Australia: Advocate’s immunity extends to preparation of evidence

Legal Directions – June 2011
Last Updated: 21 June 2011
Article by Stephanie Bainat and Ian Denham


Mr Kuhl was employed by Transfield Constructions Pty Limited ('Transfield') to clean reactor grid floors at a plant owned by BHP Billiton. His duties required him to use a special vacuum to remove iron waste material.

Transfield had contracted with WOMA (Australia) Pty Limited ('WOMA') to provide the vacuum truck, the hose and other equipment relevant to the vacuuming system. At the relevant time Hydrosweep Pty Limited ('Hydrosweep') had supplied avacuum truck and two operators to WOMA for use at WOMA's discretion.

On 19 November 1999, Mr Kuhl injured his left arm when it was sucked into a hose after the hose was passed to him by Mr Kelleher,an employee of Hydrosweep that had been provided to WOMA for their use. It was not entirely clear how Mr Kuhl's arm actually became caught in the hose, but it was accepted that the vacuum was on.

Mr Kuhl sued WOMA and Hydrosweep in  negligence for his injuries. He did not sue his employer, Transfield, for statutory reasons. Proceedings were instituted against the insurers for WOMA and Hydrosweep, as both companies had been deregistered prior to commencement of  proceedings.

At trial

Mr Kuhl alleged that WOMA owed him a duty of care to take reasonable care for his safety whilst he carried out his work; not to expose him to any risk of injury or damage which WOMA knew or ought to have known and; to take reasonable measures to ensure the system of work provided to and/or for him was safe.

Wisbey DCJ accepted that WOMA owed Mr Kuhl a duty of care, but held that the duty of care was to provide a vacuum facility suitable for the purpose, which did not constitute a risk of injury to those exercising proper care in its use. The vacuum was suitable for its purpose, and it was not reasonably foreseeable that an injury such as that which occurred would result. Accordingly, it was held there was no breach of the duty owed. This was especially where Mr Kuhl was unable to identify how his arm was drawn into the vacuum hose.

Mr Kuhl failed to establish that Hydrosweep owed him a duty of care. This decision was not challenged.

Court of Appeal

The majority (Martin CJ and Newnes JA) in the WA Court of Appeal found that there was no evidence that WOMA owed Mr Kuhl a duty to provide a safe system of work, nor any evidence that WOMA had any authority to supervise Transfield employees.

Wheeler JA dissented and considered there was a reasonably foreseeable risk of injury due to the manner by which the hose was passed.

High Court

The High Court, by a 3/2 majority, allowed the appeal and found that WOMA owed Mr Kuhl a duty of care, that the duty had been breached and the breach was causative of the injury.

Heydon, Crennan and Bell JJ accepted that WOMA owed a duty of care to provide a hose, truck and vacuuming facility that would not subject foreseeable users to an unreasonable risk of injury. That duty extended to risks in relation to the passing of the hose, whether those risks arose from the way the hose was designed or the way it was used.

They considered the passing of the hose was dangerous and exposed Mr Kuhl to an increased risk of injury, such that it imposed a duty to act, as opposed to a duty to take reasonable care when acting.

For a duty to act to be imposed the common law required some special relationship between the parties and 'some broader foundation than mere foreseeability', which, in their view, was satisfied in this case. The majority then found that WOMA had breached that duty of care by failing to install a safety mechanism, known as a break box (which had been installed after the incident) and failed to instruct employees to turn off the hose before passing it on.

The majority noted that the installation of the break box after the injury shed light on what could have been done before the incident, but did not lead to an automatic conclusion that WOMA had breached its duty of care. However, given there was no evidence to suggest that the break box or instructions to turn off the hose was either inordinately expensive or in any other way disadvantageous, the majority accepted Mr Kuhl's injury could have been prevented, or at least the severity of his injuries reduced, had they been implemented prior to the event.

The majority also criticised the trial judge's decision that Mr Kuhl's reluctance to say precisely what happened meant that he was deliberately failing to comply with his duty to tell the whole truth. This finding went beyond the Jones v Dunkel inference that the evidence would not have assisted. Criticism of a party or witness for deliberately withholding the truth in a fashion crucial to the dismissal of that party's claim could only be made when two conditions were met. Firstly, reasons were given for the conclusion that the truth had deliberately been withheld and secondly, the party or witness must have been given an opportunity to deal with the criticism.

The majority found that neither condition had been met, and that this would normally justify an order for a new trial. However, given the passage of time since the injury and Mr Kuhl's desire for a judgment, the majority elected to proceed as though the trial judge's reasoning had not existed.

French CJ and Gummow J, in dissent, emphasized that the first step in identifying whether there had been a breach of duty of care was to look at whether there was a duty of care, and the scope and the content of that duty.

There were inherent dangers in a negligence claim to look first at the cause of the damage and what could have been done to prevent that damage, and from there determine the relevant duty, its scope and content. Secondly, the formulated duty must neither be so broad as to be devoid of meaningful content, nor so narrow to obscure the issues required for consideration.

French CJ and Gummow J found that WOMA owed a duty to take reasonable care in providing vacuuming equipment that would not subject reasonable users of the equipment to an unreasonable risk of injury.

Whether a break box should have been installed on the hose raised a question as to the safety of the hose itself and therefore fell within the scope of that duty. However, Mr Kuhl could not establish that his injuries were caused by the absence of the break box. They also considered that the passing of the hose was not sufficiently  dangerous to impose a duty to act and instruct. WOMA was not responsible for the training of Mr Kuhl nor was Mr Kuhl subject to WOMA's control.

Mr Kuhl was ultimately successful, and damages were awarded to him to for an amount that had been agreed to by the parties prior to hearing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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