Kuhl vs Zurich Financial Services Australia Ltd [2011] HCA 11 (4 May 2011)


FRENCH CJ,
GUMMOW, HEYDON, CRENNAN AND BELL JJ

 

GEOFFREY LAWRENCE KUHL APPELLANT

 

AND

 

ZURICH FINANCIAL SERVICES AUSTRALIA LTD
& ANOR RESPONDENTS

 

Kuhl vs Zurich Financial Services Australia Ltd [2011] HCA 11
4 May 2011
P31/2010

 

ORDER

 

1. Appeal allowed.

 

  1. Set aside the orders of the Court of Appeal of the Supreme Court of Western Australia made on 24 March 2010 in favour of the first respondent and in their place order that:
(a) the appeal be allowed;

 

(b) the orders made by Wisbey DCJ on 22 January 2009 in favour of the first respondent be set aside; and

 

(c) judgement be entered against the first respondent in the amount of $265,000.

 

  1. The first respondent pay the appellant's costs of the appeal and in the courts below.
On appeal from the Supreme Court of Western Australia

 

Representation

 

B L Nugawela with M A Tedeschi for the appellant (instructed by Taylor Smart)
J E Maconachie QC with J R Criddle and H M O'Sullivan for the first respondent (instructed by SRB Legal)

 

J E Maconachie QC for the second respondent (instructed by Jarman McKenna)

 

Notice:This copy of the Court's Reasons for Judgement is subject to formal revision prior to publication in the Commonwealth Law Reports.

 

CATCHWORDS

 

Kuhl vs Zurich Financial Services Australia Ltd

 

Negligence – Duty of care – Appellant injured while using high-pressure vacuum hose – Injury occurred after hose passed to appellant – Supplier of hose also directed and supervised appellant – Concession by first respondent of duty of care made in court below – Whether duty of care was dependent on increased risk.

 

Negligence – Breach – Supplier of hose failed to install break box and failed to issue instructions not to pass hose while power was on – Relevance of subsequent changes to safety systems – Whether changes inordinately expensive or disadvantageous.

 

Negligence – Causation – Whether evidence as to precisely how injury occurred is necessary before causation can be found – Relevance of ordinary human experience – Relevance of agreement on quantum of damages.

 

Evidence – Implied admission or circumstantial evidence permitting adverse inference – Trial judge concluded that appellant had withheld evidence in examination-in-chief – Whether trial judge erred in failing to provide reasons for that conclusion – Whether trial judge erred in failing to provide appellant with opportunity to respond to criticism.

 

  1. FRENCH CJ AND GUMMOW J. On 19 November 1999 the appellant ("Mr Kuhl") suffered injuries in the course of his employment with Transfield Construction Pty Ltd ("Transfield"). Pursuant to s 93E of the Workers' Compensation and Rehabilitation Act1981 (WA)[1], Mr Kuhl was barred from bringing a claim in negligence against Transfield. In the District Court of Western Australia, Mr Kuhl brought an action in negligence against WOMA (Australia) Pty Ltd ("WOMA") and Hydrosweep Pty Ltd ("Hydrosweep"), amongst other parties. Both companies were deregistered after Mr Kuhl's injury but before he commenced proceedings. Pursuant to s 601AG of the Corporations Act 2001 (Cth), in the place of WOMA and Hydrosweep stand their respective insurers, the first and second respondents.
  2. Mr Kuhl was unsuccessful in his action against both insurers before the District Court (Wisbey DCJ)[2] and on appeal to the Court of Appeal of the Supreme Court of Western Australia (Martin CJ and Newnes JA; Wheeler JA dissenting)[3]. For the reasons given below, there was insufficient evidence to be satisfied on the balance of probabilities that there existed the relevant duty, breach or causation for Mr Kuhl to be successful in his action in negligence, and the appeal to this Court should be dismissed.
The facts

 

  1. Mr Kuhl commenced employment with Transfield in September 1999. He cleaned reactor grid floors at a plant owned and operated by BHP Billiton in Port Hedland, Western Australia. The reactors cooked "fines", small pieces of iron ore, which changed the composition of the fines into hot briquette iron (HBI).Mr Kuhl had the task of entering the reactors, breaking up any solidified waste material with a jack-hammer or sledge hammer and then removing the accumulated fines and other waste using a vacuum. Those who undertook these tasks were colloquially known as "reactor rats".
  2. The evidence accepted by the trial judge as to the relationship between Transfield, WOMA and Hydrosweep was as follows:
(a) By November 1999, Transfield was solely responsible for cleaning out the reactors, including using the vacuum hose. A Transfield employee, known as the "hole watcher", would look through a window into the reactor whilst it was being cleaned to monitor the "reactor rats" and test gas levels. Transfield also had supervisors on site and those supervisors would allocate the work to each employee and conduct meetings to discuss, amongst other things, safety prior to each shift.

 

(b) WOMA provided a vacuum truck, the vacuum hose and other equipment relevant to the vacuum system.WOMA would set up the equipment and supply two operators for the system; one to operate the truck, the other to check and maintain the line.WOMA would also assist in clearing any obstructions in the vacuum hose when Transfield employees were unable to do so.

 

(c) For a period in November 1999, Hydrosweep supplied a vacuum truck and two operators to WOMA for use at WOMA's direction.

 

  1. The vacuum hose used at the time of the accident was flexible, but awkward to use. It was attached to a stand pipe, or manifold, running up the side of the 128 metre tall building, which was in turn connected by hose to a vacuum truck positioned at ground level. The vertical distance from the truck to the manifold connection for the reactor in which Mr Kuhl was injured was some 32 metres. The horizontal distance from the manifold connection to that reactor's entry point is unclear, but was probably between 20-30 metres.
The accident

 

  1. At about 4.30am on 19 November 1999, whilst Mr Kuhl was vacuuming the relevant reactor, a blockage occurred in the hose.Mr Kuhl left the reactor so as to try to free the blockage. The evidence at trial was that blockages frequently occurred in the hose, sometimes up to 20 times per night. Some blockages were cleared by Transfield employees shaking the hose, hitting the blockage with a shovel or using other similar measures. Blockages that could not be fixed were then dealt with by WOMA employees or people provided for the use of WOMA, sometimes by cutting the hose and then taping it back together, or by reversing the suction. Except when the hose was cut or the suction reversed, the vacuum truck would remain on during the process of attempting to clear the blockage. This was done to assist with the unblocking and to enable one to know whether the hose had successfully been unblocked.
  2. On this occasion Mr Kuhl was unsuccessful in unblocking the hose and Mr Kelleher then attempted to do so.Mr Kelleher was an employee of Hydrosweep but was provided for the use of WOMA under WOMA's direction. On this night the vacuum truck in use was provided by WOMA, and Mr Kelleher was operating the truck and attending to blockages. After attending to the blockage, Mr Kelleher made a gesture to Mr Kuhl that was interpreted by Mr Kuhl as indicating that the hose had been unblocked. The blockage had not actually been removed but that is not relevant to the issues in this appeal.Mr Kelleher then passed the hose back to Mr Kuhl when, some indeterminate but proximate time after, Mr Kuhl's arm was sucked into the hose. Both Mr Kuhl and Mr Kelleher struggled to free Mr Kuhl's arm, and were eventually successful in doing so.
  3. An important point for this appeal, which will become evident later in these reasons, is that there was very limited evidence as to what happened.Mr Kuhl's evidence in examination-in-chief was as follows:
"What happened when the hose was handed back towards you? – My arm was caught in it, in the end, opening of it, whatever you want to call it.
If you could just describe in your own words to the court, how was the hose passed back towards you? – Passed direct –
What was the physical action? – Just passed directly back to me. I moved it a bit to the side to grab it as it was the only way to do it and the next thing my arm was gone.
Which arm? – Left, sucked in.
And how far was your left arm sucked into the hose? – Up to my shoulder."
Mr Kuhl was not cross-examined and there is no other evidence as to how his arm came to be caught in the hose.

 

  1. The only other person who could have witnessed what happened was Mr Kelleher. His evidence, in examination-in-chief, was as follows:
"Would it be fair to say that you passed it directly back towards him? – No, in front.
Okay.Did you see how his hand came to be caught in the hose? – No."
Later in cross-examination, Mr Kelleher gave the following evidence:

 

"The way you described it to his Honour a moment ago ... was [that] you passed the hose sideways to [Mr Kuhl].Was that right? – Yeah. Out in front.
Out in front, so that when you passed the hose to Mr Kuhl, the open end of the hose which had the suction at it, was facing away from Mr Kuhl? – Yeah, yeah.
And in front of him? – Yeah. That's as I remember."
  1. The trial judge accepted Mr Kelleher's evidence that the suction inlet of the hose was directed away from Mr Kuhl as the hose was passed to him. That finding was not challenged in this Court and Mr Kuhl at no stage pleaded that Mr Kelleher was negligent in the manner in which he passed the hose.
  2. A notable aspect of the evidence in this case was that the defendants called no witnesses and challenged little of the evidence given in Mr Kuhl's case. As plaintiff it was for him to lead evidence of facts sufficient to prove, directly or by inference, on the balance of probabilities that WOMA owed to him a duty of care, that the duty was breached, and that the breach of the duty caused his injuries.
The reasons of the trial judge

 

  1. In the District Court, Wisbey DCJ found that Mr Kuhl failed to establish that Hydrosweep owed him a duty of care or was negligent. That finding is not the subject of a challenge in this Court.With respect to WOMA, the trial judge found that the responsibility for training Mr Kuhl and providing him with a safe system of work was that of his employer, Transfield. The trial judge accepted that WOMA owed Mr Kuhl a duty of care, but held that the duty owed was to "provide a vacuum facility suitable for the purpose, which did not constitute risk of injury to those exercising proper care in its use"[4]. The vacuuming facility was suitable for its purpose and the possibility of injury occurring in the circumstances of the case was not reasonably foreseeable. In any event, the trial judge was not satisfied by Mr Kuhl "as to how and why his arm was drawn into the suction inlet" and, accordingly, it was not "possible to identify a relevant breach, and causally relate the incident to it".
The reasons of the Court of Appeal

 

  1. In the Court of Appeal, Newnes JA, with whom Martin CJ agreed, held that there was no evidence to find that WOMA owed Mr Kuhl a duty to provide a safe system of work, nor any evidence "that WOMA had, or purported to exercise, any authority to supervise or direct the Transfield employees in that work". The evidence only established that it was Transfield who owed the relevant duty alleged by Mr Kuhl.
  2. Newnes JA then considered whether WOMA was under a duty to instruct Mr Kelleher not to pass the hose to another worker whilst it was under suction. His Honour rejected that argument on the basis that there was no evidence of any increased risk of injury when the hose was being passed as opposed to being used to vacuum as intended. The importance of this issue for the questions of duty and breach is explained later in these reasons.
  3. Newnes JA then made the observation that the lack of evidence as to how precisely Mr Kuhl's arm became caught in the hose was a "surprising feature" of this case. That observation is then important for understanding what Newnes JA said when considering Mr Kuhl's submission that changes made to the hose post-accident indicated that there existed at the time of the accident a practicable method of reducing or eliminating the risk of injury. His Honour said[5]:
"The fact that precautions were taken after the accident must not distract attention from the enquiry whether before the accident a reasonable person would have taken those precautions.
The submission on behalf of Mr Kuhl that the risk of injury could have been avoided by simple and inexpensive modifications to the vacuum system seems to me to run into the immediate difficulty that in the absence of evidence as to precisely how the accident occurred, it is not apparent that the modifications suggested by Mr Kuhl were likely to have prevented the accident.
In any event, in the absence of evidence that passing the hose under pressure involved any increased risk of a person coming into close proximity to the suction end, I do not consider that it can be said the failure to implement those measures before the accident demonstrates a breach of duty".(emphasis added)
As will appear, we agree with what appears in this passage of his Honour's reasons, and this should be determinative of the appeal to this Court.

 

  1. Wheeler JA dissented, finding that there was a reasonably foreseeable risk of injury in the passing of the hose as a matter of common sense and that there were reasonably practicable means of designing the hose so as to eliminate or reduce that risk.More is said of her Honour's reasons later.
Duty of care

 

  1. At trial Mr Kuhl alleged that WOMA owed him a duty "to take reasonable care" for his safety "whilst he was engaged in carrying out his duties at the HBI Plant for [Transfield], not to expose [him] to any risk or injury or damage of which WOMA, its servants or agents knew or should have known and to take reasonable measures to ensure the system of work provided to and/or for [him] was safe". As noted earlier in these reasons, the trial judge formulated a narrower duty and that duty seems to have been accepted by the majority in the Court of Appeal.Wheeler JA, on the other hand, formulated three possible duties at a detailed and narrow level of specificity.
  2. Before this Court, Mr Kuhl formulated the relevant duty owed in a number of ways. First, he repeated that formulation pleaded in the District Court. Second, the relevant duty was said to be one to ensure, as far as reasonably practicable, that the hose was conveyed safely back to Mr Kuhl after it had been unblocked by employees or servants of WOMA. Third, it was said that WOMA had a duty to ensure that the powerful hose was as safe as it could reasonably be, in the event that an accident occurred.
  3. Two things must be said as to the formulation of a duty of care and its scope and content. First, there is an inherent danger in an action in negligence to look first to the cause of damage and what could have been done to prevent that damage, and from there determine the relevant duty, its scope and content[6]. In Koehler vs Cerebos (Australia) Ltd[7], McHugh, Gummow, Hayne and Heydon JJ observed that
"to begin the inquiry by focusing only upon questions of breach of duty invites error. It invites error because the assumption that is made about the content of the duty of care may fail to take fundamental aspects of the relationship between the parties into account."
Earlier in Vozza vs Tooth & Co Ltd[8], Windeyer J, when considering allegations of a failure to take reasonable care to provide suitable plant and equipment or devise and maintain a safe system of work, said:

 

"The vigorous assertion of [these phrases] may sometimes obscure for juries the essential simplicity of the issue in a common law action for negligence. It may seem that, because an accident has happened and a workman has been injured, his employer is liable for damages if it can be shown that, by some means, the accident might have been avoided. That is not so."
His Honour was, of course, stressing that any duty owed cannot be to safeguard a worker completely from all perils. His warning is, however, equally apt for considering the question of duty more generally. That is not to say that regard cannot be had to the pleaded negligence before consideration is given to the scope and content of a duty. Findings as to the formulation of the duty of care will necessarily depend upon the alleged negligence and the evidence led at trial[9].

 

  1. The approach by Wheeler JA as to the formulation of the duty is an example of the perils in first considering causation and breach to determine the relevant duty of care. Her Honour considered a number of possible actions WOMA could have taken and how effective each would have been to avoid the injury suffered by Mr Kuhl. She concluded that a break box on the hose[10] would have been the most appropriate, that it would have reduced the risk of injury and that, therefore, WOMA owed Mr Kuhl a duty to have installed a break box. Such an approach runs the risk of predetermining the outcome before considering the first important step; whether WOMA owed Mr Kuhl a duty of care to begin with and, if so, what was the scope and content of that duty. Those questions are determined by considering reasonable foreseeability and the "salient features" of the relationship between the plaintiff and defendant[11]. Even if it can be said that there was some reasonable course of conduct the defendant could have engaged in that would have avoided the injury suffered by the plaintiff, the defendant will not be liable unless there can first be established the existence of a duty of care with the relevant scope and content.
  2. The second point is that the formulated duty must neither be so broad as to be devoid of meaningful content[12], nor so narrow as to obscure the issues required for consideration[13]. With respect to the latter, Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd vs Ryan[14] said:
"A duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach."
  1. Different classes of care may give rise to different problems in determining the nature or scope of a duty of care[15]. In many cases a duty formulated as being one to take "reasonable care" may suffice for the finding of duty in that particular case.Cases that involve the duty of a solicitor to his or her client to exercise professional skill in accordance with the retainer[16], the duty of a motorist towards other users of the road[17], or the duty owed by an occupier of land to an entrant with respect to the condition of the premises[18], ordinarily involve no real controversy over the scope and content of the duty of care; these are considered at the "high level of abstraction" spoken of by Glass JA in Shirt vs Wyong Shire Council[19]. But where the relationship falls outside of a recognised relationship giving rise to a duty of care[20], or the circumstances of the case are such that the alleged negligent act or omission has little to do with that aspect of a recognised relationship which gives rise to a duty of care[21], a duty formulated at too high a level of abstraction may leave unanswered the critical questions respecting the content of the term "reasonable" and hence the content of the duty of care[22]. These are matters essential for the determination of this case, for without them the issue of breach cannot be decided. The appropriate level of specificity when formulating the scope and content of the duty will necessarily depend on the circumstances of the case.
The duty owed by WOMA to Mr Kuhl

 

  1. To the extent that Wheeler JA formulated the duty as one to provide a hose with a break box, that was too narrow a duty and risked obscuring the issues in this case. So too is the second formulation of duty proposed by Mr Kuhl.
  2. The first formulation of duty proposed by Mr Kuhl, on the other hand, is too broad in light of all the circumstances of this case.Mr Kuhl may have been exposed to many risks in undertaking his duties which had nothing to do with WOMA, such as risks from the fines being, at times, very hot or from the work being conducted in a confined space.WOMA could not have a duty to undertake all reasonable measures to avoid anyrisk to Mr Kuhl of which it knew or ought to have known. To the extent Mr Kuhl alleges WOMA owed a duty to provide and maintain a safe system of work, that was rightly rejected by the trial judge and the Court of Appeal on the ground that there was no evidence that WOMA assumed responsibility for or had control of the work done by Mr Kuhl[23].
  3. That is not to say that WOMA owed no duty to Mr Kuhl. The evidence established that WOMA provided the truck, set up the hose, was responsible for any blockages in the hose, and was to provide two personnel, one for unblocking the hose and the other for supervising the operation of the truck. The hose provided had suction operating at 1,500 pounds per square inch (some 50 times more powerful than a common household vacuum cleaner), had a diameter of four to six inches and was strong enough to suck up lumps of solidified iron ore material larger than six centimetres in diameter and, indeed, to suck up Mr Kuhl's arm with such force that it took two men to free him. The hose extended over a total distance of up to 60 metres from the truck.
  4. From this evidence it can hardly be said that it was not reasonably foreseeable, in light of the power of the hose, that a person using the hose might suffer injury if WOMA did not take reasonable care in providing appropriate equipment. It can also be inferred that WOMA had assumed some responsibility in relation to the vacuum facility above and beyond that of a non-manufacturing distributor of a product to an end user[24]; it provided operators and ongoing assistance with the running of the vacuum system.WOMA exercised a level of control over the vacuum facility both in its ability to turn the truck off and with its responsibility for clearing blockages.WOMA was not responsible for the training of Mr Kuhl nor was Mr Kuhl subject to WOMA's control. However, the supervision of the vacuum facility by WOMA's servants, and its obvious knowledge that persons like Mr Kuhl would be using the vacuum hose for the purpose for which WOMA provided the hose, indicates that it was reasonable to require WOMA to have persons like Mr Kuhl in contemplation as people who might be put at risk by WOMA's negligence in providing and operating the vacuum facility. There are also no considerations of indeterminacy or incoherence that tend against a finding of duty on the part of the WOMA.
  5. The critical question in this case concerns the scope and content of the duty owed by WOMA. The evidence outlined above supports the finding of a duty to take reasonable care to provide a hose, truck and vacuum facility that would not subject foreseeable users of the hose to an unreasonable risk of injury. This duty concerns the condition of the equipment and is no different in substance to the duty formulated by the trial judge, except for the trial judge's additional requirement that the user of the hose be "exercising proper care"[25]. Although there was some debate in this Court as to the appropriateness of that additional requirement, the requirement itself adds nothing more stringent to the duty formulated. Even a foreseeable user of the hose exercising proper care would necessarily include a worker who may, upon undertaking repetitive tasks, be inadvertent at times[26].Contrary to the submission of Mr Kuhl in his third formulation of the duty proposed to this Court, there was no requirement for a specific duty to ensure the hose was as safe as it could reasonably be in the event of an accident. There is no reason to confine the duty only to situations immediately following an accident.
  6. WOMA's responsibility for the operation of the truck and the unblocking of the hose would also place a corresponding duty on WOMA's employees and agents to take reasonable care in carrying out those functions so as to avoid causing injury to others in the vicinity who could have foresee-ably suffered injury, such as Mr Kuhl. Such a duty might encompass a situation where a person for whom WOMA is vicariously liable negligently passed the hose to a user in such a manner that the user's arm was sucked into the hose. But that was not the allegation in this case.
  7. Within the context of the duty so formulated, questions as to the safety of the hose itself, such as whether the hose should have included a break box or a handle, would then fall for determination when dealing with breach and causation. But an issue whether WOMA should have instructed users of the hose not to pass it under suction does not relate to the condition of the hose itself.
  8. The negligence asserted by Mr Kuhl of a failure by WOMA to issue prior instructions not to pass the hose under suction does not readily fall within the formulated duty to take reasonable care in unblocking the hose and operating the truck. That duty concerns the manner in which that conduct is undertaken, whereas the negligence asserted concerns an omission on the part of WOMA to take further steps to avoid injury to persons while the hose was being passed. The common law requires "some broader foundation than mere foreseeability" before a duty to act, as opposed to a duty to take reasonable care when acting, will be imposed[27]. The absence of evidence as to the contractual relationship between Transfield and WOMA is an impediment to the identification of a "special relationship" that would give rise to a duty on the part of WOMA to take steps to prevent injury to a Transfield employee when the hose was being passed. But on the assumption that the evidence was sufficient to give rise to an inference of such a special relationship, the issue remains whether the scope and content of the duty owed by WOMA to Mr Kuhl would include a duty to take additionalreasonable precautions with respect to the passing of the hose so as to avoid causing injury to those receiving the hose. It is that duty as formulated that would be required for Mr Kuhl to then be able to allege that WOMA's failure to warn was negligent.
  9. For the scope and content of the duty to include the taking of additional reasonable precautions with respect to the passing of the hose, it must be reasonably foreseeable that the act of passing the hose was itself more dangerous, or bore a higher risk of injury, for the person to whom it was being passed than the mere use of the hose. This must be so as it has already been established that WOMA owed Mr Kuhl a duty to take reasonable care to ensure that the equipment provided would not subject a person using the hose to an unreasonable risk of injury, and to take reasonable care when undertaking its activities. To extend the scope and content of the duty to include a duty to take additional reasonable precautions to avoid causing injury when the hose was being passed necessarily requires there be some additional risk in the act of passing. If it was not reasonably foreseeable that the passing of the hose exposed the receiver of the hose to any greater risk than when it was used for its intended purpose, there is no occasion for the scope of the duty to extend beyond that already owed to the user of the hose.
  10. It is in this context that the following passage in the judgement of Newnes JA is to be understood[28]:
"The risk of injury from coming into close proximity to the suction end of the hose ... was obvious and, as [the trial judge] found, Mr Kuhl was acutely aware of it. There was no evidence of a greater risk that a person's body would come into closer proximity to the suction end inherent in passing it under pressure from one worker to another than in the ordinary operation of the hose, even if it was dropped. There was, as counsel for WOMA submitted, no evidence that the hose under pressure was not inert but was prone to significant or sudden movement caused by the pressure which would have made the handing over of the hose more hazardous, nor was there evidence of any other characteristics that were likely to lead to an increased risk of injury. Had the hose had any such characteristics it would have been a simple matter for Mr Kuhl to have led evidence of them. There was no such evidence."
It is also important that the trial judge found that Mr Kelleher did not pass the hose in a negligent manner and in fact passed the hose so that the suction end was at all times pointed away from Mr Kuhl.

 

  1. Before this Court Mr Kuhl adopted the reasoning of Wheeler JA that, as a matter of common sense, the passing of the hose involved an increased risk of injury, such that evidence to that effect was not required.Wheeler JA compared the situation to the passing of an operational chainsaw, which would be an inherently risky activity[29]:
"The risks of a slip or clumsy movement are increased because there are more people involved in the movement and, of course, there are risks of 'miscommunication' about the way the manoeuvre is to be performed."
But the operation of the hose cannot relevantly be compared to that of a chainsaw. Injury could only occur from the hose if the body was to come in contact with the opening at the suction end, which pointed only in one direction and was four to six inches in diameter.

 

  1. There was no evidence at trial as to how Mr Kuhl's arm became caught in the hose. Such evidence could have established facts from which it could then be inferred that the passing of the hose was more dangerous, but without such facts no inference can be made. At its highest, the evidence was that the hose was awkward to handle, but again that alone cannot be used to then infer that passing must necessarily be riskier than vacuuming. There was also no evidence that the hose acted in any unpredictable manner when dropped, such as would increase the risk of the suction end coming into contact with someone being passed the hose.Without this evidence, no inference can be made to find that there was an increased risk in passing the hose. If there was no increased risk, then the duty owed by WOMA would not require any additional steps to be taken by WOMA respecting the passing of the hose.
  2. In any event, even if the duty did so extend, as these reasons explain, there was insufficient evidence to show that WOMA breached any duty, or that such a breach caused the injuries of Mr Kuhl. It is to these matters that we now turn.
Breach of duty

 

  1. At trial Mr Kuhl's allegations, as summarised by the trial judge[30], were that WOMA was negligent in failing to:
"(i) warn the plaintiff of the danger of body contact with the suction inlet;
(ii) ensure the plaintiff was adequately trained in the proper operation of the vacuum hose;
(iii) instruct the plaintiff in the safe operation and handling of the vacuum hose;
(iv) provide proper supervision; and
(v) provide a vacuum hose with a protective mesh guard over the suction inlet, appropriate grip handle, and capacity to terminate suction."
Paragraphs (i) to (iii) can be immediately dismissed because it was not established, for the reasons given earlier, that WOMA had a relevant duty that would encompass these measures. Paragraph (iv) did not appear to be pressed by Mr Kuhl in the courts below, nor before this Court, and in any event would similarly fall outside of the duty found to have existed.With respect to par (v), the evidence at trial established that following Mr Kuhl's injury there was a trial placement of a protective mesh guard over the suction inlet, but it was found to be impractical and impeded too greatly the ability of the vacuum to suck up the waste material. A nozzle, attached to the suction end, incorporating a grip handle was also tried but found to be too cumbersome and led to other safety concerns, mainly to do with ergonomic issues. A reasonable person in WOMA's position would not, therefore, have implemented these measures in response to the risk of injury posed.

 

  1. In this Court, Mr Kuhl relied only on two measures that WOMA should have taken prior to the accident; the failure to do so being the relevant breach of duty. First, WOMA should have issued an instruction not to pass the hose from one person to another unless the vacuum suction was turned off. Secondly, WOMA should have installed a break box onto the hose.Mr Kuhl did not allege that WOMA was vicariously liable for any negligence on the part of Mr Kelleher or Mr Atkinson, a WOMA employee on site who directed Mr Kelleher as to the work to be undertaken.
  2. At trial, counsel for Mr Kuhl led evidence as to modifications to the hose and system of vacuuming post-accident to support a finding of breach of duty. Evidence of measures adopted by a defendant after the accident may be relevant in some circumstances when determining whether it was reasonably practicable to adopt such measures.Gibbs J in Nelson vs John Lysaght (Australia) Ltd[31], with whom Stephen and Mason JJ agreed, said:
"The onus of proving that it was unreasonable not to take the precaution, of course, lay on the [plaintiff]. However, when the [defendant], which must have had full knowledge of the nature, cost and practical consequences of the new installation, gave no evidence, and by its counsel asked no questions, to suggest that it was inordinately expensive or in any other way disadvantageous, the jury was entitled to infer at the very least that the advantages of the method which the [defendant] has since adopted were not outweighed by any disadvantages."
  1. Here, the first respondent, standing in the place of WOMA, with full knowledge of the nature, cost and practical consequences of the break box, gave no evidence, nor did its counsel ask any questions, to suggest that implementing the break box would have been overly burdensome or impractical. The evidence of Mr Collins, a safety adviser with BHP Billiton but at the time of the accident a trades assistant working as a "reactor rat", was that a break box was installed on the hoses by WOMA and Transfield some seven to 10 days after the accident. The break box was installed at a join or connection in the hose, approximately 10-15 metres from the suction inlet. The nozzle, incorporating a grip handle, which had been given a trial, had also featured a break box but, as noted above, was too cumbersome and placed strain on the user's back.Mr Collins described the break box as "a really good safety device", that was made using materials and personnel already on the site.
  2. It is unclear whether instructions were given by WOMA following the accident not to pass the hose under suction.Mr Collins initially suggested such instructions were given, but when cross-examined by counsel for the first respondent, he conceded that such an instruction was not to be found in the safety procedures document he had drafted.
  3. Whether or not any such instruction was issued in relation to passing the hose under suction, finding a breach of duty requires more than proof that the measure was reasonably practicable.What was said in Nelson vs John Lysaght (Australia) Ltdis relevant to the proof of reasonable practicability. But what is required to establish a breach is that a reasonable person in the defendant's position would have foreseen that his or her conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff, before determining what a reasonable person would have done in response to the risk[32].
  4. As explained earlier in these reasons, a difficulty in Mr Kuhl's case is that he must establish that it was reasonably foreseeable that a failure to warn not to pass the hose under suction risked causing a person in his position some injury above and beyond the risks associated with such a person using the hose for its intended purpose of vacuuming up the waste in the reactor. It is foreseeable that use of the hose itself, with its high suction, could cause injury. But that does not mean that the hose must not be under suction whenever in use; if so, there would be no way in which the hose could then be used for its intended purpose. Therefore, before WOMA could be expected to take any additional measures to avoid a risk of injury when the hose is being passed, it must first be established by the plaintiff that there was a foreseeable risk of injury that was greater than when normally using the hose. That was not established in this case.
  5. Also of importance is the finding of the trial judge, adopted by Mr Kuhl in the appeal to this Court but towards another end, that the risk of injury from having a body part sucked into the hose was obvious. In assessing the standard of reasonable care, the obviousness of the risk is necessarily a factor and the more obvious the risk, the less required of the reasonable defendant to avoid or reduce that risk[33]. To this may be added the evidence at trial that blockages frequently occurred and were often dealt with by Transfield employees without the suction being turned off. From this evidence it may be inferred that it was impracticable to turn the suction off whenever a blockage occurred and the hose may need to have been passed, such that a reasonable person in the defendant's position would not issue such an instruction.With respect to none of these matters was there evidence upon which to make a finding that a failure to issue an instruction to only pass the hose while not under suction was a breach of any duty owed by WOMA to Mr Kuhl.
  6. With respect to the break box, as has been acknowledged in these reasons, it was reasonably foreseeable that use of the hose entailed a risk of injury. In these circumstances, several inferences may be made from the evidence. First, that there was a reasonably foreseeable risk that a failure to install a break box could cause injury to a person like Mr Kuhl, and that such a risk, given the power of the hose, was not insignificant or "far-fetched or fanciful"[34]. The second inference is that, the break box later having been installed and evidence not having been adduced by the first respondent to suggest this course was impractical, a reasonable person in WOMA's position would have installed the break box. However, that does not lead to the conclusion that Mr Kuhl must succeed in the appeal to this Court. The issue then becomes whether he has established, on the balance of probabilities, that the failure to install the break box caused his injuries. It is to that issue that we now turn.
Causation

 

  1. To satisfy the element of causation on the case presented for Mr Kuhl to this Court, it would be necessary to identify the action which, on the available evidence, the trial judge could conclude ought to have been taken; that action, if failure to take it is to be accounted negligent, must be such that the foreseeable risk of injury would require it to be taken, having regard to the nature of that risk and the extent of injury should the risk mature into actuality; and it would be necessary that the trial judge could conclude as a matter of evidence and inference that, more probably than not, the taking of that action (here the installation of the break box) would have prevented or minimised the injuries the plaintiff sustained[35].
  2. When dealing with the question of causation, Wheeler JA addressed the trial judge's observation of the lack of evidence by Mr Kuhl as to how his arm became caught in the hose. Her Honour said[36]:
"The only inferences open, then, appear to be that, in the process of passing a heavy, awkward hose, with very powerful suction, the appellant: misunderstood how Kelleher expected him to take it (it being too noisy for express verbal communication); or took it clumsily; or slipped; or simply misjudged how far away his arm should be in order to avoid getting caught."
With respect to the first inference, there was no evidence that there was any miscommunication between Mr Kelleher and Mr Kuhl, other than the miscommunication as to whether or not the hose was unblocked. But whether or not the hose still had a blockage, Mr Kuhl's arm could still be drawn in. The other inferences posited by her Honour are certainly possibilities, but that does not mean that Mr Kuhl has satisfied his burden of proving that the failure by WOMA to install a break box caused his injuries.

 

  1. First, the evidence at trial concerning the break box was that it was installed some 10-15 metres from the end of the hose and it would only work to stop the suction when manually operated. That being so, on the morning in question, Mr Kuhl's arm would still have been sucked into the hose. There was no evidence as to how quickly Mr Kuhl, in circumstances where his arm was caught in the hose and he was trying to pull his arm out, would have been able, if at all, to operate the break box to stop the suction. One could infer that Mr Kelleher or another worker would be able to operate the break box in these circumstances, as Mr Kelleher came to the aid of Mr Kuhl soon after noticing that his arm was stuck in the hose. But even then, there would be an interval in which Mr Kuhl's arm was stuck in the hose.
  2. That necessarily begs the question, at what point did Mr Kuhl sustain the full extent of his injury?If it was immediately upon his arm being sucked into the hose, then the break box would have done nothing to prevent the injury. If it was the time during which his arm was in the hose, there is no evidence upon which to make a finding as to how long his arm would likely have been in the hose had the break box been installed. Finally, it may have been the act of pulling his arm out of the hose that caused the injury, but again there is no evidence upon which to infer that Mr Kuhl would not have attempted to first pull his arm out, instead of trying to move 10 to 15 metres to activate the break box or waiting for someone else to do so. These unanswered questions indicate that this Court cannot now establish what it was that caused the injury to Mr Kuhl; there is no evidence from which the necessary inferences could be drawn.
  3. So much seemed to be accepted by counsel for Mr Kuhl. However, he submitted that common sense dictates that, in any event, failure to install the break box materially increased the risk of injury and that if there was medical evidence to be led as to the cause of the injury, it was upon the respondents to lead that evidence.
  4. That submission appears to be based on what was said by Dixon J in Betts vs Whittingslowe[37]:
"[B]reach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty."(emphasis added)
But, as Kiefel J noted in Roads and Traffic Authority vs Royal[38], the observation of Dixon J must be considered in light of the circumstances of that case where, as Dixon J also said[39], "the facts warrant no other inference inconsistent with liability on the part of the defendant". There is no reason, neither from the evidence adduced at trial nor as a matter of logical inference, to find that the break box would have avoided or lessened the injury suffered by Mr Kuhl. It was not the only inference that could be made.

 

  1. The absence of evidence in this regard recalls what was said by Windeyer J in Vozza vs Tooth & Co Ltd[40]:
"To speak of a jury using their experience, common sense and common knowledge means nothing unless they be given facts to which they can apply their experience, common sense and common knowledge."
It wasincumbent upon Mr Kuhl to satisfy the trial judge that the installation of the break box would have avoided or lessened his injuries.Without any evidence, medical or otherwise, to support such a conclusion, there could be no finding that any negligence on the part of WOMA was causative of the damage suffered by Mr Kuhl.

 

  1. With respect to the failure to issue an instruction not to pass the hose under suction, the absence of any evidence as to how Mr Kuhl's arm came to be caught in the hose is important. The "only inferences open" of which Wheeler JA spoke are not, in fact, the only inferences open on the evidence. As the first respondent submitted in this Court, it is not even clear from the evidence that it was due to the act of passing the hose that Mr Kuhl's arm became caught in it. The evidence of Mr Kelleher, accepted by the trial judge, was that he had passed the hose to Mr Kuhl, with the suction inlet directed away from Mr Kuhl, then looked away, and only later noticed that Mr Kuhl's arm was stuck in the hose.Certainly, it is possible that the hose slipped, or that Mr Kuhl took it clumsily, or that Mr Kuhl misjudged how far away his arm should be in order to avoid it getting caught, but it is also possible on the evidence that Mr Kuhl commenced using the hose as he would have had it not been passed, and in the process somehow had his arm sucked in.
  2. Mr Kuhl relied on Hamilton vs Nuroof (WA) Pty Ltd[41]for the proposition that precise evidence which indicated how his arm was sucked into the hose was not necessary. That case concerned the duty of an employer to adopt a safe system of work. The decision has been said[42] to indicate that it may be unnecessary for a plaintiff to show exactly how the injury occurred if there be a defect in the system of work and it is clear that the injury arose out of the defective system. However, in the present case, as noted above, there was no evidence that WOMA assumed responsibility for or had control of the work done by Mr Kuhl as an employee of Transfield.
  3. The remarks of Dixon CJ and Kitto J in Hamilton[43] that the exact cause of the bucket of hot bitumen spilling onto the plaintiff need not be ascertained for a finding of negligence need to be understood in that context. There was sufficient evidence in Hamilton to find that the act of passing a bucket of hot bitumen upwards and above one's head was an unsafe system of work. In those circumstances, the only inference that could be made was that it was because of the unsafe system of work that the bitumen was ultimately spilled onto the plaintiff. It was also a clear matter of common sense that lifting a bucket of hot bitumen above one's head increased the risk of injury when compared to carrying the bucket in other ways. In this case, there was no duty on WOMA to provide a safe system of work for Mr Kuhl, nor was it so obvious that passing the hose led to a greater risk of injury than mere use of the hose.
  4. Even accepting an inference that, given the short time between the passing of the hose and Mr Kuhl's arm becoming stuck in it, the act of passing had something to do with the accident, it still was necessary for there to be some evidence from which to conclude or infer that had WOMA issued a warning or an instruction not to pass the hose under suction, that instruction would have been followed. However, the evidence at trial was in such a state that one could properly infer it was likely such an instruction would not have been followed on the morning in question. The evidence of Messrs Kuhl, Kelleher, Collins, Rogosic and Rachman, all personnel familiar with the process of cleaning the reactor and using the hose, established that the hose frequently had blockages and that these blockages were frequently dealt with by the "reactor rats" or persons nearby without turning off the vacuum truck. Accordingly, it is unlikely that when dealing with the blockage in this case, without need for the hose to be physically cut or the suction reversed, that the truck would have been turned off prior to the hose being passed. There is no other evidence to suggest that any instruction to turn the truck off would have been followed. Accordingly, Mr Kuhl has not established that any breach on the part of WOMA caused his injuries.
Order

 

  1. The appeal should be dismissed with costs.
HEYDON, CRENNAN AND BELL JJ.

 

The factual background

 

  1. The BHP HBI plant in Port Hedland contains reactors used in the production of iron. Transfield Construction Pty Ltd ("Transfield") was responsible for cleaning the reactors out. The plaintiff was one of Transfield's employees. Among his tasks was the task of entering the reactors and using a powerful vacuum hose to remove waste materials. The vacuuming equipment used by Transfield for the operation of the vacuum hose was supplied and set up by WOMA (Australia) Pty Ltd ("WOMA"), which also supplied two operators. Ordinarily one of the operators operated the vacuum truck to which a hose conveyed the waste materials extracted and the other checked and maintained the hose. The power which created the vacuum enabling the waste materials to be sucked from the reactors through the hose to the truck was supplied by a suction-creating power unit mounted on the truck.WOMA was responsible for directing and supervising the operators, and for setting up the vacuum hose and clearing blockages in it.
  2. At about 4.30am on 19 November 1999, while the plaintiff was vacuuming a reactor, the hose became blocked. The plaintiff came out of the reactor and endeavoured to unblock the hose but was unable to do so.Mr Kelleher, an employee of Hydrosweep Pty Ltd ("Hydrosweep"), was nearby. That company had supplied another vacuum truck and two employees to WOMA, one of whom was Mr Kelleher. On that night this second vacuum truck was not in operation and the second employee was not present.Not only was Mr Kelleher operating the truck, he was, the trial judge found, "attending to line blockages"[44] in relation to the truck supplied by WOMA.Mr Kelleher attempted to unblock the hose. The trial judge found that Mr Kelleher passed the hose "sideways to, in front of, and with the suction inlet directed away from the plaintiff", who was standing a metre or two to Mr Kelleher's right-hand side[45]. It was not alleged that Mr Kelleher did this negligently. The plaintiff's left arm was then sucked into the hose, causing him quite severe injuries.
The plaintiff's case

 

  1. Although the plaintiff's case on duty of care was put more ambitiously, one question is whether the evidence on which the plaintiff relied supported the proposition that WOMA owed him a duty to take care to provide a hose, truck and vacuuming facility that would not subject those who might foreseeably use the hose to an unreasonable risk of injury in relation to uses to which it was reasonably foreseeable that the hose might be put. If so, the plaintiff's case was that that duty was breached in that WOMA failed to issue instructions not to pass the hose while the power was on, and in that WOMA had failed to install a break box 10 or 15 metres from the head of the hose which could be employed to break the vacuum pressure at the hose end by letting air in. The plaintiff contended that each breach caused his injuries.
The trial judge's attack on the plaintiff's evidence

 

  1. The trial judge's finding.The trial judge said[46]:
"The plaintiff was less than expansive when describing how his arm was drawn into the vacuum hose, and I formed the view that for whatever reason he was reluctant to say precisely what happened. I accept the essentially unchallenged evidence of Mr Kelleher that the suction inlet was directed away from the plaintiff as the hose was passed to him, and I am left to infer that some subsequent action by the plaintiff caused his arm to be drawn in by the suction force.
I am satisfied that the plaintiff was acutely aware of the necessity not to allow any part of the body to come into contact with the suction inlet.Not only does the plaintiff accept that, but the associated risks were obvious."
  1. What was the "less than expansive" evidence of the plaintiff which caused the trial judge to conclude that he was "reluctant"?It was the following evidence in chief:
"What happened when the hose was handed back towards you? --- My arm was caught in it, in the end, opening of it, whatever you want to call it.
If you could just describe in your own words to the court, how was the hose passed back towards you? --- Passed direct ---
What was the physical action? --- Just passed directly back to me. I moved it a bit to the side to grab it as it was the only way to do it and the next thing my arm was gone.
Which arm? --- Left, sucked in."
The plaintiff was not asked further questions in chief on that subject. He was not asked any questions in cross-examination about it either. The judge asked no questions about it.

 

  1. The significance of the trial judge's finding.The conclusion of the trial judge that the plaintiff was "reluctant to say precisely what happened" is an important one. If that conclusion were soundly arrived at, it would be a significant factor against the plaintiff's success. So, at least, the trial judge, the Court of Appeal majority and the first respondent thought. It would be significant because of the following considerations.Witnesses are supposed to answer questions put by counsel responsively:they are supposed to give a full answer, but no more. It is one thing to say that a witness was no