Kuhl v Zurich Financial Services Australia Ltd

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gummow J,French CJ
• Judgment Date: 04 May 2011
• Neutral Citation: [2011] HCA 11,2011-0504 HCA A
• Docket Number: P31/2010
• Date: 04 May 2011

[2011] HCA 11

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Heydon, Crennan and Bell JJ

P31/2010

Geoffrey Lawrence Kuhl

Appellant

and

Zurich Financial Services Australia Ltd & Anor

Respondents

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)

Kuhl v 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.

ORDER

1. Appeal allowed.

2. 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) judgment be entered against the first respondent in the amount of $265,000.

3. The first respondent pay the appellant's costs of the appeal and in the courts below.

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 Act 1981 (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

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.

The accident

6 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.

7 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.

8 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.

9 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.’

10 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.

11 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

12 In the District Court, Wisbey DCJ found that Mr Kuhl failed to establish that Hydrosweep owed him a duty of care or was...