Schellenberg v Tunnel Holdings Pty Ltd

[1999] HCATrans 235

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P17 of 1998

B e t w e e n -

PETER SCHELLENBERG

Applicant

and

TUNNEL HOLDINGS PTY LTD t/as PUMP AND VALVE ENGINEERING

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 AUGUST 1999, AT 10.53 AM

Copyright in the High Court of Australia

MR E.M. HEENAN, QC:   May it please, your Honours, I appear with my learned friend, MR D.M. BRUNS, for the applicant.  (instructed by Yesner & Company)

MR J.R. CRIDDLE:   May it please the Court, I appear for the respondent.  (instructed by J.R. Criddle).

MR HEENAN:   Your Honours, in accordance with the recent change of practice in the Supreme Court of Western Australia where wigs are no longer worn by judges at first instance or on appeal in the civil jurisdiction, we are appearing without wigs and trust this is satisfactory to the Court.

GAUDRON J:   We are hardly in a position to complain, Mr Heenan.

MR HEENAN:   May it please, your Honour.  This is the case of the workman who was injured when using a powered pencil driller inside a metal valve which became disconnected from its pressure hose.  He recovered damages in the District Court of Western Australia against his employer, the respondent, for $364,800.  The respondent took the matter on appeal to the Full Court of the Supreme Court.  The appeal was allowed and the claim was dismissed.  We are seeking special leave from that dismissal.

GAUDRON J:   What do you say was the error made by the Full Court?

MR HEENAN:   The special leave point in error is in the papers of the application book at page 88.  We say that the special leave question is whether the use of the document res isa loquitur is precluded in a case where there is insufficient evidence to identify precisely how the accident happened or exactly what could have prevented it.

GAUDRON J:   But is it really anything more than what inferences might properly be drawn from the evidence?

MR HEENAN:   We say that what your Honour has just postulated is the correct test which should be adopted but that their Honours in the Full Court misapplied the doctrine and refused to give the circumstantial evidence its proper prominence, insisting that there be actual proof of the precise cause of the accident and it is the evidence - - -

GAUDRON J:   When you talk about a cause, you are talking about direct cause – direct and immediate cause – rather than legal cause in that context, are you not?

MR HEENAN:   Yes, your Honour.  But, there was a finding by the learned judge at first instance and affirmed on the appeal that the cause of the

accident, in the sense that your Honour has indicated, was the separation of the high‑pressure hose from the grinder, and that the disconnection came about because it was not adequately connected.  To that extent there was an identification of cause…..insist that there be evidence to show that that occurred by negligence or, alternatively, that the application of proper care would have prevented it occurring or would have detected the error.  We say that that imposes an unduly heavy burden.

In substance, our submission is that the Full Court has excluded the operation of the doctrine of res ipsa loquitur in a situation when it was most needed and that if that had happened in Mr Schellenberg’s case, it can happen to any other litigant whose success depends upon the application of the doctrine.

We say that the effect of the decision is to remove any useful application of the doctrine, whether it be regarded, as in Australia, as a rule of long acceptance or whether simply as an application for the rules of circumstantial evidence, which is the approach recently preferred in the Supreme Court of Canada in the decision of Fontaine v Insurance Corporation of British Columbia (1997) 156 DLR (4th) 181. A copy of that is in our papers, your Honours. Accompanying that decision is a note ‑ ‑ ‑

GAUDRON J:   Mr Heenan, we think it might be appropriate at this point to hear from your opponent.

MR HEENAN:   May it please your Honours.

MR CRIDDLE:   May it please your Honours.

GAUDRON J:   Yes, thank you, Mr Criddle.

MR CRIDDLE:   It is submitted that this case is not an appropriate case for special leave to be granted as the respondent certainly agrees with your Honour’s observation that it is a matter of the appropriate inferences to be drawn from ‑ ‑ ‑

GAUDRON J:   Yes, but is there not a question whether one is talking about inference as to the legal cause, or inference as to the physical cause?

MR CRIDDLE:   Yes, your Honour.

GAUDRON J:   And the Full Court concentrated on the physical cause rather than the legal cause, did it not?

MR CRIDDLE:   The reason for that concentration was that the Full Court found the prerequisites to the application of the doctrine were not made out by the plaintiff in the case.

GAUDRON J:   But does the doctrine apply in any event?  Is it not just a question of inferences to be drawn from the facts as proved?

MR CRIDDLE:   That is correct, your Honour, yes.

KIRBY J:   Is that what the Supreme Court of Canada has recently said?  Are you familiar with that case?

MR CRIDDLE:   Yes, it is, your Honour.

KIRBY J:   Is not the fact that the Supreme Court of Canada has passed upon this recently, and that this case throws up the same issue and that on your submission, itself, at least two of the judges of the Full Court – perhaps not Justice Ipp – approached the matter incorrectly.  Are they not reasons enough for this Court to look at this question?  It is something that comes up in trials all the time, one would think.

MR CRIDDLE:   It is submitted by the respondent that it is not an appropriate vehicle as prerequisites of the operation of the maxim were unanimously held not to apply by the three judges and they agreed that the thing, itself, was not in the exclusive control of the defendant.  That is the first issue.  It was unanimously held that the plaintiff had access to the equipment both prior to and after the event.

GAUDRON J:   Let that be assumed, was it not open to the trial judge to conclude that properly attached and properly maintained hoses and fixtures, more probably than not, do not come apart?

MR CRIDDLE:   With respect, your Honour, no, it was not open to the trial judge to find that.

GAUDRON J:   Why not?

MR CRIDDLE:   There was simply no basis for a finding of that nature.  There was no evidence of the maintenance or any defect in the maintenance.

GAUDRON J:   No, but there was evidence that compressed air hoses, with the particular attachments, can withstand pressure if the attachments are properly affixed to hoses, the ends of which have not been expanded.

HAYNE J:   The District Court judge said at application book 17 line 36:

The only definite fact established on the evidence is that the air hose became detached when it should not have.

MR CRIDDLE:   Yes, your Honour; it is the last part of that that the respondent says is inappropriate, the use of the words “should not have:.  The evidence of the plaintiff’s expert confirmed that these hoses do come apart when normally attached.  That point was dealt with by the Full Court.  It is not a case where the circumstances of the accident speak of negligence.  In the respondent’s submission ‑ ‑ ‑

GAUDRON J:   Your submission is that there was at all times an inherent risk of this hose coming apart.  I would have thought that called forth a duty on the employer to take whatever steps were reasonably available to ensure that it did not.  If there was such an inherent risk the duty seems to me to have been higher on your client than otherwise.

MR CRIDDLE:   Certainly there is a duty.  It would be a reversal of the High Court’s previous pronouncements, which…..the last significant pronouncement was the case of Fredrichberg.  It would be to reverse the High Court’s position in that case to hold that a presumption is raised by the application of the doctrine of res ipsa, and that would be effectively following the English decisions which have previously been rejected by the High Court.  It is only if a presumption is raised that the plaintiff could have succeeded at first instance.  The Full Court had said that it was an inappropriate case for that presumption.  I would submit that the case of Mummery v Irvings, where the question was asked, “Do pieces of wood fly out from saws if people responsible for the care in management use proper control?”, the answer of the High Court in that case is, “We simply do not know?”.  With respect, I would submit that that is the appropriate answer in this case.  Not enough is known about the operation of the air hoses for the court, as a matter of commonsense, to say that properly maintained hoses do not come apart except with negligence.  The expert evidence was that they do come apart.  There was no suggestion in the expert evidence that maintenance or inspection would prevent that from happening.

HAYNE J:   Does the trial judge refer to this expert evidence in the course of his findings?

MR CRIDDLE:   The trial judge certainly does.  He deals with specific allegations of negligence that are made, and deals with the expert’s evidence on the specific allegations.

HAYNE J:   But does he at any point deal with the contention I understand you to be making, which is that the experts say that these things can come apart without negligence.

MR CRIDDLE:   Yes, he does, your Honour.

KIRBY J:   Application book 7, I think, line 20.

MR CRIDDLE:   Application book 55, lines 40, and over to to 56.  He confirms that there are forces which lead to hoses coming apart.  What the Full Court found is that that explanation did not necessarily speak of negligence.  The trial judge accordingly erred in jumping to the speculative conclusion that that was the case. 

GAUDRON J:   I do not know that if you have regard to about the middle of page 56 that that evidence really helps you.  The reason why they come about are:

The forces of expansion –

the forces of the pressure pushing on the tool, the forces of the operator pulling on the hose.

All of which, one would have thought, would require the employer either to give instruction in the use of the tool to take measures to limit the pressure or to inspect to see that there had not been expansion of the hose.

HAYNE J:   And in the light of what the expert said at line 2 on 56, namely that connections of the kind with which we are concerned in this case, “suffer from a very high fatigue failure rate”, does not seem to me to help your case much.

MR CRIDDLE:   Your Honour, it does in that it was open to the plaintiff to adduce evidence that proper maintenance and inspection could have prevented it.  The plaintiff was the foreman employed by the defendant who was in charge of the hoses.  He inspected this particular hose on the day prior to it coming apart.  He did not notice anything wrong with it, but it was his job to put in place an appropriate maintenance and inspection schedule.  He does not complain about that. 

GAUDRON J:   That does not relieve his employer of liability, does it?

MR CRIDDLE:   It is only if there is there is an onus cast upon the employer - - -

GAUDRON J:   Can the employer delegate a duty of care?

MR CRIDDLE:   No, your Honour, the employer cannot delegate the duty, but it is only if there is a change of the burden, and the burden is cast upon the defendant to prove no negligence that the point can succeed.  That is the issue that is being dealt with by the Full Court.

KIRBY J:   That is one way to put it.  The other way, as Justice Hayne has pointed out, that there was expert evidence of a very high fatigue failure rate, and that if that is so, and if it is not dissimilar to a hose connection on an ordinary tap at home, at least arguably it would be open to the primary judge to infer from all of that that in such a circumstance an employer would have to use the exercise the ordinary relatively high standard of care in respect of employees who might be injured by the outcome of very high fatigue failure rate.  If the proper approach is, as apparently the Supreme Court of Canada has said, that you do not use these Latin phrases but you just draw inferences from evidence, then it may be that this is a matter that this Court should look at and pass upon for the help it will give to many trials where there is no direct evidence, but simply inferences.

MR CRIDDLE:   The difference in this matter is that direct evidence was available but was deliberately not led by the plaintiff, so the plaintiff is really adopting a last resort approach by going to the maxim and relying on the maxim.  It is not a case where the information was exclusively in the possession of the defendant, its a case for the plaintiff ‑ ‑ ‑

KIRBY J:   But it does not matter who gives the evidence, or in whose camp that witness is, if it is before the primary judge before judgment is given then that is enough.  If there is that evidence on page 56 to which Justice Hayne has pointed, then it may be that that was enough to sustain the conclusion the judge used.  He used Latin formulae and so on, but that is not important.  The question is whether there was evidence before him.  His reasoning is not the crux.

MR CRIDDLE:   There was evidence of the propensity of these things to come apart.  There was no evidence that maintenance or inspection would have prevented it.  That is an essential ingredient of the plaintiff’s case.  The plaintiff must establish that to succeed, and the High Court confirmed that in the absence of any evidence that inference, the final inference of negligence, could not be drawn by the trial judge.

KIRBY J:   Mr Heenan has whetted our appetite – at least mine – with this article by McInnes on the death of res ipsa loquitur in Canada, and I can hardly wait to have a look at how it perished, and whether it still lives in Australia.

MR CRIDDLE:   My submission is from the plaintiff’s point of view, its death certainly would not aid the plaintiff.  Unless a presumption of negligence can flow from the operation of the maxim, the plaintiff must fail because there was simply no evidence on that relevant aspect of the case.  So, it is only if the maxim operates that the plaintiff can succeed in his appeal, and to that extent, it is not an appropriate vehicle to revisit res ipsa loquitur.

GAUDRON J:   They are your submissions, Mr Criddle?

MR CRIDDLE:   They are my submissions, your Honours. 

GAUDRON J:   Yes, thank you, Mr Criddle.  Mr Heenan, we do not need to hear you in reply.  There will be a grant of special leave in this matter.  Approximately how long will the appeal take?  It would not take more than half a day, would it?

MR HEENAN:   I would not expect it to, your Honours.

GAUDRON J:   And it could, conveniently, I suppose, be dealt with in October if there is room in the list?

MR HEENAN:   Yes, your Honours.  May it please the Court.

GAUDRON J:   Yes, thank you.

AT 11.14 AM THE MATTER WAS CONCLUDED