Coastwide Fabrication & Erection Pty Ltd v Honeysett

Coastwide Fabrication & Erection Pty Ltd v Honeysett - [2009] NSWCA 134 - NSWCA 2009 case summary — Zoe

[16]

The accident 6 Blue Circle's operations at Maldon either comprised or included a plant for the manufacture of cement powder and associated products. In October 2003, part of that plant, known as kiln six, was shut down for repair work. Kiln six was used in the production of cement powder. It was important to Blue Circle that the repairs be completed as quickly as possible, so that the kiln could resume operations. 7 Coastwide had experience in "shutdown" operations. Blue Circle retained Coastwide to carry out the shutdown of kiln six. Coastwide used both its own employees and two casual employees, including Mr Honeysett, whose services were provided to it by Rhino. 8 On the day in question, Mr Honeysett and a number of other workers whom Coastwide was using on the job travelled to the site by bus. They arrived at about 7:00 am. There was a "toolbox meeting", at which they were instructed on the work to be undertaken. Mr Honeysett and four or five other workers went to a basement area beneath kiln six. 9 Located within that basement was a number of pipes. The pipes ranged from about two inches to about four inches in diameter. They, or some of them, were used for the transportation of cement powder. Some of the pipes had to be replaced. The first task to be undertaken was the removal of the pipes that had to be replaced. 10 The pipes had been constructed in sections with a flange at each end. They were joined together by bolting the flanges together. To remove the pipes, it was necessary to remove the bolts from the flanges. Mr Honeysett observed that most of the bolts were corroded, which made it difficult to remove them (more accurately, made it difficult to unscrew the nuts by which the bolts were fastened in place, joining together the flanges of adjacent lengths of pipe). Mr Honeysett said that the process of removal required the use of tools including a hammer, a "jimmy bar" or pinch bar, and spanners. 11 There were a number of different organisations, and a number of different trades, at Blue Circle's plant on the day in question. Blue Circle held daily meetings, at which representatives of those working on site would be made aware of what was to happen during the day or on the following day. It is clear that Blue Circle undertook the responsibility of coordinating the work of the various organisations and trades. 12 On 20 October 2003 (the day before Mr Honeysett's accident), Mr Nolan, a project superintendent employed by Blue Circle, held such a meeting. He said that it was attended by representatives of the various contractors and by Blue Circle's own personnel. One of those who attended was Mr Burke, a boilermaker by trade, who was employed by Coastwide as site supervisor. 13 The trial judge found that the effect of Mr Nolan's evidence (in particular, his evidence interpreting his note of the meeting of 20 October 2003) was that those who attended the meeting were told that there would be a power outage the following day, at about 8:30 am. Mr J E Maconachie of Queens Counsel, who appeared with Mr J B Turnbull of counsel for Coastwide, attacked that finding. However, for reasons that I give at [19] to [27] below, it was a finding that was open to the trial judge on the evidence. 14 The men who were working in the basement under kiln six on 21 October 2003 were informed that there was to be a power outage that day. They were not, however, informed of the time. It would have been important for them to know this, because there was no natural light in the basement. 15 The power went off at about 9:00 am on 21 October 2003. It caused a blackout in the basement below kiln 6. At that time, Mr Honeysett was attempting to remove a bolt from the flanges connecting two lengths of pipe. He used a spanner to shift the nut by which the bolt was held in place. The nut was rusted, or in some other way frozen onto the bolt, and difficult to move. Mr Honeysett had to apply considerable force to the spanner. He said that "precisely on the same time that we had an electrical blackout, the nut cracked and I literally fell against the pipe work and the spanner slipped out of my hand". It was common ground that, when Mr Honeysett said "the nut cracked", he did not mean that it broke, but that whatever was locking it in place was overcome, so that it commenced to move. 16 The trial judge concluded "that when [Mr Honeysett] fell, he sustained an injury to his right shoulder and neck, including a small disc protrusion C6/7 and that this has been the cause of him continuing to have symptoms that have interfered with his capacity to perform his duties as a boilermaker". Those findings were open to the trial judge on the evidence. No one submitted otherwise. 17 Mr Honeysett's case was that the unexpected blackout caused him to become "completely disoriented [sic]", and that this caused or contributed to his falling against the pipe work. When asked what was the connection between the blackout and his falling against the pipe work, he said "I was literally in the dark, I didn't know what was going on".

[18]

Switching CS3000.08:30. 20 Mr Nolan said that the "cooler MCC" was a motor control centre that, he thought, controlled any drive in the cooler area. He said that the "CS3000" was a "PLC" or "Program Logic Control": some form of control system. It is apparent from Mr Nolan's cross-examination that he was not closely acquainted with the details of the relevant electrical systems, and that his understanding had been derived from speaking to people whom he thought did understand it: "our electrical people". 21 Mr Maconachie submitted that the reference to "08:30" applied to the "switching CS3000" and not to the "power outage". There was some support for this in Mr Nolan's cross-examination. He was asked whether the reference to "switching CS3000" had anything to do with the power outage, or was something separate. He replied "no, it's something, it looks like something separate". If the cross-examiner had stopped there, Mr Maconachie's submission would have had considerable force. 22 However, when questioned further on this topic, Mr Nolan said "… but all that would have been done at the same time. It's part of that, I believe it's part of that isolation". 23 A little later, when asked whether it was possible that the reference to "08:30" did not refer to the time of the power outage, Mr Nolan replied "no, I believe that it refers to the time the power would have been out". 24 As I have said, Mr Burke of Coastwide attended the meeting on 20 October 2003. He said that he could not recall "for sure" anything that was said at the meeting; he had made notes, but those notes had been lost. However, Mr Burke said, if he had been told that there was to be a power outage the following day, he would have passed that information on to the relevant employees of Coastwide; likewise, if he had been told of the time of the outage. 25 Another employee of Coastwide, Mr Jack, was employed on the Blue Circle shutdown as a leading hand. Mr Jack had no recollection of having been told by Mr Burke on 20 or 21 October 2003 that there would be a power outage on the latter date. Nor did he have any recollection of telling his men (including Mr Honeysett) at the toolbox meeting of 21 October 2003 that there would be a power outage later that day. However, Mr Honeysett said that Mr Jack did tell the meeting that morning that there would be a power outage later that day, but that he (Mr Jack) had no idea when that would occur. 26 The trial judge accepted Mr Honeysett as a truthful witness. He was less impressed with Mr Jack, and said that to the extent that there was a conflict between Mr Jack and Mr Honeysett, he preferred the evidence of Mr Honeysett. Mr Maconachie did not submit that the trial judge thereby erred. 27 On the evidence that I have summarised, it was open to the trial judge to conclude that those who attended the meeting of 20 October 2003 (including Mr Burke) were informed that there would be a power outage the next day at about 8:30 am. That is the better view of Mr Nolan's note, once it is accepted that "switching CS3000" refers to a part of the electrical work, for the purposes of which the power outage was necessary. It was a matter for the trial judge as to whether he accepted Mr Nolan's explanation of this (based as it was on information obtained from others). It having been open to the trial judge to accept and rely on that evidence, it cannot be said that he erred in doing so. 28 Even without Mr Nolan's explanation, the format of the note itself suggests that all the matters appearing under the heading "ELECTRICAL ISOLATION" were connected. Reading the relevant entry as a whole, and even without an understanding of the acronyms within it, it clearly refers to a group of activities that required electrical power to be disconnected, and that were programmed to commence at 8:30 am. It is artificial to say that the reference to "08:30" was intended to apply to one aspect or part only of that group of activities. 29 However, Mr Maconachie submitted, there was another piece of evidence that undermined the conclusion of the trial judge. Mr Honeysett said that of the five or six people in the basement on the morning in question, there were "a couple" who had not been on the bus that morning. Mr Honeysett said also that when the lights went out in the basement, everyone who was there expressed surprise. Mr Maconachie submitted that this evidence showed that people other than Coastwide's employees (or casual workers hired out to Coastwide) had not been informed of the timing of the black out. 30 The difficulty with this submission is that it does not follow, from the fact that some of the people in the basement had not been on the bus that transported Mr Honeysett and others to the site early in the morning on 21 October 2003, that they were not employed by or otherwise responsible to Coastwide. It was not shown that there had been only one busload of workers taken to the Blue Circle plant that morning. On the contrary, Mr Jack said that the practice, in connection with the Blue Circle plant shutdown, was that the workers would "normally meet in our yard of a morning and then… board minibuses, normal buses or company vehicles and travel to the job site". If, as Mr Jack's use of the plural suggests, there was more than one vehicle used to transport Coastwide's workers, Mr Honeysett's evidence that some of the people in the basement had not travelled on the particular bus that he had boarded would not mean that those people were working for someone other than Coastwide. 31 The trial judge found that Mr Honeysett's accident took place before 9:00 am. He said (reasons, para 23): "There is no doubt that the accident occurred before 9:00am on twenty-first, as there is a record of the plaintiff being treated before 9:00am." 32 Mr Maconachie attacked that finding. His attack was well-founded. There are two records relating to the accident. One is a "first aid room register of injury" maintained by Blue Circle. That refers to the time of injury as being "09.00" and to the time of "report / treatment" as "09.40". It describes that accident as having occurred in the following fashion: "While undoing bolts to remove valve, spanner slipped off bolt when lights went out in tunnell [sic], causing jarring of neck." 33 The other record was Coastwide's "accident investigation report", also dated 21 October 2003. It too states the time of the accident as 9:00 am. It gives the following account of the accident: "Undoing bolts on valve when a blackout occurred and slipped off bolt head… [h]e was undoing bolt when light went out missing nut with spanner and wrenched forward with shock being disorientated by darkness… causing injury to his neck." 34 Mr Honeysett had signed the first aid record. He said that it had been filled out before he signed it, but did not suggest that it was inaccurate. 35 No one was able to identify the record to which the trial judge referred, and the records that were in evidence are inconsistent both with his finding as to the timing of the accident and with his finding as to the timing of treatment. However, I do not regard this error in his Honour's reasons as undermining the conclusion to which I have referred at [13] above. 36 Mr Maconachie referred also to Mr Honeysett's evidence as to the time of the accident. In his evidence in chief, Mr Honeysett said that the accident happened "between 9:30 and 10:00". In cross-examination, when shown the first aid record, Mr Honeysett agreed that the accident could have happened at about 9:00 am. 37 Mr Maconachie relied on this evidence - specifically, the evidence that the accident happened at about 9:00 am - to support the submission that Coastwide did not know when the blackout was to occur. 38 I do not accept that submission. The evidence is equally consistent with the proposition that Mr Burke did not pass onto Mr Jack the planned time of the outage, or that Mr Jack did not pass it on to the workmen. It can be inferred, from the fact that Coastwide's men were working in the basement under kiln six when the power outage occurred, that they had not been told that the outage was planned for 8:30 am. That is consistent with Mr Honeysett's evidence that Mr Jack told them of the planned outage, but said that he did not know the time.

[20]

(2) Mr Jack, having been told by Mr Burke, did not tell the men working in the basement beneath kiln six. 40 On either approach, Coastwide breached its duty of care to those men. In my view, the trial judge was correct so to conclude. 41 Mr Maconachie submitted also that Mr Honeysett had not proved breach of duty, because he had not proved that there were reasonably practicable means of obviating the risk that someone would be injured if the lights in the basement (which, I repeat, had no natural light) went out suddenly and unexpectedly whilst Coastwide's men were working there. 42 Certainly, there was no evidence, either from the parties' employees or from any independent expert, as to what a prudent employer in Coastwide's position should do when informed that there would be a power outage. However, I do not agree that it was necessary for such evidence to have been given. Coastwide's crew in the basement were performing heavy manual labour, involving the application of substantial hand tools to obstinate pieces of piping. Common sense suggests that a prudent employer in Coastwide's position, knowing that there was to be a power outage at about 8:30 am, would tell its men of that and take steps to ensure that they ceased work shortly before 8:30 am. 43 Mr Maconachie submitted that there was no evidence of the likely duration of the outage. He submitted that it would not have been reasonable for a contractor in Coastwide's position, knowing that it was imperative, from a commercial perspective, for the shutdown to be as short as possible, to cease work at 8:30 and then to wait until the outage occurred and power had been restored before resuming work. It was absurd, he submitted, to say that "[Coastwide] and its work force should down tools and wait for a blackout". I do not see why this is so. On the contrary, I think it would have been, if not absurd at least dangerous, for Coastwide to insist that its men keep working until the lights went out. 44 No doubt, if the outage did not occur when planned or shortly thereafter, a contractor in Coastwide's position might make inquiry as to when it was likely to occur, and its likely duration. But that would be for the purpose of ascertaining whether it was safe for the workers to re-enter the basement. As Mr Maconachie pointed out, there was evidence that the contractors on site could communicate with Blue Circle's project director Mr Nolan through two-way radios.

[43]

(3) Mr Honeysett's evidence (again, unchallenged in cross-examination) that he had performed a similar operation on a number of previous occasions, when the lights had not gone out; and that he had not become unbalanced, or fallen, and injured himself when the nut "cracked". 57 Mr Little submitted that, against that background, it was not merely coincidental that the accident happened at the precise (or "pretty precise") time of commencement of the blackout. 58 By s 5E of the Civil Liability Act 2002, when the question of liability for negligence is to be determined, "the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation". The concept of causation is explained in s 5D. One element is "factual causation": a determination "that the negligence was a necessary condition of the occurrence of the harm". 59 For the reasons that I gave in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (in a judgment with which McColl and Bell JJA agreed), the principles embodied in s 5D of the Civil Liability Act accord with the common law concept of causation: a point earlier made, as I recorded, by Ipp JA in Ruddock v Taylor (2003) 58 NSWLR 269 at 286 [89]. 60 Thus, as Ipp JA pointed in Flounders v Millar [2007] NSWCA 238 at [35], a plaintiff who relies on circumstantial evidence to prove causation must show "that the circumstances raise the more probable inference in favour of what is alleged". It is not sufficient that the circumstances "give rise to conflicting inferences of an equal degree of probability or plausibility" or that the choice between conflicting inferences is no more "than a matter of conjecture". To some extent, this is a circumstantial case. The court is being asked to draw, from the circumstances to which I have referred, an inference of a causal relationship between the blackout and the accident. Mr Honeysett's evidence of the occurrence of the accident does not, of itself, conclude in his favour the question of causation. 61 In dealing with the question of causation, it is necessary to bear in mind the distinction between inference and conjecture. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275 [84], "[c]haracterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists". 62 On the same topic, Lord Macmillan said, in Jones v Great Western Railway Co (1930) 144 LT 194 at 202, that although it was often difficult to find the dividing line between conjecture and inference, there was a clear distinction between them. His Lordship said that a conjecture, even though plausible, is no more than a guess, whereas an inference is a deduction from the evidence. Thus, his Lordship said, if the deduction were reasonable, the inference "may have the validity of legal proof". His Lordship concluded by saying that "[t]he attribution of an occurrence to a cause is… always a matter of inference". 63 Lord Wright put the matter somewhat differently in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169 - 170. His Lordship said, in substance, that there could be no inference unless there were objective facts from which the inference could be drawn; and if there were no such objective facts then inference fails "and what is left is mere speculation or conjecture". 64 Finally, before I return to the facts, I note that the process of inference may involve an intuitive element that is not susceptible to detailed explication: see Hayne J in Chappel v Hart (1998) 195 CLR 232 at 290 [148]; and Spigelman CJ in Seltsam at 268 [30]. 65 In this case, the question of causation is finely balanced; and a resolution of it is not aided by a consideration of the scanty reasons given by the trial judge. His Honour did no more than say that:

[46]

(3) "The plaintiff did slip and injure his shoulder and neck… when he became disorientated when the lights went out as he was working in the shutdown of the area at the plant at Berrima to which he had been allocated" (para 17). 66 His Honour's ultimate conclusion, at para 17, follows his reference to Mr Honeysett's evidence that I have set out above, and the histories given by him to medical practitioners and others (which I have also set out above and which, as I have noted, his Honour regarded as "relatively consistent"). It is also clear that his Honour's conclusion relied on his view, expressed at para 19, that Mr Honeysett was "a truthful witness". 67 His Honour did not refer to the first aid report or the accident investigation report. However, in each of those documents (one of which was authenticated by Mr Honeysett's signature, and the other of which, as a matter of inference, reflects an account given either by Mr Honeysett or by a nominated witness, Mr Bridges) the point is made, in one case by inference and in the other expressly, that there was some relationship between the blackout and the accident. 68 It is reasonably clear that the accident occurred because Mr Honeysett lost his balance when the nut cracked. He did not in terms say so, but it is an available and commonsense inference from his evidence. He was applying considerable force to the spanner in an attempt to unlock the nut. The nut resisted for a while, and then yielded. The resistance that had been opposing him was thereby removed or diminished. It is not surprising, in those circumstances, that he would become unbalanced and move forward. That is the logical understanding of his evidence that "the nut cracked and I literally fell against the pipe work…". 69 It is clear that it was the fall against the pipe work that caused Mr Honeysett's injuries. The question is, therefore, whether the simultaneous occurrence of the blackout with the cracking of the nut materially contributed to that fall. Or was it no more than the temporal coincidence of two, causally unrelated, events? 70 For Mr Honeysett to have fallen forward, against the pipe work, the diminution in the opposing resistance must have been both sudden and substantial. That is to say, when the nut cracked, the bond caused by the corrosion or whatever it was that had caused the nut to bind on the bolt must have given way completely. If the nut had continued to offer substantial resistance, it is unlikely that Mr Honeysett would have lost his balance and unlikely that the spanner would have slipped off the nut or out of his hand. (I refer to these alternative explanations of what was meant by "slipping" not to suggest that one or other account is unreliable, but simply to accommodate the various accounts given.) 71 If, as I think is likely, there had been a sudden and substantial diminution in the resistance opposing Mr Honeysett's efforts, the loss of balance would have occurred quickly; likewise, according to ordinary human experience, the fall against the pipe. 72 It is also likely that Mr Honeysett had been standing close to the pipe when he was trying to undo the nut. He was seeking to apply maximum force (although using only his right hand) to the spanner. Human experience suggests that this would have required him to sand alongside the end of the spanner, thereby maximising both the leverage effect obtained by its length and the power that he could apply to his end of that lever. Unfortunately, the evidence does not indicate how long the spanner was; nor was there any investigation of the actual distance between Mr Honeysett and the pipe in question at the time he was trying to undo the nut. 73 Mr Honeysett said that when he attempted to remove the bolt, "[I]t would've been very close to the middle of my chest… above waist…". The passage of his evidence I chief from which I have taken that is as follows (Black 56R -57D): Q. So you're wanting to release the nut from the bolt? A. Yes.

[52]

Q. And was it difficult to get the nut to move? A. Yes. 74 That evidence is I think consistent with the proposition that Mr Honeysett had been standing close to the pipe when he was trying to undo the nut. 75 In those circumstances, is there any room for the coincident blackout to have contributed materially to the accident? Or was it no more than coincident? 76 I accept that, as Mr Honeysett said, the effect of the blackout was to disorientate him. That is consistent with ordinary human experience. I accept further that the ordinary consequences of disorientation may include some loss of balance. 77 The accident occurred when Mr Honeysett lost his balance and fell against the pipework. It is within everyday human experience that a person, standing in a confined space, who is plunged unexpectedly and without warning into total darkness will be disorientated, and may stumble. Equally, it is everyday human experience that a person who is pushing against substantial resistance may lose balance and stumble if that resistance is suddenly removed. 78 On that basis, I think, it is legitimate to infer that there were two causes at work when Mr Honeysett lost his balance and fell against the pipework. One was the sudden cracking of the nut. The other was the disorientation produced by the blackout. It is also legitimate to infer that each of those contributed in a material way to the loss of balance and fall, and thus to the injuries sustained by Mr Honeysett. That, I think, is what Mr Honeysett was trying to say in both his oral evidence and the account recorded in Coastwide's accident investigation form (see at [33] above). 79 Those considerations suggest that there was more than coincidence at work. That proposition is supported by the matters of history to which I have referred. Mr Honeysett had undertaken a similar operation on a number of previous occasions, when there had been no loss of vision at the same time as the nut cracked, and had not lost his balance or fallen. Indeed, his evidence was that he had removed similar nuts, using a similar spanner, in the basement that very morning without falling (see at [48] above). 80 If the lights had remained on, so that Mr Honeysett could see what was happening, he might have had some ability to attempt to avert, or at least diminish the severity of, the impact. For example, he could have put out his left hand to check his fall. However, disorientated by darkness, and not being able to see what was happening, was unable to do so. 81 In my view, when the evidence - sparse as it is - is considered as a whole, it speaks against the contemporaneous occurrence of the two events being merely coincidence, and in favour of a causal connection between them. 82 Finally, in this context, I note that neither Coastwide nor Blue Circle challenged Mr Honeysett's evidence of the causal relationship between the blackout and the accident. Nor did they challenge the accounts given in the accident investigation report or to the various doctors. (As to the latter, it may be noted that the reports were admitted without objection and without any restriction under s 136 of the Evidence Act 1995. It was open to the trial judge to draw on those histories as he did, to the extent that they assisted in the determination of the question of causation.) 83 Thus, although the question is finely balanced, I think that the evidence was sufficient to justify the conclusion of the trial judge that the power outage - more accurately, the consequent blackout - did materially contribute to Mr Honeysett's accident. 84 Accordingly, I conclude, Coastwide's challenge to the finding of causation fails.

[57]

The first period 93 Mr Honeysett was unemployed during the first period. The trial judge found that, but for the injury, Mr Honeysett would have continued to work for "his employer" - presumably, Rhino. The trial judge allowed wage loss at $1,200.00 net per week. 94 The trial judge gave no reasons for selecting the figure of $1,200.00 per week, and it was not supported by any evidence. Mr Little accepted that he could not support it. 95 Mr Maconachie submitted that the appropriate yardstick for calculation of past economic loss was Mr Honeysett's average net weekly earnings for the year ended 30 June 2003, as appearing from his income tax return for that year: $678.00. Mr Little submitted that the appropriate yardstick was $1,050.00 per week: the net weekly amount paid to Mr Honeysett immediately prior to the accident. 96 The trial judge found that Mr Honeysett "was a capable worker with transferable skills of significance" (reasons, para 35) and that, even after the accident, "he was capable of working very hard doing heavy work" (para 51). There was evidence (including from Mr Burke of Coastwide) that qualified, capable and willing boilermakers, such as Mr Honeysett had been prior to the accident, were always in demand in the years following the accident: particularly given competition for such tradesmen from the resource industries in Queensland and Western Australia. 97 On the evidence, I think that the appropriate yardstick for assessment of past economic loss is the amount of $1,050.00 net per week. That was the amount that Mr Honeysett had earned immediately prior to the accident. There was no suggestion that it was exceptional or aberrant. Use of the lower figure for which Mr Maconachie contended, derived from earnings more remote from the date of the accident, would not give due recognition to the evidence that, in the months and years following the accident, workers of Mr Honeysett's calibre and with his qualifications were in demand. 98 It follows that the trial judge's assessment of $100,000.00 for the first period should be set aside, and for it there should be substituted the figure of $88,200.00 (84 weeks at $1,050.00 net per week).

At a glance

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Judgment (74 paragraphs)

Parties

Cases Cited (5)