Determining Duty: Scope and Content Revisited - Kuhl v Zurich Financial Services Australia Limited [2011] HCA 11

A Curwoods Case Note on Kuhl v Zurich Financial Services Australia Limited
Australia Litigation, Mediation & Arbitration
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Judgment date: 4 May 2011

 [2011] HCA 11

High Court of Australia1

In Brief

  • The High Court was asked to reconsider the question of whether a contractor on site owed a duty of care to the employee of another contractor and how the content and scope of that duty of care should be formulated.
  • The High Court was also asked to consider whether the evidence of how Mr Kuhl was injured was sufficient to establish that his injuries were causally related to the breach of duty.


On 19 November 1999, Geoffrey Lawrence Kuhl (Kuhl), the appellant in each of the appeals, suffered injury during the course of his work at a plant owned and operated by BHP Billiton in Port Hedland, Western Australia. Kuhl commenced employment with Transfield Construction Pty Limited (Transfield) in September 1999. He was employed to clean the reactor grid floors at the plant. Those performing this task were known as "reactor rats". The reactors cooked "fines" which were small pieces of iron ore. The cleaning of the plant involved, amongst other things, using a high pressured vacuum hose to clean the waste. The vacuum hose was attached to a vacuum truck.

Kuhl commenced proceedings against his employer, Transfield, but the claim was statute barred. Kuhl also commenced proceedings against WOMA (Australia) Pty Limited (WOMA) which was a deregistered company insured by Zurich Financial Services Australia Limited; and, Hydrosweep Pty Limited (Hydrosweep) which was also a deregistered company in place of which its insurer, QBE Insurance (Australia) Limited was sued.

Transfield had supervisors on site who would allocate work to each of its employees and conduct safety meetings prior to each shift commencing. Prior to each shift the workers were required to complete a job safety analysis (JSA).

There were 2 vacuum hoses in use to clean the reactor grid floors. One of those vacuum hoses was owned by WOMA with the second being owned by Hydrosweep. Hydrosweep provided a vacuum truck and 2 operators to WOMA for a 4-week period in November 1999 for use at WOMA's direction. WOMA would set up the equipment and supply 2 operators for the cleaning. One of the operators would operate the truck and the other would check and maintain the vacuum hose. WOMA would also assist in clearing any obstructions in the vacuum hose when Transfield employees were unable to do so. Both Kuhl and another reactor rat gave evidence that on-the-job training on the use of the vacuum hose was provided by WOMA employees.

The vacuum hose was between 4 and 6 inches in diameter. Kuhl described the hose as being flexible but awkward to use. It was not fitted with a handling device and lacked any relevant safety features.

At about 4.30 am on 19 November 1999, a blockage occurred in the vacuum hose. Kuhl exited the reactor and attempted to free the blockage. When he was unable to do so, Mr Kelleher (Kelleher), who was an employee of Hydrosweep, assisted Kuhl with the clearing of the blockage. Kelleher made a gesture to Kuhl that was interpreted by Kuhl that he had cleared the blockage and then he passed the hose back to Kuhl. At some point shortly after the hose was passed back to Kuhl his left arm was drawn into the hose becoming caught in it.

Kuhl and Kelleher were eventually able to extract Kuhl's arm. Kuhl sustained injuries to his arm.

At the hearing Kuhl gave evidence that Kelleher had passed the hose directly to him. He further stated that "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 ..."

Kelleher gave evidence that he was directed by WOMA in relation to the system of work he was to follow. He recalled that he had unsuccessfully attempted to unblock the hose before passing it back to Kuhl. He was not able to describe how Kuhl's arm became caught in the hose other than to say that he passed the hose sideways but in front of Kuhl with the suction directed away from Kuhl.

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.

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.

Kuhl called evidence from a number of Transfield and WOMA employees in relation to the work being performed and site safety. After Kuhl's accident various measures were taken to modify the vacuum hose. The initial modifications were unsuccessful but the subsequent modifications, namely the installation of a break box, did improve the safety of the vacuum hose.

Mr Gavin Lloyd Atkinson was called by Kuhl to give evidence. Mr Atkinson was the nightshift supervisor for WOMA. He stated his job was to give instructions for the work that Hydrosweep operators were to perform. Mr Donald Clarence McGillivray was employed by BHP Billiton as its shutdown superintendent. He gave evidence that WOMA's key role was cleaning the reactors when in shutdown. He said Transfield were engaged to supply total site maintenance and services and WOMA was to supply cleaning services.

Kuhl brought proceedings in the District Court of Western Australia alleging WOMA and Hydrosweep were negligent. Kuhl alleged that WOMA and Hydrosweep were negligent for amongst other things failing to:

(a) warn him of the danger of body contact with the suction inlet;

(b) ensure he was adequately trained in the proper operation of the vacuum hose;

(c) instruct him in the safe operation and handling of the vacuum hose;

(d) instruct their employees not to pass the operating unit to co-workers;

(e) supervise its workers operating the unit; and

(f) provide a vacuum hose with a protective mesh guard over the suction inlet and an appropriate grip handle, or the capacity to terminate suction.

Wisbey DCJ found that the reactor grid floor cleaning was performed by Transfield using equipment provided by WOMA. In this regard, the evidence of Mr McGillvray was rejected. It was also held that the duty owed to Kuhl by WOMA was to provide a vacuum facility suitable for the purpose of cleaning the reactor grid floor which did not constitute a risk of injury to those exercising proper care. Wisbey DCJ found that WOMA was entitled to expect that persons who used the vacuum hose, such as Kuhl, would be instructed as to its use in a competent manner and would be properly supervised by their employer, Transfield. The trial judge found the vacuum hose was suitable for its intended purpose and that the possibility of injury occurring in the circumstances of the case was not reasonably foreseeable. It was also held that the post-accident modifications to the vacuum hose were not proof of negligence on the part of WOMA.

Wisbey DCJ found there was no evidence that Kelleher had negligently passed the hose to Kuhl and there was no negligence on the part of Hydrosweep in failing to instruct Kelleher not to pass the vacuum hose to another person.

Wisbey DCJ, determined that neither WOMA nor Hydrosweep were negligent. It was also found that there was insufficient evidence to establish precisely how Kuhl's arm was pulled into the vacuum hose. In fact, the trial judge criticised Kuhl for being "less than expansive"  and "reluctant to say properly what happened to cause his arm to be in the vacuum hose".

On this basis it was found that there was not sufficient evidence to establish that Kuhl's injuries were causally related to breach of any duty owed to Kuhl.

Damages were agreed between the parties in the sum of $265,000. It was also agreed that there would be no finding of contributory negligence against Kuhl if WOMA and/or Hydrosweep were found liable to Kuhl.

Kuhl appealed against the dismissal of his claim against both WOMA and Hydrosweep. The Court of Appeal upheld the decision of the District Court. Newnes JA, with whom Martin CJ agreed, delivered the majority Judgment. Wheeler JA delivered the dissenting Judgment.

In the Court of Appeal, Kuhl appealed the trial judge's decision on 6 grounds. The grounds were that the primary judge erred as follows:

  1. In finding that Transfield was responsible for reactor cleaning when he should have found that WOMA was in charge of the cleaning.
  2. In finding that:
    (a) Kuhl was reluctant to say precisely how his arm was drawn into the vacuum hose;
    (b) Kelleher directed the vacuum hose away from Kuhl when passing it to him;
    (c) a subsequent action by Kuhl had caused his arm to be drawn into the vacuum hose.
  3. In finding that Hydrosweep: did not owe a duty of care to Kuhl; was not vicariously liable for Kelleher's negligence; and, was not negligent in failing to instruct Kelleher not to pass the vacuum hose whilst the power was on to another person.
  4. (a) In failing to find that WOMA owed a duty of care to Kuhl to prescribe a safe system of work and to provide safe plant.
    (b) In finding that WOMA was entitled to expect that the persons using the vacuum hose would be competent in its use and properly supervised by their employer and that the hose was suitable for its use under those conditions.
    (c) In failing to find that WOMA had breached its duty of care.
  5. In finding that the possibility of the injury occurring was not reasonably foreseeable having applied the wrong test of foreseeability. 
  6. In failing to find that the post-accident modifications made by WOMA established that it was negligent.

Newnes JA held that there was no evidence to establish that WOMA owed Kuhl a duty to provide a safe system of work. Newnes JA also found that there was no evidence that WOMA had a position of authority over Kuhl or any requirement to supervise Kuhl in performing his work, rather it was Kuhl's employer, Transfield, who held these obligations.

Newnes JA also held that WOMA did not owe a duty to instruct Kelleher on how to safely pass the vacuum hose.

Wheeler JA was of the view that it was not necessary to establish the precise mechanism by which Kuhl's arm came to be in the vacuum hose. Expressing a contrary view, Newnes JA had described this aspect of the evidence to be a "surprising feature" of the case. Wheeler JA also disagreed with the trial judge's findings that the risk of injury in the circumstances was not reasonably foreseeable. According to Wheeler JA, the risk of injury occurring was reasonably foreseeable when the vacuum hose was operating. In respect of the duty of care owed by WOMA, Wheeler JA found that the duty was to provide a hose which was safe for use and that there were options available to WOMA which could have prevented the risk of injury to users such as Kuhl.

High Court Decision

Kuhl appealed the decision of the Court of Appeal to the High Court of Australia contending that the majority in the Court of Appeal had incorrectly construed the scope and content of the duty of care owed by WOMA to Kuhl. Kuhl did not appeal the findings against Hydrosweep.

In the High Court, Kuhl formulated the duty of care owed by WOMA in the following way:

  1. ""to take reasonable care" for the safety of the plaintiff "whilst he was engaged in carrying out his duties at the HBI Plant for [Transfield] not to expose [him] to any risk of injury or damage of which WOMA, its servants or agents knew or should have known and/or to take reasonable measures to ensure the system of work provided to and/or for [him] was safe"."
  2. To ensure, as far as reasonably practicable, that Kelleher passed the vacuum hose to him safely.
  3. To ensure the vacuum hose was as safe as it could reasonably be.

The majority Judgment was delivered by Heydon, Crennan and Bell JJ. Before the majority considered the duty of care owed by WOMA to Kuhl and whether there had been a breach of that duty, the majority addressed their concerns in relation to the trial judge's criticisms that Kuhl's evidence was "less than expansive" in relation to how his arm was drawn into the vacuum hose. As set out above, the trial judge had formed the view that Kuhl was "reluctant. The majority noted that Kuhl had not been asked further to say precisely what happened" questions in either examination-in-chief, cross-examination or by the trial judge in relation to precisely how his arm came to be in the vacuum hose. The majority considered the trial judge's conclusion that there was a "reluctance" on the part of Kuhl to provide a detailed description of how the accident occurred to be an erroneous finding. According to the majority, it was one thing to suggest that Kuhl had not been asked the right questions, another thing to say that he did not answer the questions that were asked of him, but it was even more serious to suggest that Kuhl had been reluctant to answer a question put to him. The majority held it is a serious conclusion to suggest that a witness was reluctant to say what occurred and that that witness was deliberately failing to comply with the duty to tell the whole truth.3

The majority held that if the party witness is to be criticised for withholding the truth, two conditions must be satisfied. Firstly, it must be established on what basis the trial judge felt the witness had been withholding the truth, in other words the trial judge must give adequate reasons, and secondly, the witness must have been given an opportunity to deal with the criticism. In this matter there were no reasons given as to why the trial judge reached the conclusion he did about Kuhl's evidence and Kuhl was not provided with an opportunity to deal with the perceived deficiencies in his evidence. The majority found this was a breach of the duty of procedural fairness to Kuhl.

Once the majority had dealt with trial judge's criticisms of Kuhl's evidence they then considered how the duty of care owed by WOMA to Kuhl should properly have been formulated. The majority found there was a duty of care on WOMA to provide vacuuming equipment that would not subject foreseeable users of the hose to an unreasonable risk of injury when using the equipment. That duty extended to risks in relation to the passing of the hose. The risk included the risk arising from the way the hose was designed and the way it was to be used. The scope and content of this duty was formulated in this manner following consideration of the circumstances involved in WOMA's: supply of the vacuum hose and other equipment; setting-up of the vacuuming hose; clearing of blockages; and directing and supervising of the WOMA and Hydrosweep operators. Given the circumstances, the majority also found that there was a duty of care on WOMA in relation to the passing of the hose.

Turning then to the issue of breach of the duty of care, the majority in the High Court held that there was a failure by WOMA to issue instructions not to pass the vacuum hose under pressure, ie to ensure the power was turned off before attempts were made to clear the hose, and in failing to install a break box 10 or 15 metres from the head of the hose to break the vacuum pressure at the hose and by letting air in.

The majority held that in determining whether Kuhl's injuries were caused by the breach of duty the appropriate test was to consider whether the taking of a step which WOMA did not take "more probably than not ... would have prevented or minimized the injury which was in fact received".4

French CJ and Gummow J, in the minority, agreed with the reasons of Newnes JA in finding in favour of WOMA.5 French CJ and Gummow J warned that there is an inherent danger in determining the cause of injury and what could have been done to prevent that injury before formulating the relevant duty of care, its scope and content. When formulating the duty of care French CJ and Gummow J also warned that the duty must not be too broad6 or narrow7.

In this regard, the minority was in agreement with the majority judges in the Court of Appeal. The minority judges held that Kuhl's various formulations of duty of care were in fact either too broad or too narrow. According to French CJ and Gummow J the relevant duty of care owed by WOMA to Kuhl was to take reasonable care to provide vacuuming equipment that would not subject foreseeable users of the hose, such as Kuhl, to an "unreasonable risk of injury".

This was in essence the same duty formulated by the trial judge, although the trial judge had imposed a further requirement that the user of the hose be "exercising proper care". The Chief Justice and Gummow J were not satisfied that there was sufficient evidence that the installation of a break box would have prevented or minimised Kuhl's injuries.

The case highlights the importance of carefully considering whether the risk of injury was reasonably foreseeable, and what the scope and content of each party's duty of care comprises before considering whether there has been a breach of the duty of care. Taking a retrospective look at the injuries caused and what could have been done to prevent them is an erroneous undertaking of how to determine duty of care and whether there has been a breach of the duty. Similarly, changes to a system of work after an accident, which occurred in this case, only demonstrates what could have been done, not what should have been done.

The High Court has also emphasised the importance of extracting as much information from parties as possible to explain relevant aspects of the evidence. A party witness cannot later be criticised for not providing expansive evidence or that their evidence was lacking if they were not afforded an opportunity to explain any perceived deficiencies in their evidence or suggestions they are withholding evidence.

Once breach of duty has been established the test for causation is whether the defendant's failure to take preventative measures more probably than not was causative of the plaintiff's injuries.


1 French CJ, Gummow J, Heydon, Crennan and Bell JJ

2 Paragraph 17

3 Jones v Dunkel [1959] HCA 8

4 Victoria v Bryar (1970) 44 ALJR 174 at 175

5 Paragraph 15

6 Vairy v Wyong Shire Council [2005] HCA 62

7 Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61

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