HCA: importance of the rules in Browne v Dunn and Jones v Dunkel

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

In what is now somewhat uncommon, the High Court divided 3/2 in the decision allowing the appeal. Heydon, Crennan and Bell JJ (the majority) allowed the appeal in respect of duty in negligence and breach flowing from a personal injuries claim. The plaintiff’s claim was against the operators and suppliers of a vacuum truck. These companies subsequently became deregistered and their insurers were substituted as defendants. The claim against his employer was barred pursuant to s 93E of the Workers’ Compensation and Rehabilitation Act 1981 (WA)[1].

The majority further allowed the appeal on the point that the trial judged had erred in not allowing the plaintiff/appellant the opportunity to address the criticism that he had been “less than expansive” and was “reluctant to say precisely what happened” in his evidence,  with the inference that he as a party-witness was deliberately failing to tell the truth.

It is a salient reminder of the importance of the rules in Browne v Dunn and Jones v Dunkel, which are fundamental cornerstones to a fair trial and ultimately its success and any appeal.

French CJ and Gummow J dissented that there was no duty and if there was, it was not breached and causation was not made out either.

Facts:

3.

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 briquetted iron (HBI). Mr Kuhl had the task of entering the reactors, breaking up any solidified waste material with a jackhammer 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”.

4.

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 vacuuming 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.

 

5.

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.

 

 Heydon, Crennan and Bell JJ:

58.

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

59.

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

60.

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.”

61.

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.

62.

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 not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was “reluctant” to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness’s knowledge for which the question does call). To conclude that a party-witness is reluctant to say what happened is to conclude that the party-witness is deliberately failing to comply with the duty to tell the whole truth. That is a serious conclusion to reach, for the following reasons.

63.

The rule in Jones v Dunkel[47] is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness[48]. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn[49]. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue[50]. That problem did not arise here. The plaintiff’s counsel did ask the plaintiff relevant questions.

64.

The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party[51]. But the conclusion by the trial judge that the plaintiff – a party-witness – deliberately withheld evidence reflected a stronger reaction. It operated as a finding that there had been an admission. It could be inferred that the evidence was withheld, in breach of the witness’s duty to tell the whole truth in answer to the question, because the plaintiff was conscious that success in the litigation would be rendered impossible or less likely if the material withheld were revealed. Depending on the circumstances, when a party lies, or destroys or conceals evidence, or attempts to destroy or conceal evidence, or suborns witnesses, or calls testimony known to be false, or fails to comply with court orders for the production of evidence (like subpoenas or orders to answer interrogatories), or misleads persons in authority about who the party is, or flees, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. The position must be the same where there is a failure of a party-witness to comply with the duty of a witness to tell the whole truth. There is a reason why failure to call a witness or failure to ask a particular question of a witness supports the possible inference that the witness’s evidence would not have assisted the party, while failure of a party-witness to tell the whole truth may support an inference that the party suppressed evidence which would have been damaging to the party-witness. A litigant has no duty to call particular witnesses or to procure that any witnesses called by that litigant are asked particular questions. A litigant who enters the witness box, on the other hand, is under a positive duty to tell the whole truth in answer to the questions asked.

65.

The trial judge certainly appears to have perceived the plaintiff’s answers to have operated as a kind of admission. The trial judge held that WOMA had “a duty to provide a vacuum facility suitable for the purpose, which did not constitute risk of injury to those exercising proper care in its use.”[52] It follows that if the trial judge thought the plaintiff had not exercised proper care, he would fail. The trial judge inferred that “some subsequent action by the plaintiff caused his arm to be drawn in by the suction force.”[53] Now a subsequent action of that kind could be compatible or incompatible with the exercise of proper care. If one were ignorant of the dangers of the suction pipe, allowing one’s arm to get close to it might not be careless. But the trial judge pointed out that the plaintiff was acutely aware of the dangers. The trial judge plainly assumed that the plaintiff had not exercised proper care, and had deliberately or carelessly placed his arm too near the hose. In the trial judge’s apparent view, it was this which he was “reluctant” to reveal in his “less than expansive” description of what happened.

66.

It is true that at the end of his reasons for judgment the trial judge took a different stand. He said[54]:

“the plaintiff having failed to satisfy me as to how and why his arm was drawn into the suction inlet, it is not … possible to identify a relevant breach, and causally relate the incident to it.”

Whether the plaintiff has demonstrated that the trial judge was right or wrong about that will be examined below. But it is one thing to say that a plaintiff’s evidence is inadequate to make out a claim; it is another thing to say that a plaintiff’s evidence is not only inadequate, but that it has been tailored by deliberate non-responsive suppression.

67.

It is not sound judicial technique to criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party’s claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party-witness must have been given an opportunity to deal with the criticism.

68.

The lack of reasons. It is not necessary to cite authority for the existence of the first condition. It was certainly not satisfied. The trial judge gave no reasons at all for the view he formed. Nothing on the face of the evidence indicates reluctance. The trial judge’s conclusion could have been based on the demeanour of the plaintiff in answering the questions, or perhaps on the plaintiff’s demeanour at other times during his testimony, or perhaps on his demeanour during the trial while not in the witness box. In this Court the first respondent repeatedly called the trial judge’s finding “demeanour based”. But the trial judge did not refer to demeanour as a justification for his conclusion. The absence of reasoning is the more serious in the following circumstances. The plaintiff had left school at 15. He was apprenticed as a panel beater and spray painter, and worked in that and other trades in the 34 years before the accident. On one occasion during his testimony he went “blank” and could not think. For him the witness box must have been a more than usually uncomfortable place. His supposed “reluctance” may have resulted from the shock and pain of a terrifying, indeed life-changing, incident. It may have been momentary forgetfulness or inarticulateness. The problem may have been capable of resolution if counsel had paused, or returned to the subject later. To attribute the paucity of his evidence to deliberate suppression without giving reasons for this course excluding all relevant innocent possibilities was an unjustified course.

69.

The lack of warning. The second condition is more controversial. Judges are not entitled to inform themselves before taking judicial notice without giving the parties an opportunity to comment on the material referred to[55]. Judges are not entitled to criticise expert witnesses by reference to expert material not in evidence without those witnesses having an opportunity to respond[56]. Judges are entitled to take into account the demeanour of party-witnesses, not only in the witness box, but while they enter and leave it, and also while they are sitting in court before and after giving evidence; but observations by the judge of conduct outside the witness box which the representatives of the parties may not have observed, should, if they are influential in the result, be drawn to the attention of the parties so that they may have an opportunity of dealing with the problem[57]. There is thus no general duty on a judge to advise the representatives of the parties of what they can see for themselves, namely the demeanour of the party-witness in the witness box. Nor, a fortiori, is there a duty on a judge to advise the parties that the party-witness’s evidence is not adequate to make out the case of that party-witness. But there was held to be a breach of the duty of procedural fairness where a party claiming compensation for injury was held to have feigned or exaggerated her symptoms although this had not been suggested in cross-examination and the respondent disavowed that possibility[58].

70.

If, in the present case, the first respondent had submitted in final address that the plaintiff had answered his own counsel’s questions in chief about how his arm had been drawn into the vacuum hose by deliberately concealing material adverse to his case and favourable to the first respondent’s – an allegation not of inadequacy in evidence but of suppression of evidence supporting an inference that the plaintiff knew his case was bad – a breach of the rule in Browne v Dunn[59] would have taken place.

71.

In Browne v Dunn Lord Herschell LC said[60]:

“it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.” (emphasis added)

An allegation in final address that the plaintiff suppressed evidence would be in substance a suggestion that he was not speaking the truth and ought not to be believed: for he had been asked in effect to describe the whole of what he observed and remembered about what happened when the hose was handed back towards him, and the allegation would be that he had failed to speak the truth by deliberately not describing the whole of what he remembered, but suppressing unfavourable parts of it. So to allege would have been to “impeach” the plaintiff as a witness. The remedies might have included a refusal by the judge to accept or entertain the submission, and a recall of the plaintiff to the witness box to deal with the allegation.

72.

Now if it was not open to counsel for the first respondent to make the postulated allegation, how can it have been open to the trial judge, without warning, to incorporate into his reasons for judgment a finding to the same effect as the allegation?

73.

For those reasons the second condition referred to ought to have been satisfied before the trial judge made the criticism he did.

74.

The second condition was not satisfied. The plaintiff had no opportunity to deal with the criticism. Normally cross-examining counsel will prefigure and lay the ground work for any criticism a judge may feel minded to make of a witness’s evidence in chief. But here there was no cross-examination on the plaintiff’s evidence in chief about what happened in the moments before he sustained his injuries. This created a difficulty for the trial judge. The tactical decision of defence counsel not to cross-examine on that topic may well have been shrewd. When Wigmore enunciated his celebrated but controversial proposition to the effect that cross-examination was “beyond any doubt the greatest legal engine ever invented for the discovery of truth”, he immediately stated another much less controversial proposition by way of caveat: “A lawyer can do anything with a cross-examination – if he is skillful enough not to impale his own cause upon it.”[61] The truth of the second proposition lies in the fact that when a cross-examiner seeks to extract from a witness testimony which is more favourable to the cross-examiner’s client than that which the witness gave in chief, the new testimony often turns out to be adverse to the client. If evidence in chief is thought to be too feeble to serve its purpose, cross-examiners often think it best to leave it alone, for to cross-examine will do no more than strengthen it: the repeated questions may cause the witness to think harder, may cause the witness to become more determined, may trigger better recollection and may result in the witness giving the more detailed evidence which was not given in chief. But decisions by cross-examiners of that kind are gambles, and the gambles can be lost. Whether the cross-examiner lost the gamble in this case is discussed below.

75.

There was no point in the trial judge mentioning his conclusion that the plaintiff’s evidence was not frank and complete unless it played a role in his decision adverse to the plaintiff. In the absence of any challenge from the cross-examiner to the frankness and completeness of the plaintiff’s evidence, it was incumbent on the trial judge, if his conclusion that the plaintiff had not been frank and complete was to play a role in his decision adverse to the plaintiff, to make the challenge himself. Perhaps the criticism in the judgment did not occur to the trial judge until after the plaintiff had left the box, or until after the hearing had concluded and before the judge’s reserved judgment was given. It remained necessary either to recall the plaintiff or to have no regard to that aspect of the plaintiff’s evidence.

76.

The first respondent repeatedly stressed the trial judge’s finding under discussion, and sought to render it immune from appellate examination by calling it “demeanour based”. But when the above difficulties were raised with counsel for the first respondent in this Court, he raised no strong defence of what happened, and fell back on the different point that the plaintiff’s evidence was so scant and meagre as to leave, fatally, an unfilled gap. He described the plaintiff’s case as having exhibited a “failure of proof”, and he said there was “a lacuna in his evidence”, as distinct from the plaintiff being the victim of “an inference adverse to him, drawn by the trial judge or by the Court of Appeal”. It must be accepted that the trial judge put the matter in the alternative, but the primary conclusion reached is the adverse inference described above.

77.

The difficulties just discussed would justify an order for a new trial – an unpalatable prospect nearly three years after the first trial and almost 12 years after the accident. But the plaintiff does not seek a new trial. He seeks judgment. In the circumstances, although findings of the kind criticised above tend invisibly and inseverably to permeate the whole of a judge’s reasoning, the desirable course is to proceed as though the trial judge’s reasoning which has been criticised did not exist, with a view to seeing whether it was otherwise defensible.

Duty

78.

A procedural problem. The Court of Appeal majority overturned the trial judge’s conclusion that WOMA owed the plaintiff a duty of care. It did so of its own motion, in the absence of any notice of contention, and despite a concession by counsel for the first respondent that there was a duty of care. This does not seem to have been open to it, although it was open to it to reject the plaintiff’s contentions that the duty of care was broader than that found by the trial judge.

79.

The nature of the duty. It was reasonably foreseeable to WOMA that the vacuum facility it provided to Transfield, and particularly the hose, would be used by Transfield employees to clean out the reactors. It was also reasonably foreseeable that from time to time the hose would get blocked and have to be unblocked. And it was reasonably foreseeable that different workers, whether employed by Transfield, WOMA or Hydrosweep, might work on the task of unblocking the hose, and hand it back and forth while the suction-creating power unit was in operation. Thus there was a duty on WOMA to provide a hose, truck and vacuuming facility that would not subject foreseeable users of the hose (including those who might be inadvertent at times) to an unreasonable risk of injury in relation to the uses to which it was reasonably foreseeable that it might be put. On that basis WOMA’s duty of care extended to risks in relation to the passing of the hose, whether those risks arose from the way the hose was designed (for example, without a break box), or the way it was to be used (for example, without the protection of instruction to turn the power off while it was being handed back and forth between workers).

80.

In the Court of Appeal counsel for the first respondent (who was not leading counsel in this Court) was asked the following question by Martin CJ:

“If passing the vacuum under load created a foreseeable risk of injury … that could have been easily avoided by turning the truck off before you passed the equipment under load … why wouldn’t [WOMA] have owed a duty to the plaintiff to instruct Kelleher accordingly?”

He answered in the affirmative. In this Court the first respondent attempted to withdraw that concession on various grounds. It should not be allowed to do so, for the simple reason that the concession was correct.

81.

Counsel for the first respondent submitted:

“The co-existence of knowledge of a risk of harm and power to avert or to minimise that harm does not, without more, give rise to a duty of care at common law …
The mere provision of plant and equipment to someone who intends to integrate it into their enterprise, and upon whom there is a common law duty to devise, institute and maintain a safe system of work, and to provide safe plant and equipment, cannot give rise to a common law duty of care to users of the equipment within the enterprise: something more must be needed. If it were otherwise, the burden on commerce would be intolerable, and areas of responsibility would overlap such as to potentiate conflicts in systems of work, creating rather than abrogating risks of harm.
The supplier of plant and equipment may not know, and may have no means of knowing, the manner in which the plant and equipment will be integrated into its [customer’s] enterprise; or how work systems might be adapted to deal with contingencies encountered; it would lead to indeterminate liability; it would make tortious that which was otherwise lawful; it would hinder the efficient operation of commerce.”

He submitted that the contract between WOMA and Transfield was relevant; that the equipment had been used for months without incident, and that Transfield had every opportunity to inspect, analyse and systemise the equipment within its system of work.

82.

However sound these submissions may be when applied to other circumstances, they are not sound here. WOMA knew, and had the means of knowing, how the fruits of Transfield’s work in integrating the equipment within its system of work had developed, for it supplied not only equipment but also workers. However relevant the contract between WOMA and Transfield was, the Court of Appeal majority said it was never clearly explained in the evidence. Hence it has not been established that it restricted WOMA’s duty. The incident-free history of the equipment is not irrelevant, but it is not determinative. The submission amounts to the proposition that, if an employer like Transfield owes a duty to its workers to maintain a safe system of work, there can never be a possibility of others owing the workers duties of care. The existence of a duty of care depends on the circumstances of each case; in this case the circumstances were sufficient to create the duty in WOMA which was stated above, which includes the duty that was conceded in the Court of Appeal. That was because of WOMA’s special role in supplying the equipment, setting up the hose, clearing blockages and directing and supervising the two operators[62].

83.

The dependence of duty on increased risk. But, contrary to what has just been said and contrary to the terms of the concession, let it be assumed that the Court of Appeal majority was correct to find that no relevant duty of care could exist in the absence of “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.”[63] The Court of Appeal majority said[64]:

“There was … no evidence that the hose under pressure … 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.”

And it said that had the hose had any characteristics likely to lead to an increased risk of injury in these circumstances, “it would have been a simple matter for [the plaintiff] to have led evidence of them.”[65] It said there was no such evidence.

84.

The view that the passing of the hose under pressure from one worker to another did increase the risk of injury is correct for the following reasons.

85.

First, there was evidence of the characteristics of the hose. It was approximately six inches in diameter. It was “so flexible”. It was “quite hard to hang on to and use”. It was “very awkward” to handle. It was heavy. The suction, at 1500 pounds per square inch, was very powerful. It was powerful enough to suck up briquettes, rocks and iron lumps and convey them through the hose for 60 metres. It was fifty times more powerful than a normal vacuum cleaner. It was powerful enough to pick up big boulders incapable of passing through the six inch outlet. It was so powerful that when the plaintiff’s arm was sucked in, he could not pull it out, either alone or with Mr Kelleher’s help. A hose with these characteristics – in particular the fact that it was very awkward to handle – was dangerous.

86.

Secondly, in Neill v NSW Fresh Food & Ice Pty Ltd Taylor and Owen JJ said[66]:

“in many cases no more than common knowledge, or perhaps common sense, is necessary to enable one to perceive the existence of a real risk of injury and to permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid it.”

Their Honours said that Hamilton v Nuroof (WA) Pty Ltd[67] was such a case. In that case the plaintiff was injured when a bucket of bitumen, which he was lifting onto a roof, spilled over him. The trial judge said that on the evidence he was unable to find precisely how the accident occurred. Dixon CJ and Kitto J said[68]:

 

“when a vessel containing forty pounds weight of molten material is raised by hand in front of the body high enough for a handle to be seized by a man above, there must be a greatly increased risk of its spilling whether through mishandling or mistake or mischance and the prospect of serious injury if that happens must be much greater also.”

They concluded that the danger was real and evident. The present case is not dissimilar. It was reasonably foreseeable that the danger would increase if the hose were handed from one workman to another while the equipment was operating, particularly since the plaintiff had been on duty for 10 and a half hours at the time of the accident, as part of a 12 hour shift worked seven days a week, who, although he could have taken off one week in three, in fact took no weeks off, and particularly since the plaintiff was operating in conditions which were not only hot and dusty but noisy. As Wheeler JA (dissenting) said[69]:

“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.”

87.

The trial judge appeared to infer from his conclusion that the plaintiff was “reluctant” to say what happened that “some subsequent action by the plaintiff caused his arm to be drawn in by the suction force.”[70] Wheeler JA pointed out that the trial judge made no positive finding, and there was no evidence, that the plaintiff had deliberately or carelessly injured himself; hence the available inferences were that one of the following happened – that he misunderstood how Mr Kelleher expected him to take the hose, being reliant only on sign language due to the noise; that he took the hose clumsily; that he slipped; or that he misjudged how far away from the end of the hose his arm should be in order to avoid getting caught[71]. That they were the realistically available inferences is supported by the shortness of time between when Mr Kelleher passed the hose and when the plaintiff’s arm was caught. Each of those four possible inferences is compatible with the plaintiff exercising proper care. That is because they are illustrations, in the words of Windeyer J, of “some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection” which may be, and in this case – a case involving the operation of heavy, awkward, noisy machinery – are, “excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man.”[72] The first respondent in this Court contended that the line of authority to which Windeyer J referred did not apply in this case because of the trial judge’s finding that the plaintiff was saying less than he knew about how the accident happened. But for the reasons given above that finding cannot stand.

88.

The conclusion that the hose was more dangerous when being passed from one workman to another than it was when being used by one workman alone follows from the fact that a workman operating by himself can steady himself and adjust his positioning in relation to the end of the hose, heavy and awkward to handle as it was, more easily than a workman receiving the hose from another workman. To put it crudely, a workman operating by himself is in a static position and in a position to be in full control of the hose; the process of one workman handing the hose to another is dynamic, and neither is in a position to be in full control, because each must depend on the reactions, and his perception of the possible reactions, of the other.

89.

The first respondent submitted that by the time the plaintiff suffered his injury the act of passing the hose was complete and the plaintiff was in a static position, in full control of the hose; the accident happened after the hose was passed because Mr Kelleher did not see it. But both Mr Kelleher and the plaintiff were silent as to how precisely the plaintiff’s arm became caught in the hose: plainly it happened very quickly and unexpectedly. It cannot be inferred that the plaintiff had regained full and stable control of the hose after receiving it from Mr Kelleher before his arm was sucked in.

90.

Hence there was a duty of care on WOMA in relation to the passing of the hose, as the plaintiff submitted.

Breach

91.

The plaintiff submitted that it had made out two pleaded breaches of WOMA’s duty of care.

92.

The first lay in a failure to issue instructions not to pass the hose under pressure; ie, to ensure that the power was turned off before attempts were made to clear the hose by handing it back and forth between workers. Had those instructions been given, compliance with them would have precluded any risk of injury for the plaintiff on the night in question. These instructions were recommended after the accident by Mr Collins, who before the accident had had substantial experience as a safety representative and had received substantial safety training, and thereafter had safety responsibilities at the BHP HBI plant at Port Hedland. It is not clear whether the instructions were actually given after the accident. Had the instructions been given before the accident, they could not have been carried out on the night in question. Although WOMA was responsible for supplying two persons – one to operate the truck and the other to deal with blockages – on that night Mr Kelleher had to perform both roles, and he could not both be unblocking the hose and turning off the pressure 60 metres away down some flights of stairs. That circumstance in itself would have placed WOMA in breach of duty.

93.

The second breach lay in failing 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. Mr Collins thought that this was “a really good safety device … when … we had to move the hoses around, if they were under load”. This idea was implemented soon after the accident. Wheeler JA concluded that a hose reasonably fit for the intended purpose would have included the break box, and that the breach lay in not including it.

94.

Plainly the mere fact that one change was recommended after the accident and the other introduced after the accident does not support a conclusion of breach of duty. The significance of these events is only to show what could have been done, not what should have been done. Whether what was done later should have been done earlier depends, inter alia, on whether “it was inordinately expensive or in any other way disadvantageous”[73]. No evidence of inordinate expense or other disadvantage in either technique was called by the first respondent or pointed to in argument. The first respondent put no other significant argument in relation to breach of duty, as distinct from causation.

95.

It is not possible to infer from the behaviour of the workers before the accident, at a time when no instruction not to pass the hose under pressure had been given, that they would have disobeyed the instruction if it had been given. It may be inferred from the giving of the instruction that it would probably have been obeyed, unless there is evidence making that inference unavailable: there is no such evidence. Nor can it be inferred from the fact that blockages were frequent and, before the accident, were often dealt with without turning the power off that it was not practicable to turn it off after the accident.

96.

The first respondent stressed that, apart from the break box, these and other changes were not made by WOMA, but were made in response to the recommendations of an accident investigation committee chaired by Mr McGillivray, the shutdown superintendent of BHP Billiton HBI. But the authorship of the changes is immaterial. The changes are not admissions of liability; they go only to show what could have been done before the accident.

97.

The plaintiff was correct to submit that WOMA was in breach of duty by not adopting the latter technique, which would have greatly reduced at least the extent of injury. The plaintiff was also correct to submit that WOMA was in breach of duty by not adopting the former technique, which would have prevented any risk of injury at all.

Causation

98.

The first respondent put no submission that the failure to adopt the technique of shutting down the power was not causative of the plaintiff’s injuries. Hence if that were a breach of duty, as has been found to be the case, there would be no causation problem.

99.

But the first respondent submitted that the absence of the break box was not causative of the plaintiff’s injuries. It pointed out that the break box would have been 10-15 metres from the end of the hose; it would not have been possible for either the plaintiff or Mr Kelleher to have moved speedily to slide the aperture in the break box open; it was not self-evident that Mr Kelleher could have done so since there had been industrial disputation because non-Transfield people had done work in the reactor or reactors; there was no evidence of whether the plaintiff’s injuries were caused when his arm first entered the hose, or caused before the break box could have been operated, or caused by attempts to remove the arm from the hose. Had the trial been by jury these submissions would have been inflammatory and profoundly counter-productive. It is sufficient now to say only that they are not convincing. There was no inhibition flowing from industrial disputation: the incident did not take place in the reactor; Mr Kelleher was responsible for and had not been inhibited from taking up the task of trying to clear the hose; whatever industrial disputation background there was did not prevent Mr Kelleher from responding to the instincts of common humanity in trying to pull the plaintiff’s arm out of the hose, and it would not have prevented him from activating the break box. If the injuries had been caused by the efforts of the plaintiff and Mr Kelleher to pull his arm out, the first respondent would remain liable for them, because Mr Kelleher would simply have operated the break box, had there been one, rendering it unnecessary to pull the plaintiff’s arm out. The hose was flexible and, had there been a break box, the plaintiff could have concentrated his energies on activating it rather than struggling on the floor trying to use his legs to free himself from the hose. In any event, according to the evidence of Mr Rogosic, the change actually implemented in relation to the break box involved having one worker operating the hose and another worker sitting beside the break box so that the former could signal to the latter whenever it was necessary to take vacuum pressure off the end of the hose. It would take no more than a couple of seconds for the shouts of the first worker whose arm was sucked into the hose to cause the second to activate the break box.

100.

To conclude that the plaintiff’s injuries were all caused at the moment his arm was sucked in and not thereafter is unwarranted. The plaintiff’s left arm was exposed to powerful vacuum forces for about 30 seconds. For most of that time the arm was exposed not only to the forces sucking it towards the truck, but to the reverse forces of the plaintiff and Mr Kelleher trying to pull it out. The possible causes of the plaintiff’s injuries are divisible into three groups: those derived from the vacuum forces generated by the pump operating at the moment the arm was sucked in, those operating from the vacuum forces generated by the pump from that time until the arm was pulled out, and those operating from the forces applied by the plaintiff, with the aid of Mr Kelleher, in the course of his frenzied struggles to extract his arm from the hose. The reverse force which Mr Kelleher, using two arms, employed would not have been applied if there had been a break box in accordance with the change actually implemented, for the worker next to that break box would have responded almost instantaneously to the accident. Even if the change actually implemented had not been fully implemented, but implemented only to the extent of inserting a break box, the worker in the position of Mr Kelleher would not have taken much longer to respond by operating the break box rather than by trying to pull the plaintiff’s arm out. And the plaintiff would not have been applying reverse force for the whole period either: while his instinctive reaction may have been to pull his arm out, he would also have been ensuring that the worker next to the break box (or alternatively the worker in the position of Mr Kelleher) activated it quickly.

101.

The first respondent submitted that, without medical evidence, it is not possible to say how much damage to the plaintiff’s arm was done at particular stages. This is not a realistic approach. One can say, even without medical evidence, that the longer the arm stayed in the hose, and the more the plaintiff and Mr Kelleher tried to pull it out, the more probable it was that additional damage was being caused. It is a matter of ordinary human experience that trauma to muscles and nerves resulting in lesions, tearing and haematomas caused by force will worsen the longer the force is applied and the more powerfully it is applied.

102.

The first respondent’s argument thus reduces itself to this: assuming that, even if there were a break box, some damage would have been done in the first couple of seconds after the arm entered the hose, it would not matter how little that damage was nor how much damage was done thereafter: the plaintiff is disabled from recovering any damages at all. It would not reflect well on the law if that submission were sound. To insist, as the first respondent did, on the need for expert medical evidence was to insist on something which would have wasted the time of the medical expert or experts, wasted the time of the court, and wasted the parties’ money.

103.

The probabilities are that a not insignificant amount of the plaintiff’s injuries would have occurred after the initial few seconds in which his arm was sucked into the hose. In the circumstances there is no bar to the conclusion that the plaintiff’s damage was caused by the breach of duty alleged. That is particularly so in view of the fact that the parties had agreed on the quantum of damages. Had this not been so, the trial judge could have reduced the quantum of damages awarded to allow for injuries caused before the break box became operative, were that the only breach of duty involved. To use the plaintiff’s sensible limitation of the dispute by agreeing on the damages as an indirect means of completely denying him recovery would not be satisfactory.

104.

In any event, the first respondent’s submissions operate on an erroneous assumption about the test for causation. The question is whether the taking of a particular step which the defendant did not take “more probably than not … would have prevented or minimized the injury which was in fact received.”[74] Unless all the damage to the plaintiff was caused when and immediately after his arm was sucked into the hose, the sliding open of the aperture in the break box would have minimized the damage by avoiding some of it – that which would have occurred after that time. That is so whether the aperture was slid open after a very short time by a worker placed behind it, or whether it was slid open a little later by a worker standing in the position of Mr Kelleher. It is less probable than not that all the damage was caused at the moment when, and immediately after, the plaintiff’s arm entered the hose. Doubts about what damage was caused when would go the question of quantum: but the parties’ agreement on quantum eliminated debate about it.

 

Brisbane Barrister – David Cormack

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