Dear Colleagues;
Mr Kuhl worked at a steelworks operated by BHP Billiton in WA. He was employed by Transfield in an area where small pieces of iron ore were "cooked" in a reactor, and his job was what is eloquently described as that of a "reactor rat", to go in from time to time and break up left-over ore and remove it with what was apparently a giant vacuum cleaner. A company called WOMA provided the vacuum equipment, a truck, a hose and would operate the machine and check the line. At 4:30 in the morning one day, the hose became clogged. Mr Kuhl tried to clear it (the suction was left on, however, as this was quicker and also assisted in telling whether the blockage had been cleared.) He then got Mr Kelleher, who was working for WOMA, to look at it; having done so, Mr Kelleher passed it back to Mr Kuhl, but shortly after taking the hose his arm was sucked into it, and he was seriously injured by the time it was extracted.
Mr Kuhl could not sue his direct employer due to Western Australian workers comp legislation, so he took an action against WOMA as liable for Mr Kelleher's actions. The lower courts found against him on various grounds.
The majority decision of the High Court (Heydon, Crennan and Bell JJ) ruled in favour of the worker. The majority (pretty clearly mostly Heydon J, who is the court's evidence expert) criticised the trial judge for the way that he had effectively found against the worker's credibility without signalling that at the time, or during the trial. In effect the trial judge seemed to imply that the very brief testimony of the worker as to how the accident had occurred meant that Mr Kuhl was "hiding something" (ie that it was really his own fault that his arm was sucked into the hose rather than being the result of defects in the system of work or equipment).
Accepting that, since he was not cross-examined on it, the worker's account should be accepted, the majority found that there was a duty of care owed by WOMA, who could foresee clearly that provision of this powerful vacuum equipment carried risks. (WOMA did not only supply the equipment, their workers were meant to be there to help the users like Mr Kuhl.) See [79]- the duty 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)".
The two claimed breaches were those mentioned- failure to provide a "break box" along the tube which would have allowed the suction to be quickly cut off in case of an incident like this; and the failure to have a system which involved shutting down the strong suction when the tube needed to be unblocked.
One issue that came up in the case is the principle in Nelson
v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214 that safety measures taken after an incident can provide evidence of what precautions should have been taken beforehand. While the majority does not rely on this extensively, at [94] they indicate that it is a valid principle, so long as its limitations are recognised- it shows, as they say, "what could have been done, not what should have been done". But it does at least assist in showing that a suggested precaution is not inordinately expensive or unreasonable. The "break box" had in fact been implemented after this incident, and even the minority judgment recognised that this was a relevant fact (see [38]-[41]).
{Those who are familiar with the Australian civil liability "reforms" might be interested to compare provisions such as the Civil Liability Act 2002 (NSW), s5C(c), which seems to be directed to this issue, and says:
"the subsequent taking of action that
would (had the action been taken earlier) have avoided a risk of harm does not
of itself give rise to or affect liability in respect of the risk and does not
of itself constitute an admission of liability in connection with the risk." It may be that while the rest of the provision says no more than the common law did, the word "or affect" mean that evidence of such cannot even be led? After all, if it cannot affect the question of liability it cannot be relevant to lead evidence about it? If this is what it means it would not be the first provision of the legislation to be absurd!}
To quickly summarise the rest of the case, the majority held that the evidence at trial established that both suggested breaches were established (see [97]); indeed, a close reading of the minority finds that even they would have agreed that the failure to provide the break box, at least, was a breach- see [44].)
On the final issue of causation, the majority said that clearly there was no doubt that if failing to shut off the suction was a breach, it had caused the harm. But even if the breach were confined to the failure to instal a break box, and even if (as the minority said) there was no guarantee that the break box would have avoided all harm (there may still have been a delay once the arm were sucked in before the suction could be cut off), the fact that the box would have "minimised" the injury was sufficient - see [104]. This was not, by the way, a finding that it was sufficient to show "decrease in risk" alone (there is a brief rejection of the view that "increase in risk" alone can amount to causation by the minority at [49]-[51], a discussion which is not doubted at all by the majority). It was simply that, in the view of the majority, a break box would on the balance of probabilities, have reduced some of the actual harm suffered, even if not all.
Without going into all the details, the minority judgment is really based on the fact that in their view the plaintiff did not lead enough evidence to establish duty and causation. But in this case I must say I agree with Heydon J and the majority.
Regards
Neil
Neil Foster,
Senior Lecturer,
Deputy Head of School & LLB Program Convenor,
Newcastle Law School,
Faculty of Business & Law.
MC158, McMullin Building,
University of Newcastle, Callaghan NSW 2308 AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931