technical piece of equipment, it may be impossible to apply that general proposition.  But what about ordinary run of the mill pieces of equipment: hoses, tomahawks, matters of that nature?

HAYNE J:   Motor cars?  The employee supplied with a motor car where it is found that through a defect in the machine itself, the accident has occurred?

MR CRIDDLE:   Your Honour, as his Honour Chief Justice Barwick said, it depends upon the common experience of mankind in relation to machinery.  His Honour Justice Kirby has indicated that he does not know anything about pressure air systems.  I do not know anything about them.  It would appear that  ‑ ‑ ‑

KIRBY J:   That was before we were handed the expert report with these lovely colour photographs which we study very closely.

MR CRIDDLE:   Your Honour, it depends on the circumstances in each case.  But what this plaintiff would ask you to do is to support a proposition that the simple happening of the event gives rise to the right to draw an inference of negligence, and the respondent says that the law is such that that can only be utilised in limited circumstances, and the ability to bypass the need for proof of breach should be conditioned by the pre‑requisites that the law currently recognises.  The plaintiff in this case has not done that.  There is no evidence that an adequate maintenance or inspection system would have prevented this accident from occurring and the Full Court has clearly recognised that requirement and unanimously recognised it, and have rejected the proposition that res ipsa can come to the aid of this plaintiff.

Your Honours, that really is the situation in this case.  The plaintiff has elected to proceed with his case on a certain course.  He had the ability to plead failure of maintenance and inspection.  Whether the fact that he was in charge of the system of maintenance and inspection led him to determine not to do that, we will never know.  But he had that ability.  He was not a stranger to the system.  He knew it.  He was responsible for it.  He was not a stranger to the circumstances of the accident.  An inference can certainly be drawn on the evidence that it was the plaintiff who connected the hoses.  The plaintiff’s counsel put to Mr Mills that it was part of his duties to connect the hoses.  The response of Mr Mills in his evidence was, “Look, I do not know whether he did it or not, but I agree it was part of his duties”, so it can be inferred from that that the person most likely to have connected this hose was the plaintiff himself.

The plaintiff is the person who had control of the instrument of his own harm prior to, during and after the incident.  He has elected not to come to the trial judge and say, “It’s a failure of maintenance and inspection”.  The absence of proof of breach means that the appellant must have resort to the res ipsa maxim, and that resort, for the plaintiff to succeed in this case, must result in a reversal of onus.

HAYNE J:   But also, as I understand your argument, effectively denies you the possibility of obtaining contribution, or in effect, a finding of contrib on the part of the plaintiff.  In fact, a finding of perhaps substantial contrib if the plaintiff connected it insufficiently and then inspected insufficiently.

MR CRIDDLE:   That was not an issue.  He know he did inspect it.  He has given that evidence that he did inspect it.  Whether that was as a result of a regime that was in place, we do not know.  That line was never explored at trial.  It was never required to be explored at trial.

GAUDRON J:   In one sense, as I am going through it, I am having a feeling that the trial actually went wrong and that, in effect, you may have been denied natural justice perhaps by a failure on your part to understand precisely how this allegation of general negligence worked.  Now would it be open if one came to the view, and I suppose Mr Heeney should listen to this, that as the evidence stood an inference was open, but the way the trial was conducted left matters unexplored that should have been or might properly have been explored and that that the proper course really is simply a near trial.

MR CRIDDLE:    Your Honour, I would not support that proposition.

GAUDRON J:   No.

HAYNE J:   In the circumstances where the parties seem to set their course this way.

MR CRIDDLE:   That certainly is the position, your Honour.  The plaintiff had the ability to put in issue “maintenance and inspection”.  The defendant ‑ ‑ ‑

GAUDRON J:   The trial judge put it in issue.

MR CRIDDLE:    Well, he did not until his decision.

GAUDRON J:   Yes.

MR CRIDDLE:    And that was that you did not plead any evidence on maintenance and inspection and therefore you are liable, and that conclusion was rejected by the Full Court on the basis that there was simply no evidence to justify that finding.

GLEESON CJ:   Bearing in mind that the plaintiff was the person who was in the organisation immediately responsible for the inspection and maintenance of the hose, and if you are correct, quite likely the person who actually connected the hose in the first place, there would have been a fairly significant tactical decision to be made by the plaintiff’s lawyers at the outset as to how they would run this case.

MR CRIDDLE:   That is correct, yes.

GLEESON CJ:   And bearing also in mind the aspect Justice Hayne has mentioned, that is, of contributory negligence.  That may explain why they, at least originally, put their eggs in the basket of an allegation that the wrong kind of hose was being used here.  Presumably part of that allegation was that that was in pursuance of a policy of thrift.

MR CRIDDLE:   That certainly came across in the evidence, your Honour.  But I would certainly support your Honour’s comments that it was open to the plaintiff, and the plaintiff really was required to make a decision on that issue.  And having decided, it is not appropriate that the doctrine come into rescue the plaintiff when it fails, and that is really what the plaintiff is seeking to do in this case.  It is seeking to have the doctrine rescue him from the absence of that issue being determined by the trial judge.

GAUDRON J:   Can I ask you, Mr Criddle, exactly at what stage of proceedings was the van der Meer report, which appears at pages 212 and 213, tendered?  I take it, it was tendered.

MR CRIDDLE:    Your Honour, it was tendered at page 176 of the transcript.

GAUDRON J:   That was when the plaintiff gave further evidence of the general negligence?

MR CRIDDLE:    Yes, it was.

GAUDRON J:   And your side then called further evidence?

MR CRIDDLE:    At the adjourned hearing, evidence was given by Dr Chew, the expert.

GAUDRON J:   After this?

MR CRIDDLE:    After this, yes.

GAUDRON J:   Because that says, right at the bottom, and it is at least there in the open, that because the:

coupling can be subject to wear means that they should periodically be tested and replaced –

so that much was at least out in the open.

MR CRIDDLE:    Sorry, your Honour, you are referring to?

GAUDRON J:   Page 213.

MR CRIDDLE:    Page 213.  Sorry, your Honour, that report was after the amendment.

GAUDRON J:   Yes, after the amendment.  And you were both given an opportunity to call further evidence.

MR CRIDDLE:    Yes.

GAUDRON J:   This evidence came in and did you attempt to deal with that?  That evidence went in saying “They should periodically be tested and replaced”.

MR CRIDDLE:    Where is your Honour referring to?

GAUDRON J:   Page 213, last paragraph, line 25.

MR CRIDDLE:   Yes.  That follows the previous paragraph which deals with wear and tear between the grinder and the coupling which is on the other side of the connection.  Mr van de Meer basically says that because it is a hand operated tool and it is used on a constant basis, the wear between the grinder and the non‑hose side of the coupling is subject to wear and, on that basis, that it should be subject to replacement.  In relation to  ‑ ‑ ‑

GAUDRON J:   But he is talking about the whole coupling.  The coupling has two ends to it, has it not?

MR CRIDDLE:    It is, but he specifically  ‑ ‑ ‑

GAUDRON J:   The finding is, it came detached at one end, the end nearest ‑ ‑ ‑

MR CRIDDLE:    At the hose end.

GAUDRON J:   Yes, at the hose end, not the tool end.  But he is talking about the whole coupling being tested and replaced.

MR CRIDDLE:    Certainly, yes, and no doubt these things happened.

GAUDRON J:   But that much was out in the open and you had an opportunity to deal, at least, with that.

MR CRIDDLE:    Does it establish, your Honour, that inspection and maintenance would have identified the risk of this separation occurring?

HAYNE J:   Or does it identify want of a safe system of work, for example, for coupling and testing the coupling before use, was the cause of this hose coming away?

MR CRIDDLE:   No, it does not because there is no evidence that this coupling was worn.

HAYNE J:   But what is the negligence on the part of the employer that is in issue?  Are we to assign, or was the trial judge to assign, more accurately, the cause of this to wear?

MR CRIDDLE:   Yes, and we cannot find a cause and we cannot assign a fault, and that is the difficulty.  Unless the plaintiff can ignore all that and jump from the allegation of res ipsa straight through to the negligence.  The respondent says that it simply was not open in this case.

Your Honours, the respondent says the law is adequate and it should remain as it is in the protections that the invocation of the principle requires.  The law does not need to be changed from the respondent’s point of view.  It certainly does for this appellant to succeed in this case, and the change has to be a reversal of the onus.  The only way this respondent can be found to be liable is if it had the onus of putting before the Court the fact that it had a system of maintenance and inspection which would have prevented this accident.

KIRBY J:   What do you say to the appellant’s submission that the Court should follow the Supreme Court of Canada?

MR CRIDDLE:    Your Honours, the respondent’s view on the Supreme Court of Canada is that it correctly deals with the law and it effectively follows what this Court has done in the past.  If I could refer you to the analysis at page 582 of that decision.  The respondent has no difficulty with the court’s view of when res ipsa should apply, what constraints there should be on it and the effect of the application and that is, that there is no change in the onus of proof.  The difficulty that the respondent has is that the court appears to ignore that at 27, at page 585, of the decision, and that seems to indicate that a shifting of onus is appropriate.  But to the extent that that comment differs from the analysis of the effect of the doctrine contained in the previous four pages, which the court impliedly accepts, or does accept - it says, this is the position - it then, in one sentence, says, once:

the plaintiff has established on a balance of probabilities a prima facie case…..the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.

The respondent certainly does not agree with that proposition.  It is contrary to what the court has previously said and is inconsistent with what the court has previously said.  So to that extent the respondent submits that Canada should not be followed.  But in so far as the rest of the judgment recognises that this Court has got it right, then it should be followed.

Your Honours, Canada really says “Let’s not look at Latin phrases”, and I am quite happy that we do not look at Latin phrases.  This Court has consistently said over the last 50 years that the Latin phrases are not important; it is the process of logic that is important, and that process should not be disturbed, in my submission.   It really is a question of proof in cases of unspecified negligence.  The respondent in this case says that the applicant simply has not discharged the onus that is on it.

Your Honour, unless I can be of any further assistance, the respondent relies on its written submissions in relation to the inadequacy of the evidence to discharge the prerequisites of the operation of the maxim.

KIRBY J:   Is there any last thing you would wish to say relating to the practicalities of the consequences of the arguments which have been advanced by the appellant for the running of employer liability cases?

MR CRIDDLE:    Your Honour, the practicality is that if this appellant succeeds, it will result in a significant change in  ‑ ‑ ‑

KIRBY J:   It depends on how it is expressed, of course.

MR CRIDDLE:    But if it is the position that ‑ ‑ ‑

KIRBY J:   What if Justice McHugh’s suggestion that there would be an evidentiary onus that equipment, in at least ordinary mechanisms, are not expected to be supplied which are defective, and if they turn out to be defective, then because that is not ordinarily so, and because employers have a high duty to ensure safe place at work, safe equipment, that there is an evidentiary onus, at least, on a defendant in those circumstances to give an explanation of what happened.

MR CRIDDLE:   The difficulty with that could be how a defendant defends itself a number of years down the track.  If it is open just to say the accident speaks for itself and there are no allegations of specific negligence but it is just left for the plaintiff to say, “Look, all we need to establish is that an accident happened”, where there is foreseeable risk ‑ ‑ ‑

GLEESON CJ:   It might be complicated further if, in a particular case, the person who actually knows most about what the system was and what actually happened, was the plaintiff.

MR CRIDDLE:    Yes, and he says, “I do not remember”, or “I am not saying”.  That could result in significant difficulties for defendants, and your Honour, with workforces dispersing, evidence is lost over time.  It would result in a significant change in the way cases are established in this land and it is submitted that it is not appropriate that that should happen, certainly in this case.

KIRBY J:   Whereas at the moment, excepting cases of relatively simple incidents, a plaintiff would be very bold to go to trial without seeking to establish the true bases of the negligence of the employer by evidence.

MR CRIDDLE:    Yes, and as the current principles stand, a defendant who has knowledge to the absence of the plaintiff would be very loathe to go to trial without going before the court and providing an explanation.  That is the position we currently have.  This plaintiff has knowledge.  He has greater knowledge than the defendant and is seeking to rely on the principle.

KIRBY J:   Yes, but you cannot get out of your obligations as an employer just because a particular employee, who happens to be the plaintiff, has knowledge.

MR CRIDDLE:    Certainly not, sir.

KIRBY J:   And he has to submit himself to your questioning.

MR CRIDDLE:   He does.

KIRBY J:   But what, in a sentence, was your theory, or did you have a theory or did you say it simply was not proven, as to why this coupling came uncoupled?

MR CRIDDLE:    It simply was not proven.  There were a number of theories.  The evidence of van der Meer was that fatigue is the most likely explanation.  The tool is used hundreds of times.  It can come away if it is properly fastened in a fatigue situation.  Mr van der Meer gave evidence that the  ‑ ‑ ‑

GAUDRON J:   There was something about fatigue of the clamp, not of the hose, was it not?

MR CRIDDLE:   Both.  It is the frictional connection which is a product of the hose operating on the clamp.  Van der Meer talked about the “Poisson effect”, which is a physics term for the interaction between bodies under pressure.  And, again, these are things that are matters of expertise, but certainly not of common knowledge.

KIRBY J:   You were answering the question as to the theories that you advanced.

MR CRIDDLE:    Yes.  One of the reasons for van der Meer suggesting that the orientation of the work should have been changed was the possibility of the hose being jammed between the operator and the rim, which would apply force to the hose.  Now that was a specific pleaded issue of negligence, and his evidence was, it is likely in the job requirement itself that the hose would become caught between the operator’s body and the rim, which would have put pressure on the hose.  There was an implicit rejection of that by the trial judge when it was put to him: look, this is a likely possible explanation; van der Meer has said fatigue; he said the operator is pulling on the hose, and there is clear evidence of that, and that was unchallenged.  So that is another possible explanation:  the operator being careless and pulling the hose when it is jammed on an object within the factory site.  All of these were possibilities.  As his Honour correctly pointed out, there was not evidence of that.  The plaintiff did not say, “It got jammed”.  The experts said, “It is likely that it will in that orientation”.  The trial judge rejected the claim of negligence that it should have been put up on the side because that would have created other dangers.  But, your Honours, there were explanations that the respondent says were consistent with “no negligence”, and on that basis  ‑ ‑ ‑

GAUDRON J:   Which are they?

MR CRIDDLE:    The fatigue situation.

GAUDRON J:   But how can that be consistent with “no negligence”?

MR CRIDDLE:    Unless a system would detect the failure, then there is no negligence.

GAUDRON J:   Yes.  But Mr van der Meer then goes on to say, “That is why they should be regularly inspected and replaced”.

MR CRIDDLE:   Your Honour, I agree with that proposition and they should be and, no doubt, they were.  There is simply no evidence ‑ ‑ ‑

GAUDRON J:   That they were or they were not.

MR CRIDDLE:   That they were or they were not and it is a question of who bore the onus of putting that issue before the Court.

GAUDRON J:   It is not a big onus to ‑ ‑ ‑

MR CRIDDLE:   Well, it is an extremely significant onus, your Honour, and if it is the defendant’s onus to come before the Court and have ‑ ‑ ‑

GAUDRON J:   We are talking evidentiary onus only and it is wrong to put it in terms of onus.  We are simply talking evidentiary onus.  You are talking about whether an inference is available which you should rebut or whether an inference is not available and, therefore, you can ignore it.  That is all we are talking about.  We are not talking onus or shifting onus in any relevant sense as, for example, might happen to some extent under the English doctrine of res ipsa.

MR CRIDDLE:   Your Honour, my response to that is that there was no facts found or evidence given that would enable the judge to find that the system of maintenance or inspection was deficient or that it led to this breach.

GAUDRON J:   No, all that the trial judge had to infer was that it was more probable than not that the incident would not occur if it had been properly attached, properly maintained and properly inspected.  That is all that he had to infer, which seems to me not to be a difficulty in face of the finding that it was not securely attached and the finding that the employer or his agent had been responsible for the attachment.

MR CRIDDLE:   Your Honour, the Full Court expressly rejected that finding.  So, we have the position where the ‑ ‑ ‑

GAUDRON J:   Which finding?

MR CRIDDLE:   The finding that it was insecurely fastened.  Mr Justice Pidgeon and Justice Ipp both rejected that on the basis that there was no evidence to sustain it and it was in the same ‑ ‑ ‑

HAYNE J:   That depends on how you construe it, does it not?

MR CRIDDLE:   It was in the same realm of conjecture as worn parts, worn hoses, and the rest of it.

HAYNE J:   But on one view, what effectively the appellant would seek to have us say is that an injured worker can go to trial leading no more evidence than evidence of the injury and the immediate physical cause of it.

MR CRIDDLE:   Yes.

HAYNE J:   If the evidence stopped there, the plaintiff can, but need not, necessarily succeed.

MR CRIDDLE:   Your Honours, the only other comment I would like to make in finalising the matter is that the trial judge simply did not use the process of logic that my friend says he should have.  He did not weigh up the direct evidence with the circumstantial evidence to arrive at a decision on the balance of probabilities.  His decision confirms that he went from a finding that it was insecurely fastened direct to a finding of negligence and the basis of that was the absence of evidence by the defendant on the inspection and maintenance.  So, it is clear that he did not do what the appellant says that he should have done in any event, and that is weigh up all of the evidence and determine whether, on that evidence, as weighed up, he had overcome the burden  Your Honours, those are my submissions.

GLEESON CJ:   Yes, thank you, Mr Criddle.  Yes, Mr Heenan.

MR HEENAN:   May it please your Honours, my learned friend submitted to the Court that there was evidence from Mr van der Meer to the effect that properly secured hoses could come apart without negligence, and I may not be paraphrasing him correctly, but frequently did, and on being asked for a citation, referred to Mr van der Meer’s report at pages 212 to 213.  In our respectful submission, that does not bear out the allegation and when asked in oral evidence about the matter at page 130, the evidence does not appear to sustain that allegation either.  It was also submitted that the trial judge dealt with every one of the particulars of negligence and rejected them and that, consequently, some new cause, some additional ground of liability, in the phrase used by Justice Hayne, was identified to produce the eventual decision.

Well, with respect, your Honours, that is an error which, with respect, Justice Ipp in the Full Court fell into at page 309 because the trial judge did not deal with every one of the particulars of negligence.  What he dealt with at pages 242, lines 36 to 41, were the issues which were foremost at the trial, namely, the garden hose, the velocity fuse, et cetera, and it appears to have been the position that his Honour was later interpreted as dealing with every one of the particulars of negligence in the statement of claim.  But as we have already seen, the statement of claim does allege general particulars of negligence, including a failure “to provide a safe and/or adequately safe system of work” in subparagraph 6(a) on page 2.

So that issue, as to the safety of work and the adequacy of the system was, at least on the pleadings, before the court from the beginning and hence the defendant was not deprived of an opportunity to meet it nor could it be readily excused from failing to lead evidence on that issue unless that

defendant also took a tactical decision seeing that those matters were not being pursued by the plaintiff in the course of the proceedings.

The manner in which the case was dealt with was that after dealing with the issues which were foremost at the trial, there was a residuum of potential liability left.  That residual was consistent with the particulars widely drawn and certainly with the approach to particulars taken by Justice Kitto in Doonan v Beacham (1953) 87 CLR 352, and there was no element of surprise. In relation to the suggestion that the defendant was deprived of an opportunity to allege contributory negligence, it was not alleged on the pleadings in this case. Those are our submissions in reply.

GLEESON CJ:   Thank you, Mr Heenan.  We will reserve our decision in this matter and will adjourn to reconstitute.

AT 11.08 AM THE MATTER WAS ADJOURNED