Schellenberg v Tunnel Holdings Pty Ltd

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ,McHugh J,Gaudron J,Kirby J,Hayne J
• Judgment Date: 13 April 2000
• Neutral Citation: 2000-0413 HCA C,[2000] HCA 18
• Docket Number: P39/1999
• Date: 13 April 2000

[2000] HCA 18

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Kirby and Hayne JJ

P39/1999

Peter Schellenberg

Appellant

and

Tunnel Holdings Pty Ltd

Respondent

Representation:

E M Heenan QC with D M Bruns for the appellant (instructed by Yesner & Company)

J R Criddle with H M O'Sullivan for the respondent (instructed by J R Criddle)

Schellenberg v Tunnel Holdings Pty Ltd

Negligence — Res ipsa loquitur — Circumstances in which res ipsa loquitur can be used — Effect of the application of res ipsa loquitur — Whether res ipsa loquitur affects the burden of proof — Whether res ipsa loquitur more than a permissible process of reasoning.

Practice and procedure — Amendment — Reopening of issues at trial — Need for care.

Words and phrases — ‘ res ipsa loquitur’.

ORDER

Appeal dismissed with costs.

1 Gleeson CJ and McHugh J. The principal question in this appeal is whether the plaintiff can rely on the doctrine of res ipsa loquitur to make out a case of negligence in circumstances where a hose, carrying compressed air, which he was using in the course of employment, became loose and swung upwards striking him on the face. In our opinion, the doctrine of res ipsa loquitur did not apply, but, even if it did, its operation was spent once the trial judge found that the cause of the occurrence was the hose separating from a coupling to which it was attached. Once that finding was made, the question in the case was whether the plaintiff had proved that the separation was the result of the defendant's negligence. Because there was no evidence that established that the defendant was negligent in the assembly, inspection or maintenance of the hose and coupling, the Full Court of the Supreme Court of Western Australia was right to hold that the plaintiff's action failed.

2 The appellant (‘the plaintiff’) sued his employer, the respondent (‘the defendant’), in negligence for personal injury caused by a work place accident. At trial, the plaintiff failed to establish any specific allegation of negligence. He was permitted, however, to amend his pleadings to make ‘an allegation that the fact that the air hose separated from the fitting was in itself evidence of negligence.’ 1 The learned trial judge, Muller DCJ, found for the plaintiff on this basis, a finding that was unanimously overturned on appeal 2. In our opinion, the Full Court was right to so hold. On proper analysis, the ‘principle’ of res ipsa loquitur is inapplicable to the facts of this case. Furthermore, the learned trial judge's specific findings based on analogous processes of inferential reasoning are not supported by the evidence. The appeal should be dismissed.

The trial judge's findings

3 The plaintiff was born in Switzerland in 1942 where he qualified as a diesel mechanic before arriving in Australia in 1974. He commenced work in 1990 as a supervisor/foreman with the defendant, a company which is engaged in the supply and servicing of pumps and valves. The defendant's workshop contained a number of tools which utilised compressed air supplied by flexible hoses connected to a compressor outside the workshop.

4 The plaintiff was injured on 9 January 1991 while working with a ‘pencil grinder’ to smooth the inner surface of a ‘body valve’. The pencil grinder being

used by the plaintiff was one of the tools which required compressed air to function. The compressor outside the workshop had approximately 20 outlets for flexible hoses to connect the air to the tools. The hoses were attached to the compressor by a valve to which the hose was plugged. In the present case, the other end of the hose was attached to an adaptor and secured by a ‘worm drive clamp’. The adaptor was itself attached to a special type of fitting known as a ‘jamec coupling’, which in turn was attached to another adaptor which screwed into the pencil grinder. If the tool was unplugged from the adaptor or if the hose was removed from the valve connecting to the compressor, then the appropriate fitting would switch off the air.

5 The plaintiff alleged that, while he was working with the pencil grinder, the hose became detached and that the escaping compressed air caused the hose to strike him in the face and then swing uncontrollably. The plaintiff raised his upper body sharply to avoid the swinging hose and felt an intense pain in his back which caused him to stop work immediately and report the incident to the workshop manager. The pain subsided shortly after, and he resumed work the same day. However, he woke the next morning in considerable pain and was subsequently certified unfit for work by a medical practitioner. He made a number of attempts to return to work but ultimately found that the pain was too great. His employment with the defendant was terminated on 6 January 1992, and he has had no meaningful employment since that date.

6 In his statement of claim, the plaintiff relied on a number of particulars of negligence:

‘The Defendant was negligent in that it

• (a) failed to provide a safe and/or adequately safe system of work,

• (b) exposed the Plaintiff to unnecessary dangers and risks,

• (c) permitted the grinder to operate while attached to a hose that was inadequate for the purposes of supplying high pressure air to the grinder,

• (d) failed to introduce a velocity fuse within the air system supplying the grinder,

• (e) permitting [sic] the Plaintiff to operate a pneumatic grinder equipped with airline couplings which were capable of working loose,

• (f) failed to ensure that the buddy valve was located in a horizontal orientation prior to being worked upon,

• (g) failing [sic] to provide the Plaintiff with sufficient protective equipment,

• (h) allowed the Plaintiff to operate a grinder which was unsafe in all the circumstances,

• (i) failed to ensure that the grinder was connected to hoses capable of delivering high pressure air to the grinder.’

7 The trial judge specifically rejected particulars (c), (d), (e), (f) and (i) as establishing a breach of the duty owed by the defendant to the plaintiff. His Honour went on to say that ‘[f]or the reasons given I am not satisfied the plaintiff has proved any of the particular acts or omissions it has relied upon as constituting negligence on the part of the defendant.’ 3

8 At the conclusion of the evidence, the learned trial judge heard and granted a motion by the plaintiff that he be permitted to amend his statement of claim to include particular (j) — that ‘the fact that the air hose separated from the fitting is in itself evidence of negligence.’ His Honour adjourned the trial to permit the parties to call further evidence. The evidence that was led was principally concerned with the precise position at which the hose had separated from the grinder. Although his Honour had reservations about the evidence before him, he ultimately found that the hose had separated from the coupling, rather than that the coupling had separated from the grinder. This finding was upheld by the Full Court 4.

9 The learned trial judge found that in this case the risk of the air hose detaching was reasonably foreseeable, as it had occurred on a couple of previous occasions 5. His Honour then cited this Court's judgment in Vozza v Tooth & Co Ltd6 where Windeyer J said:

‘For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably

failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.’

10 The learned trial judge went on to say that 7:

‘[I]n Australia the principle of res ipsa loquitur simply involves an application of the principles of circumstantial evidence. The onus remains with the plaintiff [throughout] to establish his case on the [balance of] probabilities [8] … In deciding whether the plaintiff has proved his case to the required standard all the evidence, including any given by the defendant, must be considered … The plaintiff must show that the accident was of a kind which does not ordinarily happen without negligence and that the defendant is responsible because it was in exclusive control of the equipment which caused the injury.’

11 His Honour then proceeded to make findings for the purpose of applying the principle of res ipsa loquitur9, saying:

‘I am satisfied on the evidence that the defendant was in exclusive control of the equipment being used by the plaintiff. The evidence is silent as to who assembled the equipment being used by the plaintiff at the time of the accident. Since, however, the equipment was being used in the defendant's workshop it is open to me to infer, as indeed I do, that it was assembled by one of the employees engaged by the defendant.’

12 Curiously, his Honour did not refer to the fact that the plaintiff was the employee responsible for the supervision of the hoses and the air pressure system. Nor did he make a finding as to whether this accident was one that would not ordinarily occur without negligence on the part of the defendant. His Honour then proceeded to examine the cause of the separation 10:

‘As a matter of common sense there are a number of factors that might have caused the air hose to separate from the jamec coupling. The air hose might have been defective or unduly worn at the end where it was attached to the coupling; the hose clip may have been defective or may have become loose; the end of the adaptor on the one end of the jamec coupling to which the hose was attached may have been defective or become worn; there may have been a sudden surge in air pressure which the equipment could not cope with. These are all speculative factors unsupported by any evidence. The only definite fact established on the evidence is that the air...