Alcoa Portland Aluminium Pty Ltd v Husson & Anor [2007] VSCA 209

Alcoa Portland Aluminium Pty Ltd v Husson & Anor [2007] VSCA 209 - VSCA 2007 case summary — Zoe

[96]

**45 In this proceeding Husson claimed as against Alcoa and Keppel damages for personal injuries that he said were sustained by him in the course of his employment with Keppel when carrying out work at the smelter operated by Alcoa. The circumstances surrounding the injury and the particulars of Husson's claim are set out in the reasons of the learned trial judge and it is sufficient merely to summarise what his Honour said in that regard. At the time of the injury Husson was 46 years of age and was an experienced rigger. He was employed by Keppel and was part of its team carrying out maintenance at the ingot mill building at Alcoa's smelter. Husson's principal duties involved working with cranes and forklifts for the purpose of general maintenance, including using chain blocks and removing and installing items of machinery. On the occasion in question, during a shut down of Alcoa's plant, Husson was required to participate in the removal of a hydraulic ram that formed part of a centring device. The work was carried out, as I have said, at the ingot mill building at the smelter. During the ordinary operation of the mill, ingots were conveyed to a cooling cabinet within which they travelled up an ascending conveyor deluged with water. The cooling cabinet itself comprised a series of three attached enclosed sections increasing in height to accommodate the conveyor as it rose. The ingots moved from the cooling conveyor on to a layer conveyor which transferred them to a machine by which the ingots were stacked in bundles or rejected. There was a centring device that was located at the point when the ingots came out of the cooling cabinet and moved from the cooling conveyor on to the layer conveyor. In order to move the hydraulic ram that powered the centring device, presumably for maintenance purposes, the practice adopted by Keppel employees was to use a team of two or three workers above the conveyors and one worker below. Husson was usually asked to work below the conveyor because the space was confined and, in particular, the head room was relatively low - approximately 4'6". He was of relatively short stature (5'7") and accordingly better able to work within the space than a number of his taller colleagues. It seems that once the ram was unbolted from its supporting brackets, it was lowered through an opening to Husson who was immediately below it. The ram weighed approximately 10 kg and it was necessary that, initially, it be handled in a vertical position.

[112]

59 Importantly, it was said, the finding that the protrusion existed at the end of one of the columns in the work area departed significantly from Husson's case as it was put to the court. It was pointed out that the case for Husson was opened and conducted during the first six days of the trial on the basis that the protrusion was a piece of metal - 80-100 mm long - that had been cut off with an oxy-actelyene device such that there remained a 'jaggedy tooth honeycomb edge on it'. It was said for Alcoa that there was no suggestion during this part of the case that there was corrosion to the steel work in the vicinity of the accident that was being patched. The first reference to these matters, said counsel, was during the seventh day of the trial in the course of cross-examination of Peter John Cowie, a mechanical fitter and equipment manager who was employed by Alcoa. In answer to a question dealing with sharp edges that existed on caster 2 at the relevant time, the witness effectively volunteered that there 'may have been some corrosion which formed a potential sharp cutting edge'. The presence of corrosion in the area in question was then taken up in cross-examination, it was said, by reference to a photograph of the cabinet (exhibit C). The witness said, however, that there was not 'a considerable amount' of corrosion present. The photograph shows, amongst other matters, a pillar with a V-bolt wrapped around it at an angle protruding outwards from the pillar. Some corrosion seems also to be present on the pillar. Counsel for Alcoa objected to Mr Cowie being cross-examined about the work practices at the plant in relation to corrosion and, in particular, the hazards that may have been present by reason of those matters. The objection was taken on the principal basis that Husson's case was opened on a different footing. It was argued that Husson's original claim, and one that Alcoa was brought to court to meet, was that the protrusion was the result of work on cross-bracing that supported the legs of the stand that left a piece of metal sticking out of the bracing. In those circumstances, it was claimed that Husson should be not permitted to change his case so materially and so late in the trial. His Honour, however, overruled the objection saying that 'the probabilities have to be assessed in light of the whole of the evidence as to the system of work'. This ruling is not the subject of the appeal.

[115]

62 I consider, however, that, notwithstanding that his Honour rejected Husson's claim that the source of the protrusion was work on the cross-bracing that left a remanent of it 'sticking out', it was open to him to conclude on the whole of the evidence that Husson injured himself on a protrusion as he was backing with the ram, and that the origin of the protrusion was possibly repair or like work in respect of corrosion at or in the vicinity of the upright on which the appellant struck his back. His Honour was plainly entitled to find Husson a credible witness as to his claim that he injured himself on a protrusion notwithstanding that his explanation or belief as to its origin had to be rejected. As a matter of logic, the latter finding did not compel the rejection of the substance of Husson's claim as to how the injury occurred. And as to Husson's credibility, the judge had the opportunity of gauging it during the course of his evidence which this Court plainly does not have.[65] Moreover, there was evidence before his Honour on which he could properly conclude that the protrusion may have arisen from rectification work carried out in relation to corrosion that built up in the area. Thus, Mr Cowie and Phillip Andrew Watt who was, at the relevant time, a reliability specialist with Alcoa, gave evidence to the effect that there was some corrosion in the area in question and the remedial work that was carried out in relation to it may have produced a potentially sharp cutting edge. Moreover, it seems that such developments would not have been shown on the company's plans of the machinery and locality. Furthermore, Richard John Wigger, who is a qualified design draftsman in mechanical engineering and who also has qualifications as a fitter and turner (and who was familiar with the conveyors in question and the structures which supported it) was called as a witness by Alcoa and said that there was a considerable amount of corrosion where the cross member was likely to attach to the sides or the upright. Mr Wigger further said that where there has been corrosion in certain areas, patches were placed there essentially to stop the water from the cooling cabinet leaking onto the floor below and causing a hazard. Thus, there was evidence before his Honour that there was, or had been, corrosion in the area where the accident occurred and that work had been carried out in relation to it by or on behalf of Alcoa from which it was open to conclude that it may have contributed to the origin of the protrusion.

[195]

The finding by the Master distorted the issues joined between the appellant and the respondent. The latter was not to know, or indeed even to suspect, that a deviation as a result of momentary inattention might be found as the cause of the accident. If it had, then it would no doubt have cross-examined about it. The appellant having asserted and reasserted one cause only of the accident, the respondent was not bound to go on an excursion in cross-examination to identify and refute a version not even hinted at by the appellant. The finding by the Master of a version not advanced by the appellant also inevitably affected the resolution of the issue of contributory negligence on the part of the appellant. If there were no unidentified motor vehicle and he was only momentarily inattentive, why was it that his deviation was so great as to take him to the side of the roadway? Was he not aware of the potholes there? Why did he not correct the deviation before he reached them? Was he not aware of the final fracture of the steering apparatus? What part did it play in his fall? The appellant had no opportunity of exploring these crucial matters in cross-examination, or of making submissions about them and their relevance to an accident in which no car was involved and which was precipitated by a momentary lapse in concentration. The presence of the potholes on the edges of the road only becomes significant if the appellant, as he alleged, was brushed into them. A finding that he was not, but that a momentary lapse in concentration took him into them, is a quite different matter. It gives rise to a question not addressed by anyone at the trial, indeed, not even by the Master, and that is, how it could reasonably be expected that the respondent might and should guard against momentary inattention by eliminating potholes of which the appellant was well aware, and which were on the edges of a roadway, the characteristics of which were well known to him. Had the respondent contemplated the case found against it, no doubt it would also have wished to make different submissions with respect to the fragility of the bicycle and the part played by that in this changed scenario of the accident.[107]

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