Australian Iron & Steel Pty Ltd v Krstevski - [1973] HCA 42 - HCA 1973 case summary — Zoe

CTHHCA

Australian Iron & Steel Pty Ltd v Krstevski

[1973] HCA 42

High Court of Australia|1973-07-01|Before: Mason JJ, Menzies J, Owen JJ

View original source

At a glance

Source facts

Court

High Court of Australia

Decision date

1973-07-01

Before

Mason JJ, Menzies J, Owen JJ

Source

Original judgment source is linked above.

Judgment (50 paragraphs)

[1]

High Court of Australia Barwick C.J. Menzies, Walsh, Gibbs and Mason JJ. Australian Iron & Steel Pty Ltd v Krstevski [1973] HCA 42

[2]

ORDER Appeal allowed with costs. Orders of the Supreme Court of New South Wales Court of Appeal Division set aside and in lieu thereof order that the appeal to that Court be allowed with costs and a verdict directed to be entered for the defendant with costs.

[3]

An employee, who sues his employer for damages for negligence causing injury at work, is not entitled to have the verdict of the jury upon his claim unless there is evidence that the employee's injury was caused by the failure on the part of the employer, or those for whom the employer was responsible, to take reasonable care for the safety of the employee. Sometimes the happening itself provides the requisite evidence - res ipsa loquitur. In other cases it is necessary that there should be evidence from which negligence can be inferred. It is not enough that there is evidence to show that the employment involved the employee in "extreme risk" of "fearful consequences" and that the employer did not take any precaution to protect the employee in the event of that risk - notwithstanding due care - becoming a reality. Even in this technological age it is not a matter of common sense that, in every case, some precaution can and should be taken to protect an employee from the harmful consequences of a happening which may occur notwithstanding the exercise of reasonable care on the part of the employer. In so far as the judgment of the Court of Appeal of the Supreme Court of New South Wales, which is under appeal, asserts the contrary of the foregoing propositions, it is, in our respectful opinion, in error and finds no support either from the decision of the Court of Appeal in Dixon v. Cementation Co. Ltd. [1] , or the observations of Dixon C.J. in Neill v. N.S.W. Fresh Food and Ice Pty. Ltd. [1] , upon which it seems to have been based.

[8]

[1953] A.C. 180, at p. 195. In the course of his judgment in this case, Dixon C.J. said [2] : The burden of establishing that the plaintiff appellant suffered the injuries of which he complained through the negligence of his employers or someone for whose acts or omissions they were answerable rested upon the plaintiff who now appeals In effect the plaintiff says that he was injured at work, he slipped where it was slippery and where it could not but be slippery, something ought to have been done to prevent his hurting himself by slipping and it was for the jury to say what. Of course they did not say what; they simply said that the defendant must pay damages Neither by direct evidence nor reasonable inference did it appear that any course could be taken to protect the plaintiff from the danger in his task consistent with the full accomplishment of its evident purpose It must be remembered that the danger from which he claims that he should have been protected was that of injuring himself by slipping while crouching in a confined cylinder, not, so one would think a priori, an extreme risk of any fearful consequence. And evidence was not led to establish any high degree of risk or of danger. This final observation - which, in the context, meant no more than that, upon the evidence in that case, no precautions were called for - has been treated as establishing the proposition that, where there is an extreme risk of fearful consequences, evidence that some precaution, consistent with the full accomplishment of the evident purpose of the work being done, could have been taken to protect the plaintiff from danger, is not necessary and, the mere fact that in such a case no such precautions have been taken is, of itself, sufficient evidence of negligence. This inference is entirely unwarranted.
1. [1960] 1 W.L.R. 746, at pp. 747-748.
2. [1945] A.C. 197, at p. 203.
3. [1960] 1 W.L.R., at p. 748.
4. (1963) 108 C.L.R. at, pp. 368-369.
5. [1953] A.C. 180, at p. 195.
6. (1963) 108 C.L.R., at pp. 364-365.

[16]

A tuyere, which is a salt-water-cooled copper jacket fitting into the wall of the furnace and protruding into the furnace, is the inlet through which super-heated air is forced under pressure into the furnace to light and to support the combustion of the coke which is burnt to heat the metal and limestone fed in automatically at the top of the furnace. Tuyeres burn out from time to time. They will do so if the water cooling is interrupted, either by a blockage or by a leak involving the loss of water pressure. They are also likely to burn out if, in the operation of the furnace, molten material collects on or near the mouth protruding into the furnace. This may happen, for instance, if, by reason of the leaking of water, part of the contents of the furnace in the vicinity of the leak hardens and obstructs the flow of molten material which would otherwise pass down to the floor of the furnace. It is, therefore, part of the task of the furnace foreman to inspect the tuyeres regularly and, in case of fault, to adjust or replace any one which is not working properly. It is good practice, when a tuyere is replaced while a furnace is working, to reduce its capacity by filling the six-inch aperture with fire clay and, by means of a bar, making in that fire clay a two-inch aperture. This, with the operation of adjoining tuyeres at full bore, tends to prevent any collection of molten material at the mouth of the new tuyere. In an hour or two - long after any build up of cooled material upon or near the mouth of the tuyere has fallen down and the molten material is descending normally - the fire clay blows into the furnace and the tuyere operates at full bore. When a tuyere does burn out, and this happens occasionally despite regular and proper inspection and maintenance, there is a discharge of part of the contents of the furnace through the aperture so created. The plaintiff gave evidence that he had seen such a discharge seven times in six years and the furnace foreman, Anderson, said he had seen such a discharge four or five times in thirteen years. There was no evidence of any person having previously suffered injury by reason of any such emission of burning or molten material. In the circumstances so described, to describe the risk of a slagger working in the vicinity of the furnace as an extreme risk of fearful consequences seems to us to be something of an exaggeration. There was some risk that a tuyere would burn out and allow the spraying from the furnace of burning or molten material and there is no doubt that to any person caught in such a spray the consequences would probably be fearful. Fearful consequences, however, may ensue from something less than an extreme risk. It seems to us, upon the evidence, that Anderson was accurate when he described the risk as both real and unusual.

[33]

The suggestion so expressed was, as we have said, made by counsel to the jury but it was not put to the furnace foreman, Anderson, or to any other witness. If the suggestion was that the cleaning and repairing of the channels could be confined to breaks, due to mishaps, in the continuous operation of the furnace, it would appear clearly enough to have been fanciful. Channels have to be cared for regularly after use. Mishaps occur both irregularly and rarely. It is hardly surprising, if that were the suggestion, that it was made to the jury and not to a witness. If, however, the suggestion was that pressure in the furnace should be reduced regularly to enable work to be done about the furnace, including the care of the channels, that should have been put to the furnace foreman, or to some other witness, as something that was feasible, to find out whether or not it was. Simply to assume such feasibility is to come to a conclusion of fact, not a matter of common sense, without evidence. It seems to us that Jacobs J.A. did carry the suggestion to its logical conclusion when he said [1] : The negligence in my view lay in a system which allowed the plaintiff to be in the vicinity at all when the furnace did that which it was occasionally prone to do, namely, to eject the burning slag over a widespread area. The operating of the furnace in these circumstances exposed the plaintiff to unreasonable risk of injury. If this be correct, any person working in the vicinity of the furnace, injured by the ejection of burning or molten material from the furnace, would be entitled to damages called damages for negligence. The case of such a person would not simply be one of res ipsa loquitur; it would be that negligence is proved by permitting the operation of the furnace with a workman in the vicinity, whatever his task and whatever other precautions were taken for his safety. Were this so, liability for negligence would, we consider, have been converted into absolute liability for operating a furnace. 1. [1972] 2 N.S.W.L.R. 592, at p. 602.

[40]

Jacobs J.A. referred to what he described as a "special class of case" [1] and was of opinion that the present case fell within that special class. On the first occasion on which his Honour used that expression, it appears from the context that he regarded the case as special simply because in his view the evidence showed that the respondent had been exposed to an "extreme risk" attended by "fearful consequences". Later in his Honour's reasons there appears to be involved in the special character of the class of case to which he refers a requirement that the employee is unaware of the existence or of the extent of the extreme risk, the reason for this requirement being that his lack of awareness and of acceptance of the risk prevents it from being properly regarded as an "inherent" risk of the employment. In my opinion it is erroneous to regard the matters to which his Honour's judgment refers as warranting the application to a case in which they are present of any legal principles different from those applicable to other cases in which the relevant duty of care is that which an employer owes to an employee, but in which those features are not present. In the present case, as in other cases in which an employee sues his employer for damages for injury caused by negligence, there was no issue as to the existence of the duty of care or as to its nature and content. The issue was whether or not it had been established that there was a breach of that duty which caused the accident in which the respondent suffered injury. There is no doubt that such matters of fact as the magnitude of the risk of an accident and the seriousness of the injury that may be expected to be suffered if an accident does occur may be taken into account in appropriate cases in deciding whether or not the employer has fulfilled his obligation to take reasonable care for the safety of his employees. So, also, in some cases, it may be of importance to consider whether an employee should have been warned of some particular risk, whether grave or not, attached to the task which he is directed to perform. But this does not mean that different principles are applied in such cases. It means that in deciding whether or not in a particular case a breach of duty has been established, all the facts which might be reasonably supposed to have a bearing upon what in the circumstances a reasonable man would do or refrain from doing ought to be considered.

[43]

In the present case, Moffitt J.A. considered that there was an alternative ground upon which it should be decided that there was evidence of negligence. This conclusion depended upon a view of the facts and of the inferences to be drawn from them which I am unable to share. The facts upon which his Honour relied were these. There was a leakage in no. 14 tuyere which had continued for two hours. The tuyere was replaced but as a result of the leakage a condition "productive of danger" was likely to have been created by reason of the cooling of material near the tuyere. This was a continuing danger. The end of the new tuyere might be burnt out, water would escape, and pressure from the furnace would cause an explosion of hot material through the opening. The foreman knew of the chance of these sequences occurring. The foreman adopted what he called a "normal safety precaution" by reducing, temporarily, the opening in the tuyere. The purpose of this was that the cold material would be undermined and removed. The inference was open that it had not been removed before the explosion occurred and that it was because of the continued existence of the danger created by the presence of the cold material that the explosion did occur. The foreman could not know whether the danger had been removed. Those being the facts which in his Honour's view could have been found, he based on them the following conclusions. Soon after the shift commenced a particular risk of a serious explosion existed, to the appellant's knowledge. The procedures adopted "provided at best a hope short of knowledge" that the danger would be in time removed, but it had not been removed, and it led to the explosion. Therefore the explosion did not occur without warning. The appellant had warning of the symptoms which might lead to it. But the appellant continued its operations and did nothing to protect the respondent but allowed him to continue to work in ignorance of the danger. This provided evidence of negligence.