SNF (Australia) Pty Ltd v Jones
[2008] WASCA 121
•10 JUNE 2008
SNF (AUSTRALIA) PTY LTD -v- JONES [2008] WASCA 121
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 121 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:156/2007 | 2 MAY 2008 | |
| Coram: | McLURE JA PULLIN JA NEWNES AJA | 10/06/08 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Crossappeal allowed | ||
| B | |||
| PDF Version |
| Parties: | SNF (AUSTRALIA) PTY LTD BRADLEY IVAN EDWARD JONES |
Catchwords: | Tort Negligence Foreseeability Design defect in used pressure tanker Whether tanker owner owed a duty of care to person injured as a result of design defect Defect discoverable on expert inspection Whether duty delegated Adequacy of findings and reasons Whether appealable error in the award of general damages |
Legislation: | Nil |
Case References: | Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Clark v Kramer [1986] WAR 54 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 Garrett v Nicholson (1999) 21 WAR 226 Hill v Van Erp (1997) 188 CLR 159 Jones v Bartlett (2000) 205 CLR 166 Marshall v Lockyer [2006] WASCA 58 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 Perre v Apand Pty Ltd (1999) 198 CLR 180 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Tame v New South Wales (2002) 211 CLR 317 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SNF (AUSTRALIA) PTY LTD -v- JONES [2008] WASCA 121 CORAM : McLURE JA
- PULLIN JA
NEWNES AJA
- Appellant
AND
BRADLEY IVAN EDWARD JONES
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MULLER DCJ
Citation : JONES -v- SNF (AUSTRALIA) PTY LTD [2007] WADC 167
File No : CIV 2833 of 2000
(Page 2)
Catchwords:
Tort - Negligence - Foreseeability - Design defect in used pressure tanker - Whether tanker owner owed a duty of care to person injured as a result of design defect - Defect discoverable on expert inspection - Whether duty delegated - Adequacy of findings and reasons - Whether appealable error in the award of general damages
Legislation:
Nil
Result:
Appeal dismissed
Crossappeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr G T Stubbs
Respondent : Mr C L Zelestis QC & Mr B G Bradley
Solicitors:
Appellant : Dwyer Durack
Respondent : Bradley Bayly Legal
Case(s) referred to in judgment(s):
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Clark v Kramer [1986] WAR 54
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Garrett v Nicholson (1999) 21 WAR 226
Hill v Van Erp (1997) 188 CLR 159
Jones v Bartlett (2000) 205 CLR 166
Marshall v Lockyer [2006] WASCA 58
(Page 3)
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Perre v Apand Pty Ltd (1999) 198 CLR 180
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Tame v New South Wales (2002) 211 CLR 317
Wyong Shire Council v Shirt (1980) 146 CLR 40
(Page 4)
1 McLURE JA: The appellant appeals from the judgment of Muller DCJ upholding the respondent's negligence claim against the appellant (defendant) for personal injuries caused in the course of repairing the air pressure system of a road tanker owned by the appellant (defendant).
2 At the material time, the tanker was in the custody of Wesfarmers Transport (Wesfarmers). Wesfarmers was operating the tanker to transport product owned by the appellant. On 25 November 1998 the respondent's employer, Seeley Auto Electrical Pty Ltd, sent him to rectify a fault in the starter motor to a small diesel engine forming part of the air pressure system at the rear of the tanker. After starting the engine, a pipe forming part of the air pressure system separated under force and struck the respondent on the head causing significant injuries, including a depressed skull fracture.
3 The primary issues in the appeal include whether the respondent's injury was foreseeable, whether the appellant owed to the respondent a duty of care and the sufficiency of the trial judge's fact finding and reasons.
4 The unchallenged facts are as follows. The appellant manufactured, imported into Australia and distributed a powdery product called flocculent, used to treat waste water. Around 1997 the appellant had entered into an agreement to supply flocculent to the Bulong Nickel Mine outside Kalgoorlie. As the flocculent was to be supplied in bulk, it had to be delivered by means of a pressurised tanker.
5 In June 1997 the appellant purchased a used pressure tanker from D P Bingham & Associates (Bingham), a dealer in used trucks and plant. The tanker was approximately 20 years old. After the sale, Bingham, on the appellant's instructions, arranged for repairs to the tanker's brakes and tyres and for the former owner's signage on the tanker to be replaced with the appellant's signage. The tanker remained in Bingham's yard in Welshpool because of a delay in the commencement of the supply of flocculent to the Bulong mine site.
6 In October 1997 Wesfarmers approached the appellant with an offer to hire the tanker for three to five months. The appellant agreed. It was a written term of the hire agreement that Wesfarmers undertake
to execute the required repairs and maintenance to ensure that the trailer remains in good condition up to and including the date on which it is returned to this company.
(Page 5)
- …
Furthermore, [the appellant] will accept no responsibility for debts incurred by [Wesfarmers] in the maintenance and repairs of the trailer howsoever caused by, or incidental to, its usage while in the care of [Wesfarmers].
7 By a memorandum dated 16 March 1998 the appellant informed Wesfarmers that it was looking for a contractor to collect its product (flocculent in 750 kg bags) from the wharf in Fremantle, warehouse the product in Perth, transport it to Kalgoorlie, warehouse it in Kalgoorlie and transport it to the Bulong mine site as and when required. The memorandum stated:
[T]he [appellant's] bulk tanker would be stored in Kalgoorlie and filled with 20 bags of product (15 tonne) when a delivery is required. [Wesfarmers] or designated carrier would transport the tanker to site where the driver would be required to operate the unit and pneumatically discharge the product into the 80 tonne storage silo on site, the tanker would then be returned and stored until the next delivery.
Repairs and maintenance of the trailer would be the responsibility of [the appellant], but would rely on the user to notify and arrange any maintenance required to ensure that the trailer was kept in a safe working condition.
8 In or around May 1998 the appellant and Wesfarmers agreed that Wesfarmers would provide services in accordance with the memorandum (operating agreement).
9 At all material times the appellant was represented in Western Australia by Stewart Craven, its business development manager. The appellant was based in Perth. In November 1998, before the first delivery of flocculent, Mr Craven went to the Wesfarmers depot in Kalgoorlie and inspected the tanker. He found some foreign residue inside the tanker and told the Wesfarmers manager that the tank would have to be cleaned before it was filled with flocculent. The Wesfarmers employee gave an undertaking that this would be done.
10 When Mr Craven next returned to the Wesfarmers depot he found the tanker had been cleaned and the interior of the tank was in the process of being dried. He went back the following day to supervise the filling of the tanker by Wesfarmers. When it had been filled, Mr Craven drove ahead to the Bulong mine site where he waited for the tanker to arrive. After its arrival, the driver began discharging the flocculent but only managed to empty half the tank. When an attempt was made to discharge
(Page 6)
- the balance of the tank, water was seen to flow out. Mr Craven suspected that the flocculent had become wet and had expanded.
11 The tanker was returned to the Wesfarmers depot and Mr Craven told the Wesfarmers manager to remove the remaining flocculent in the tank and to repair a number of flaws in the pipe work that the driver of the tanker had drawn to his attention.
12 Mr Craven was at the Wesfarmers depot on 25 November 1998 and saw the respondent working on the tanker. Wesfarmers' depot manager told Mr Craven that there was a problem with the air compressor's starter motor, which he expected would be repaired enabling the tanker to be used to make a delivery on that day.
13 The respondent started the compressor engine and thereafter there was a loud explosion as a pipe forming part of the air pressure system separated from the rubber joiner and struck the respondent on the head.
The air pressure system
14 The role of the air pressure system is to pump air into the tank situated on the tanker trailer with the object of effecting the pressure discharge of the powdery product from the tank.
15 The respondent adduced uncontradicted expert evidence as to the pressure piping system on the tanker. The evidence was given by Garry Affleck, a mechanical engineer with experience in the design, construction and commissioning of pressure piping systems. He provided the following explanation as to that part of the system on the side of the tanker where the accident occurred. The diesel engine to which the starter motor is attached provides power to an air compressor which in this case was a positive displacement machine which delivered air with every revolution of the compressor, regardless of the level of pressure in the system. There was discharge piping leading from the compressor to the tank. Between the compressor and the tank along the line of the piping there was, in the following sequence: (i) a rubber joiner separating the compressor and the pipe. The pipe is connected to the rubber joiner by clamps. The pipe that hit the respondent broke loose from this rubber joiner; (ii) a vent valve which, when open, lets air out of the system; (iii) a manually operated stop or discharge valve. When in the closed position, this valve prevents air from passing downstream to the tank; (iv) another rubber joiner; (v) a non-return valve (vi) a safety valve and (vii) another stop valve.
(Page 7)
16 Australian Standard 4041 sets out the minimum rules for the safe and effective design of air pressure piping systems. Save for exceptions which are not relevant here, the Standard requires that there be no stop valve between the source of the pressure (the compressor) and a safety valve.
17 As Mr Affleck explained, if the vent valve at (ii) and the stop valve at (iii) were both shut and the compressor was operating, pressure in the pipe between the compressor and stop valve could build up to danger point. If that occurred, he expected the pipe to be forced out of the end of the rubber joiner at (i) and the force of the escaping airflow would be the equivalent of an explosion.
18 Mr Affleck said that a person with his qualifications and experience would have detected the defect in the piping system.
Findings, grounds of appeal and cross-appeal
19 There being no automatic safety release valve between the air compressor and the stop valve, the trial judge concluded that the pressure piping system was inherently dangerous and the danger would have been detected by a competent and trained person. It can be inferred from the trial judge's reasons as a whole that he found that the vent and stop valves were closed and that the design defect caused the pipe to be forced out of the end of the rubber joiner under force and hit the respondent on the head causing his injuries.
20 The trial judge also found that (1) the appellant had a duty to exercise reasonable care to ensure the tanker's pressure pipeline system was in a safe condition; (2) the appellant had not delegated that duty to Wesfarmers; (3) in any event, the duty was non-delegable; and (4) the appellant breached its duty of care.
21 The appellant's grounds of appeal, excluding particulars, are that the trial judge erred:
(1) in failing to provide adequate findings and reasons to enable a proper understanding of the basis upon which there was a requisite degree of proximity between the appellant and the respondent to establish a duty of care;
(2) in failing to make any express finding that there was a requisite degree of proximity between the appellant and the respondent to establish a duty of care;
(Page 8)
- (3) in failing to provide adequate findings and reasons to enable a proper understanding of the basis upon which it can reasonably be foreseen that the acts or omissions alleged were likely to injure the respondent;
(4) in failing to make any express finding that it could reasonably be foreseen that the acts or omissions would be likely to injure the respondent;
(5) in failing to make any express finding as to the cause of the accident;
(6) in failing to provide adequate findings and reasons to enable a proper understanding of the basis upon which the accident occurred;
(7) in law and in fact in concluding that the appellant had a duty of care towards the respondent;
(8) in law and in fact in finding that the duty of care was non-delegable;
(9) in fact and in law in concluding that the appellant had not delegated its duty to Wesfarmers;
(10) in law or fact in concluding that the appellant had not discharged its duty towards the respondent.
22 The respondent was awarded damages in the sum of $1,191,854.65 of which $55,000 was for general damages. The respondent cross-appeals from the award of general damages.
23 The appellant's case at trial was that the respondent's injury was not foreseeable, that there was an insufficient degree of proximity between the appellant and the respondent to give rise to a duty of care and that if it owed a duty of care, it had been delegated to Wesfarmers.
The trial judge's findings and reasons on duty of care
24 The trial judge accepted that the tanker was in the physical custody of Wesfarmers from the end of 1997 until the date of the accident and that Wesfarmers was under a duty to maintain and repair the tanker under both the hire agreement and the operating agreement.
25 The matters relied on by the trial judge in his reasoning towards the conclusion of a duty of care are as follows. The tanker was approximately 20 years old. He was satisfied that the air pressure system was inherently dangerous and that the danger would have been detected by a competent
(Page 9)
- and trained person. The appellant had two opportunities to arrange for the tanker to be inspected by a competent person. The first opportunity was between the time of purchase and before it was hired to Wesfarmers. The second was after the hire agreement came to an end and the operating agreement was entered into.
26 The trial judge found that the appellant did not request Bingham to arrange for the pressure piping system to be inspected and checked for safety and was not satisfied that such a check was undertaken by Bingham. He further found that the appellant did not request Wesfarmers to inspect the pressure piping system for safety defects.
27 The trial judge said [71]:
What emerges from this evidence is that both the [appellant] and Wesfarmers were under a mutual obligation to have the tanker inspected by a competent person. I agree with the submission made by counsel for the [respondent] that each had a concurrent duty to exercise reasonable care to ensure that the tanker's pressure pipeline system was in a safe condition. The [appellant] did not arrange for any proper inspection either before the hire agreement with Wesfarmers or at the time of the second agreement when Wesfarmers used the tanker to carry the [appellant's] product. Neither does Wesfarmers Transport appear to have arranged any inspection. The evidence is silent on that point. Both the [appellant] and Wesfarmers Transport were under a duty to ensure the pressure pipeline system was in a safe condition and did not pose a danger to anyone who worked on or near the tanker.
28 It appears from the reasons that the appellant's submission to the trial judge was that if it owed a duty of care, its duty was delegable and had been delegated to Wesfarmers. The trial judge concluded that the appellant did not delegate the duty to inspect the tanker's pipeline system to Bingham or Wesfarmers and that, in any event, the duty was in law non-delegable. The trial judge said [72] - [74]:
Contrary to the submission made by counsel for the [appellant] I am satisfied the [appellant's] duty of care to arrange for the tanker's air pressure pipeline system to be examined and rendered safe was non-delegable. It was not open to the [appellant] to expect Wesfarmers Transport to assume that responsibility. It is true that the [appellant] was not operating the tanker itself. The evidence is clear, however, that the tanker was reserved for the [appellant's] exclusive use. It was only to be operated by Wesfarmers to carry the [appellant's] flocculent to the Bulong Nickel mine site. The use to which it was put and the agreement relating to that use … make it clear that the tanker remained under the management and control of the [appellant].
(Page 10)
- I am unable to point to any feature either in the agreement of sale with Bingham or in the two separate contracts with Wesfarmers that point to the [appellant] having delegated its duty to have the tanker's pressure system examined by a competent person to ensure that it was safe for those who used or worked on it …
Although I have found that the [appellant] did not delegate its duty to inspect the tanker's pipeline system I am also satisfied that in law such a duty is non-delegable. I have come to this conclusion because of my finding that the [appellant] purchased the tanker and retained control and management of it. At the time of the accident the tanker was being used for the [appellant's] exclusive purposes. The tanker's air pressure pipeline system was dangerously defective and the [appellant] had a duty to have the tanker inspected by a competent person to ensure that it was safe for anyone who used it …
29 The trial Judge's ultimate findings of fact on duty (and breach) are as follows:
I find that the [appellant] owed the [respondent] a duty of care and that its failure to have the tanker's air pressure system inspected constituted a breach of that duty resulting in the fault going undetected and culminating in what was a reasonably foreseeable outcome [75].
30 Apart from referring to the appellant's case on foreseeability, there is no other express reference in the reasons to reasonable foreseeability.
Adequacy of reasons - Legal principles
31 This court has on a number of occasions in recent times considered the principles relating to adequacy of reasons: Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; Marshall v Lockyer [2006] WASCA 58. It is sufficient for present purposes to note the following.
32 The function of reasons is to allow an appeal court to determine whether the decision was based on an appealable error and to provide procedural fairness to a litigant who is entitled to know why it has been successful or unsuccessful. It is sufficient if the reasoning process which led to the result is disclosed with sufficient certainty to enable the litigant to know why it is that the result ensued and to ensure that the statutory right of appeal has been secured: Garrett v Nicholson (1999) 21 WAR 226, 248. In determining the adequacy or sufficiency of the reasons, it is necessary to look at the reasons as a whole, and if necessary in the context of the evidence, to see if they give the sense of what was intended in a way that achieves their required function and purpose: Garrett v Nicholson (248).
(Page 11)
33 However reasons need not be lengthy and elaborate, nor do they require a reference to all of the evidence led in the proceedings or every submission advanced by the parties: Mount Lawley [28]. The content of the obligation to give adequate reasons is not the same for every judicial decision and there is no mechanical formula for determining what reasons are required: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443. Meagher JA in that case went on to give a useful description of the fundamental elements of a statement of reasons. He said (443) - (444):
However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered … Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached … Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear …
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.
34 Inadequacy of reasons does not necessarily amount to an appealable error; an appeal court will only intervene when the inadequacy or insufficiency in the reasons is such as to give rise to a miscarriage of justice. Further, an appealable error arising from inadequate reasons does not necessarily result in a new trial. An appeal court is entitled to consider the matter and, if it can do so, may itself decide the matter: Mount Lawley [29].
35 The appellant's particulars to grounds 1, 3, 5 and 6 are the same. The complaint is that the trial judge erred in failing to:
(a) identify with specificity the evidence he found to be irrelevant;
(b) identify with specificity what evidence he relied upon and what evidence he rejected in relation to this issue;
(c) weigh the merits and demerits of each party's evidence; and
(Page 12)
- (d) demonstrate that all the facts, evidence and pleadings had been carefully assessed.
36 As is apparent from the judgment of Meagher JA in Beale, the appellant's particulars reflect a misunderstanding of the relevant principles and go well beyond what is required for adequate reasons.
Duty of care - Legal principles
37 Reasonable foreseeability of harm of the kind suffered is a necessary, although insufficient, condition for the existence of a duty of care: Tame v New South Wales (2002) 211 CLR 317 [12]. The 'kind of injury' is a reference to the different categories of injury such as, for example, personal injury, property damage or pure economic loss. The particular injury suffered need not be foreseeable: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 3833, 402.
38 A risk is foreseeable if it is real, not far-fetched or fanciful; it can be a real risk even if it is extremely unlikely to occur: Wyong Shire Council v Shirt (1980) 146 CLR 40, 48; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 [60]. Reasonable foreseeability must be determined at the time of the alleged breach by reference to a reasonable person in the position of the defendant. What the defendant knew or ought to have known may affect what is reasonably foreseeable: Tame [29]; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317.
39 The appellant contends that, in addition to reasonable foreseeability, the respondent had to establish that there was a relationship of proximity between the respondent and the appellant. However, the High Court no longer sees proximity as the unifying criterion of duties of care: Hill v Van Erp (1997) 188 CLR 159, 176 - 177 (Dawson J), 210 (McHugh J), 237 - 239 (Gummow J); Perre v Apand Pty Ltd (1999) 198 CLR 180 [74].
40 Reasonableness is the test for the imposition of a duty of care: Tame [35] (Gleeson CJ), [109] (McHugh J), [185] (Gummow & Kirby JJ), [272] (Hayne J), [331] (Callinan J). Gleeson CJ said in Tame [9] that it is the reasonableness of a requirement that a person should have certain persons or interests in contemplation that determines the existence of a duty of care. Reasonableness is judged in the light of current community standards and defies rigorous categorisation of its elements: Tame [14], [35] (Gleeson CJ).
41 There are a variety of factors that are, or may be, relevant to whether it is reasonable to impose a duty of care and the weight to be accorded to
(Page 13)
- them may vary according to the circumstances of the case. Relevant factors include physical, temporal, relational and causal closeness, power, control, assumption of responsibility, reliance and actual or constructive knowledge of relevant matters.
42 In many cases that come before the courts, the existence of a duty of care is well-established and the nature of the duty well understood and requires little or no analysis: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 [13]. In this case, there was a real issue as to the scope of the appellant's responsibility which required legal analysis.
43 The question whether a duty of care is non-delegable only arises if a defendant owes a duty of care to the claimant and has expressly or impliedly delegated the responsibility for discharging the duty to a suitably qualified and experienced independent contractor. (A failure to take reasonable care in the selection of the contractor will constitute a breach of the usual common law duty.) A defendant will be liable for the negligence of an independent contractor if the defendant's duty of care is higher than usual and extends to ensuring the independent contractor is not negligent: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. Ordinarily, questions of non-delegability arise in cases where the existence and scope of the duty of care are well established, as in the employment relationship. In cases such as this where there is a dispute as to whether the defendant owed a duty of care at all, the answer to that question will have regard to all relevant circumstances including the involvement of contractors.
44 With the exception of grounds 5, 6, and 10, the grounds of appeal relate to the issue of duty of care. I propose to start with ground 7 which asserts the trial judge erred in concluding that the appellant owed a duty of care to the respondent. In the course of my reasons on that subject I will deal with the remaining grounds relating to duty of care.
Duty of care (Grounds 1 - 4, 7 - 9)
45 In this case the respondent suffered personal injury, the direct and immediate cause of which was being struck on the head by a pipe which separated from the pressure piping system on the tanker owned by the appellant. I will proceed on the basis, established by the evidence (as discussed hereafter), that the pipe separated as a result of a system or design defect in the pressure piping system which defect would have been identified by an expert and remedied. The defect was present when the
(Page 14)
- appellant purchased the tanker, although at no time did the appellant have actual knowledge of it.
46 The trial judge found that the design defect in the air pressure system resulted in it being inherently dangerous and that the danger was discoverable by a competent and trained person. I will refer to such a person as an expert. This finding is unchallenged. It accommodates the fact that an operator of the air pressure system on the tanker may be aware of the function and effect of all the valves without appreciating that the system was unsafe or so unsafe as to require modification. That is, the defect was not hidden but the nature and extent of the danger would only be identified by an expert.
47 The broad question may be identified as whether the appellant had a duty to take reasonable care to avoid foreseeable risks of injury to persons operating the tanker's air pressure system, or persons in the vicinity thereof, during its operation. That statement of the duty is at a high level of abstraction and is too broad in the particular circumstances of this case. That is because there are, or may be, material factual differences between design safety issues and other factors affecting safety. The central question is whether any duty owed by the appellant encompasses a duty on it, either immediately prior to the accident or prior to entering into the operating agreement, to retain an expert to inspect and report to the appellant on the design safety of the tanker's air pressure system. A duty in those terms is ex facie non-delegable. The issue of non-delegability could then only arise if the appellant had retained an expert to advise it on safety issues and that expert had been negligent in its assessment of the safety issues: Jones v Bartlett (2000) 205 CLR 166 [55]. My preliminary view is that if the relevant duty encompasses an obligation to obtain expert advice from an independent contractor, the person obtaining that advice would not ordinarily be legally liable for the negligence of the expert.
48 It is also necessary to identify the relevant question relating to reasonable foreseeability. There must be a nexus with the cause of the accident. The issue in this case is whether there was a reasonably foreseeable risk (real, not far-fetched or fanciful) of personal injury to a person operating the air pressure system from a design fault compromising the safety of the system. There is a significant overlap in the facts relevant to reasonable foreseeability and whether there was a duty to obtain expert advice as to the safety of the air pressure system.
(Page 15)
49 The relevant facts are as follows. The tanker was approximately 20 years old. It was a used tanker purchased from a dealer in used trucks. There was no evidence that the appellant received any information directly or indirectly from the previous owner(s) or the dealer as to the history or condition of the tanker's air pressure system. The appellant purchased the tanker with the intention that it be used in commercial operations as a pressure tanker. The trial judge found that the tanker's air pressure system was inherently dangerous. Indeed, any defect in the air pressure system, whether resulting from a design fault or attributable to wear and tear, has significant potential to cause serious personal injury to those in its immediate vicinity whilst it is in operation. The trial judge also found that the appellant did not instruct the dealer to arrange an expert inspection of the air pressure system. Further, the trial judge was not satisfied that such an inspection ever took place.
50 The trial judge also found that the appellant did not expressly instruct or require Wesfarmers to carry out or arrange an expert inspection and report on the safety (including the design safety) of the tanker's air pressure system. The trial judge rejected the appellant's submission that such was the effect of the express terms of the hire agreement and the operating agreement with Wesfarmers. The trial judge did not provide reasons for this conclusion. He should have done so.
51 The relevant terms are set out above. The hire agreement imposed on Wesfarmers a contractual obligation to carry out at its cost repairs and maintenance to ensure the trailer remained in good condition. In contrast, the operating agreement provided that repairs and maintenance were the appellant's responsibility but that the appellant would rely on Wesfarmers 'to notify and arrange any maintenance required to ensure that the trailer was kept in a safe working condition'. The terms in both contracts assume that the tanker and its air pressure system are in a safe condition at the commencement of the hire agreement and operating agreement respectively. Wesfarmers' contractual obligations to the appellant relate to maintenance and repair of defects identified by Wesfarmers associated with wear and tear arising from the use of the tanker. There was no express or implied contractual obligation on Wesfarmers to ensure that the tanker's air pressure system was free from design defects compromising safety. For these reasons, the trial judge's conclusion is correct. It is unnecessary in this case to determine whether the appellant owed a duty of care wide enough to encompass 'use' generated safety issues arising from, for example, deficient maintenance.
(Page 16)
52 Wesfarmers had pressure tankers in its Western Australian fleet and undertook maintenance and repairs at its Kalgoorlie depot. However, there is no evidence that Wesfarmers had the in-house expertise to identify or appreciate the significance from a safety perspective, of design defects in the air pressure system or that it had arranged for such an inspection by a qualified third party.
53 The remaining question is whether the appellant could reasonably assume or expect Wesfarmers to unilaterally and without reference to the appellant assume responsibility for conducting or arranging an expert inspection of the design safety of the tanker's air pressure system and to rectify any defects. It is the case, as the trial judge found, that Wesfarmers had a duty of care co-extensive with that found to be owed by the appellant. The real question is whether it would be reasonable for the appellant to assume or expect that Wesfarmers would comply with its common law tortious duty. The trial judge considered that question and answered it in the negative. That must be correct. Another way of formulating the proposition is to say that the appellant did not, by hiring the tanker to Wesfarmers and then engaging Wesfarmers to operate the tanker on its behalf, impliedly delegate responsibility to Wesfarmers to ensure the design safety of the tanker's air pressure system.
54 Having identified the relevant facts, I turn to the issues of foreseeability and duty. The trial judge erred in failing to identify the facts he relied on to support his conclusion that the risk of harm was reasonably foreseeable. However, there was in this case a considerable overlap between the facts supporting the trial judge's conclusion of a duty to arrange for the expert inspection of the air pressure system and his conclusion that the risk of harm was reasonably foreseeable. Moreover, the conclusion of reasonable foreseeability was the only finding reasonably open on the facts. It was a very old second hand tanker being operated commercially with an air pressure system which, if defective, had significant potential to cause serious personal injury and the appellant had no information on which it could reasonably rely to conclude that the air pressure system was free of design defects affecting safety.
55 The additional factors relied on by the trial judge to conclude that the appellant owed the respondent a non-delegable duty of care were that at the material time the appellant owned, managed and controlled the tanker which was being used exclusively to transport the appellant's product. These factors are also relevant to the anterior question of whether the appellant owed the respondent a duty of care. They, together with the facts relevant to foreseeability, support a finding that the appellant owed
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- the respondent a duty to satisfy itself as to the design safety of the tanker's air pressure system which required it to obtain, and act on, expert advice on that subject.
56 The trial judge's findings, reasoning and reasons on duty of care are, save on the element of reasonable foreseeability, sufficient to comply with the duty to give reasons. There is no merit in grounds of appeal 1 and 2 which should be dismissed.
57 The trial judge made relevant findings relating to foreseeability but did not provide adequate reasons for his conclusion on reasonable foreseeability. However, as the findings rendered the conclusion inevitable, the omission did not give rise to a miscarriage of justice or appealable error. Accordingly, I would dismiss grounds 3 and 4.
58 For the reasons given, the trial judge correctly concluded that the appellant owed a duty of care to the respondent which had not been delegated to Wesfarmers. Accordingly, I would dismiss grounds 7 and 8. As there was in fact no delegation of responsibility by the appellant to Wesfarmers to ensure the design safety of the tanker's air pressure system, it is unnecessary to determine ground 9.
Causation (grounds 5 and 6)
59 The appellant accepts, correctly in my view, that it is implicit in the trial judge's reasons that he found that the stop valve at (iii) was closed and was the immediate cause of the accident. The appellant's complaint is that the trial judge's reasons failed to deal with specific aspects of the evidence. Those aspects are said to be that:
(a) there was no direct evidence that the closure of the stop valve was the cause of the accident;
(b) no inspection was carried out of the air system by any party to establish that the stop valve could have caused the accident;
(c) Mr Affleck's evidence was that it might take '5 minutes, 10 minutes. It might be quarter of an hour … to develop enough pressure in that pipe for there to be a problem';
(d) there was no evidence that the stop valve was capable of closing off the air flow;
(e) the tanker had been successfully pressure-tested;
(f) the clamps on the rubber joiner had not been tested to ascertain if they had been properly tightened.
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60 The assertion in par (a) is wrong. There was unchallenged evidence from a Wesfarmers' employee, Mr Hinton, that the stop valve was observed by him to be closed at the time of the accident.
61 Items (b) and (d) are related. It is the case that there was no inspection of the air pressure system by any party. That is of no consequence. Both Mr Affleck and Mr Tuffin, a WorkSafe employee who investigated the accident, described the intended function of a stop or discharge valve as being to stop the flow of air when in the closed position. Mr Affleck confirmed in cross-examination that he had not examined the internal parts of the stop valve and could not say whether any part had been removed or modified. However, there was no factual foundation for such a suggestion, which was entirely speculative. Mr Affleck gave evidence that a dangerous build up of pressure between the compressor and the stop valve could result in the pipe being forced out of the end of the rubber joiner and the force of the escaping air would be the equivalent of an explosion. The uncontradicted evidence of witnesses present at the time of the accident was that the compressor motor was running, the stop valve was in the closed position and there was a loud explosion at the time of the accident (Mr Hinton at ts 150; Mr Craven at ts 202).
62 Mr Hinton's evidence concerning the tanker having been pressure-tested is as follows (ts 158):
After you'd completed the piping work that you'd done on the tanker, you had the operator Mr Campbell start the compressor up to test the pressurisation of the tanker. Is that correct?---That's correct.
Was that on the same day as the Seeley guy came out to do his job?---I'm not a hundred per cent sure.
63 Mr Campbell, the driver of the tanker was asked about these matters. His evidence was as follows (ts 181):
On the day of the accident, were you in the yard at Wesfarmers' depot?---I'd actually just driven into the yard at the time that the accident must have happened.
Had you been in the yard earlier that day?---I can't actually recall what I was doing. I know that I came back from somewhere and I was fuelling up my truck - just drove into the yard to fuel up.
Yes?---And I can't recall where I'd been or, yes, what I'd done.
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- On that day, or possibly the previous day, were you involved in pressure testing the tanker following some works that had been carried out by a Mr Hinton, and the mechanic I think was Mr Bowden?---That's right, yes. No, actually, I hadn't actually been near that tanker for quite some time.
64 Mr Hinton's unchallenged evidence that at the time of the accident he observed the stop valve to be in the closed position is not inconsistent with his uncertain evidence as to when the pressure system had been tested.
65 It is the case that Mr Tuffin did not test whether the clamps on the rubber joiner had been properly tightened. However, there is no foundation in the evidence for a suggestion that the rubber joiner was not properly clamped. In any event, the design defect (the absence of a safety relief valve between the compressor and the stop valve) would have been a major cause of the accident even if the clamp had not been properly tightened.
66 As to the time taken to develop a dangerous level of pressure in the pipe, Mr Affleck's evidence was as follows (ts 131)
A very short time. A few minutes. I can't - I could work it out but I haven't got enough information to work it out. The details of the air compressor would be needed, as with the volume of the pipe. But it's not a very long piece of pipe.
67 He was then referred to a photograph and continued (ts 132):
So it wouldn't take long. It might be five minutes, 10 minutes. It might be quarter of an hour. I can't judge it but it's certainly not a long time to develop enough pressure in that pipe for there to be a problem if that valve D was shut and valve V was shut.
68 Mr Affleck made it clear that he did not have the necessary information to make an accurate calculation. Mr Affleck identified the cause of the accident to be the absence of a safety valve between the compressor and the stop valve at (iii). That conclusion is supported by the evidence of Mr Hinton and Mr Craven referred to above.
69 The trial judge's reasons in relation to causation are inadequate. He sets out the evidence of Mr Affleck, impliedly finds that the stop valve and vent valve were closed and then states his conclusion in par 75 (set out above). However, based on the uncontradicted evidence of Mr Affleck, Mr Hinton and Mr Craven, the only reasonable inference open was that, in the absence of a safety valve between the stop valve and the compressor, the pressure in the section of pipe between those points
(Page 20)
- reached dangerous levels causing the pipe to be ejected under pressure from the rubber joiner, which pipe hit the respondent on the head. Mr Affleck's evidence also requires a finding that an inspection of the air pressure system by an expert would have identified and resulted in the rectification of the design defect.
70 Although the trial judge's reasoning and reasons are deficient, I am not satisfied the deficiency gives rise to a miscarriage of justice. The overwhelming weight of the evidence supports the trial judge's conclusion that the breach of duty caused the injuries suffered by the respondent. Even if the deficiency was sufficient to give rise to a miscarriage of justice, the error has no effect on the outcome of the appeal. Grounds 5 and 6 should be dismissed.
Ground 10
71 The appellant contends the trial judge erred in concluding that it had not discharged its duty of care towards the respondent. The particulars of the claim were that the trial judge failed to give any, or any sufficient, weight:
(a) to the evidence that the appellant requested the tanker be inspected by Tank Degassing at or about the time of purchase.
(b) to the evidence that the tanker was inspected by Tank Degassing at the appellant's request and no defects with the piping were reported to the appellant.
72 As to particular (a), Mr Craven did not give evidence that he requested Mr Bingham to arrange for the tanker to be inspected by Tank Degassing.
73 As to particular (b) the trial judge concluded [73] that he was not satisfied on the evidence that Bingham was asked by the appellant to have the tanker inspected by an expert and he was not satisfied that such an inspection ever took place. In this regard the trial judge noted [69] that no written inspection report was produced, no inspection invoice tendered and no-one from Tank Degassing was called to give evidence.
74 At the hearing of the appeal the appellant applied for leave to amend his grounds of appeal to add a ground to the effect that the trial judge erred in failing to find that the tanker's air pressure system had been inspected by an expert (Tank Degassing) prior to the accident.
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75 Mr Bingham's evidence-in-chief on the subject was as follows (ts 235):
Was one of the jobs that you attended to have to do with the pressurisation of the tanker?---It was. We were asked to see that it held pressure. Not knowing how one of these things works, we had it taken to a company called Tank Degassing in Kewdale.
Did you know this company?---A pretty well known company; part of Brambles. We had it taken around there for them to pressure test it. They couldn't find any faults as such, apart from a small leak from a hose on one side, which we had attended to, which was very, very minor.
76 The position changed somewhat in re-examination. He asked about what Mr Craven had requested of him. Mr Bingham said (ts 243):
Mr Craven seemed to have a pretty good knowledge of how one of these things worked. Tank Degassing is a company that specialises in inspecting and repairing, et cetera, on these things. Mr Craven, after it was purchased, wanted it taken around for them to have a look at in case - possibly if there was something radically wrong with it or something, they could make it right, I should imagine. But at that stage they owned it.
77 Mr Bingham's evidence does not support a finding that the appellant requested Mr Bingham to arrange for the tanker's air pressure system to be safety tested by an expert, in this case, Tank Degassing, or that Mr Bingham arranged for Tank Degassing to undertake such a safety inspection. The distinction between pressure testing and testing to disclose the design defect was pursued in cross-examination with Mr Affleck. He said (ts 130):
Ordinarily, if you asked a pressure-testing place, such as Tank Degassing - and I'm familiar with them, they're a client of mine actually. If you asked them or any other testing type business to pressure test a pressure vessel they would focus on the vessel itself and they would tend to isolate the piping from the test and test the vessel itself. That would be their focus.
78 There is a material distinction between pressure testing and testing for safety. There is no evidence to support a finding that the air pressure system was tested for safety and no proper evidential foundation for challenging the trial judge's conclusion that he was not satisfied that Bingham had the tanker inspected by Tank Degassing. I would refuse leave to amend and dismiss ground 10.
(Page 22)
Cross-appeal
79 The appellant contends that the award of general damages of $55,000 is outside the range of a sound discretionary assessment.
80 The High Court has determined that in deciding whether or not an award of general damages is manifestly excessive or inadequate, the court should not seek out and measure it against a normal standard from the decided cases: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 124. However, the court seeks to ensure the award is proportionate to the particular injuries received by the relevant plaintiff and the disability caused by those injuries in the light of current ideas of fairness and moderation which emerge from the decided cases generally: Planet Fisheries (125); Clark v Kramer [1986] WAR 54, 60.
81 The respondent was aged 35 at the time of trial. As the trial judge noted, the respondent suffered a severe fracture to the left side of his skull with a substantial wound. The respondent underwent two surgical procedures to remove bone fragments from the skull fractures. In February 1999 he underwent further surgery to install a titanium plate in his skull to correct a craniectomy defect. He developed epileptic seizures which were treated and have ceased. The trial judge found that the respondent's injuries were severe, resulting in adverse cognitive effects and personality changes. He has ongoing problems with headaches, neck pain, general tiredness, poor concentration, memory disorder, mood swings, fits of rage, poor impulse control and socially inappropriate behaviour, social withdrawal, disturbed sleep and loss of capacity for pre-accident recreation activities such as horse riding and surfing. He also has an ongoing need to take medications and antidepressants.
82 The evidence as to the nature and extent of the respondent's accident caused symptoms satisfies me that the award of damages of $55,000 does not properly reflect the respondent's non-pecuniary loss. I would increase the award of general damages to $80,000.
Conclusion
83 For these reasons, I would dismiss the appeal and uphold the cross-appeal. I would set aside the award of $55,000 for general damages and in lieu thereof award the sum of $80,000.
84 PULLIN JA: I agree with McLure JA.
85 NEWNES AJA: I agree with McLure JA.
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