Court of Appeal (WA)|2002-06-24|Before: Miller J, Wallwork J, Steytler J

Dhu v Total Corrosion Control Pty Ltd & Anor [2002] WASCA 173 (24 June 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DHU -v- TOTAL CORROSION CONTROL PTY LTD & ANOR [2002] WASCA 173

Negligence - Master and servant - Independent supplier of equipment - Duty of employer to provide safe equipment - Duty of supplier of equipment to ensure item fit for use by employee of employer - Regular maintenance and servicing of equipment by independent contractor - Whether any negligence on the part of employer, supplier of equipment and/or independent contractor

First Respondent (First Defendant) : Mr D W Williams

First Respondent (First Defendant) : McAuliffe Williams &

Second Respondent (Third Defendant) : Allens Arthur Robinson

Commonwealth of Australia v Introvigne (1982) 150 CLR 258

Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192

Devries v Australian National Railways Commission (1993) 177 CLR 472

Ingham v L Eastough & Son Pty Ltd, unreported; FCt SCt of WA; Library No 950451; 21 July 1995

Rosenberg v Percival [2001] HCA 18; (2001) 178 ALR 577

State Rail Authority of NSW v Earthline Constructions [1999] HCA 3; (1999) 160 ALR 588

1 WALLWORK J: I agree with the reasons for judgment and the conclusions of Miller J.

3 STEYTLER J: I have had the advantage of reading the reasons for decision of Miller J. I agree with them and with his Honour's conclusion that the appeal should be dismissed. There is nothing I wish to add.

4 MILLER J: This is an appeal from a judgment of Wisbey DCJ given in the District Court at Perth on 18 May 2001 dismissing the claim of the appellant (then plaintiff) against the first and second respondents (then first and third defendants respectively).

5 The appellant's action against the first and third respondents was one for damages for personal injury sustained in an industrial accident. The appellant was engaged by the first respondent as a polyurethane spray sealer. He had experience as a spray gun operator in the insulation division of Bains Harding Industries, and had first obtained work with the first respondent in or about September 1993. On 8 October 1994 the appellant, in company with a fellow employee named Alexander, was engaged in polyurethane spray sealing of structural joins in a wheat bin of the third defendant at Kulin. The appellant and Alexander were working from a platform on a cherry picker, which the second appellant had provided to the first respondent. Whilst standing in the basket cage on the platform and using spray guns connected by long hoses to a pump, the appellant suffered injury when he fell from a height of about 3-4 metres. The platform and basket detached from the hydraulic boom of the cherry picker. The detachment of the basket and platform was due to a fracture of a part described as a slew pivot post.

6 The appellant's statement of claim contended that the accident was caused by breach of duty of care and/or negligence on the part of the first respondent and/or the second respondent. The particulars of negligence alleged against the first and second respondents were common to each and were as follows:

"4.1 failing to pre-check the cherry picker to ensure that it was in a good working condition

4.2 failing to provide the Plaintiff with a cherry picker that was in good working condition

4.3 failing to ensure that the cherry picker that was provided to the Plaintiff was in good working condition

4.4 failing to subject the cherry picker to a major inspection involving a strip down and visual inspection of components and if necessary non-destructive testing thereof to guard against the possibility of failure of components due to fatigue cracking."

7 The cause of action against the first respondent was in negligence, but was based upon breach of duty on the part of the first respondent as employer of the appellant. The cause of action against the second respondent was also in negligence. It was pleaded that the second respondent had provided the cherry picker for use by the then second defendant (who is no longer in the proceedings) who had in turn provided it for the use of the first respondent. It was pleaded that the second respondent knew that the cherry picker was to be used for the job on which the appellant was engaged on the day in question. Although the second respondent was the occupier of the premises at which the accident occurred, no cause of action was brought against the second respondent for breach of occupier's duty.

8 The first respondent denied any breach of duty of care on its part and pleaded that the cherry picker had been provided by the second defendant (Jet Seal Pty Ltd) in circumstances in which it was reasonable for the first respondent to assume that it was in good working order, as it was an implied term of the contract between Jet Seal Pty Ltd and the first respondent that a cherry picker would be provided that was fit and suitable for the work to be performed by the first respondent's employees. There were third party proceedings between the first and second respondent.

9 The second respondent denied in its defence that it had been negligent and contended that if the appellant had suffered loss and damage, that loss and damage was caused by or contributed to by the appellant's own negligence. Two particulars of negligence were pleaded, they being that the appellant had failed to take any or any reasonable care for his own safety and had failed to ensure that the basket of the cherry picker in which he was working did not collide with or become caught on any part of the silo.

10 The learned trial Judge in his reasons reviewed the evidence which was called at trial and made very clear findings of fact. The first finding related to the nature and cause of the fracture of the slew pivot post. In this respect his Honour reviewed the evidence of a number of experts, some of whom expressed the view that there had been a pre-existing circumferential crack on the slew post which would not have been visible to the naked eye, but which caused failure on the day in question. Other experts were either of the view that there was no evidence of a pre-existing fatigue crack or there was no way of telling.

11 An important question at trial was what work had been carried out on the slew pivot post in the past. Leonard Alan Sowry, proprietor of Access and Allied Services, testified that his firm had been responsible for selling the unit to the second respondent in 1984 and had thereafter given it annual and later bi-annual inspections in accordance with Department of Occupational Health, Safety & Welfare requirements. The firm had also serviced and generally repaired the unit, the most recent repairs having been some 12 months prior to the accident, when a thorough overhaul of the machine had been done. This had included washing down the slew pivot post with petrol and visually inspecting it to confirm its integrity. It had then been regreased before a new basket had been fitted to the unit. The unit had been serviced as recently as 22 September 1994.

12 The key issue at trial was whether any repair work had actually been done on the slew pivot post in 1991. As to this, an invoice dated 9 December 1991 described work done on the unit to have included:

" 'basket damage; removed basket, removed slewing post and head. Delivered slewing post and head for template for new post. Picked up new slew post and fitted to unit'."

A question arose as to whether this meant that a new slew pivot post had been fabricated in 1991. Mr Sowry denied that this was the case and expressed the view that the documentation was erroneous and the reference to slew pivot post should have been a reference to basket support.

13 The learned trial Judge concluded that Mr Sowry was correct. His conclusion was expressed in these terms:

"Exhibit F ... indicates that the weld repairs were to the base area of the rotator assembly. It is clear that the control console is fitted to the rotator assembly - not to the slew post, and that suggests that Mr Sowry was in fact referring to the rotator assembly frame that fits over the slew post and not to the slew post itself when he noted that he had fitted the control console to the slew post. It would also seem unlikely that a template would be necessary or useful in fabricating a slew post, but might well be necessary to fabricate the mounting bracket on the rotator assembly."

14 After considering all of the evidence the learned trial Judge was unable to conclude what was the cause of the fracture of the slew pivot post. His Honour's conclusions were expressed in these terms:

"On a consideration of the whole of the evidence I am not persuaded that there was a pre-existing circumferential crack of the slew pivot post prior to the ultimate failure. I am sure that each of the lay witnesses were doing their best to accurately recall their impressions of the fracture surface of the slew pivot post, but were somewhat disadvantaged by the passage of time. The views of the experts were inferential and the conclusions of each of them necessarily suffered because they were obliged to make their assessments on the basis of the photographic evidence, due to the lack of opportunity to examine the fractured slew pivot post. As I have already indicated the photographic evidence was an unsatisfactory medium for the purpose of making an accurate assessment of the cause of the fracture. In the result I am not persuaded that the facts 'form a reasonable basis for a definite conclusion affirmatively drawn' as to the precise nature and cause of the fracture (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298). There is no preponderance of evidence pointing to a particular cause, making the identification of the cause speculative."

15 Having reached the conclusion that the appellant had failed to make out the case pleaded, his Honour went on to say:

"It probably matters little in a resolution of this controversy because the burden of the evidence is that if there was a pre-existing circumferential crack it was unlikely to have been detectable by visual inspection and its identification would have required non-destructive testing. The evidence demonstrated that the slew pivot post should have an infinite life, and it cannot therefore be said that there was a duty to carry out such testing."

16 Having concluded that for unidentified reasons the slew pivot post had fractured, his Honour turned to the question whether the fracture and resultant accident was attributable to a breach of duty on the part of either the first or second respondents. The conclusions reached were as follows:

"110 The breach of duty alleged against each of the defendants is that it failed to properly check and maintain the cherrypicker to ensure that it was in good working order; and in particular failed to subject it to a major inspection involving a strip down and visual inspection of components and if necessary non-destructive testing to guard against the possibility of failure of components due to fatigue cracking.

111 The third defendant as owner of the cherrypicker owed a duty simplicita [sic] to the plaintiff to take reasonable care to ensure that the cherrypicker was in good working order and safe for the purpose for which it was required. It discharged that duty by having the cherrypicker serviced annually by Access & Allied Services, a firm experienced in such matters. It has not been established that the visual inspection should or would have alerted the third defendant to the likelihood of a fracture of the slew pivot post occurring, nor does the evidence suggest that non-destructive testing should have been undertaken and/or would have revealed the potential for fracture. The undisputed evidence is that there was no prior history of fracturing of a slew pivot post, and the evidence of Mr Apgar, which was not contested, was that it should have an infinite life. Having regard to the age of the cherrypicker the evidence does not establish that non-destructive testing was necessary or appropriate.

112 The plaintiff has failed to identify fault on the part of the third defendant, and as was stated by Kirby J in Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; (1999) 200 CLR 121 at 169 'The tort of negligence is fundamentally concerned with fault: Donoghue v Stephenson (1932) AC 562 at 580. If that concern is forgotten, the law has lost its compass'.

113 The first defendant was the plaintiff's employer and required him in the course of his employment to use the cherrypicker provided maintained and served by the third defendant. The evidence does not suggest that the first defendant had any reason to suppose other than that the cherrypicker was in good order and condition, and it is axiomatic from my findings in respect of the third defendant, that it was entitled to that view.

116 Having regard to the fact that the cherrypicker was properly serviced and maintained by the third defendant, there is nothing in the evidence to suggest that the first defendant did not exercise reasonable care to avoid exposing the plaintiff to unnecessary risk of injury. There is nothing in the evidence to suggest that the fracture of the slew pivot post could have or should have been anticipated, or that it was incumbent on the first defendant to subject the cherrypicker to any further mechanical scrutiny than that which was regularly undertaken by the third defendant."

17 The learned trial Judge made a provisional assessment of damages, assessing the appellant's entitlement at $33,551.54. His Honour's conclusions were that the appellant had suffered soft tissue injuries to his cervical and thoracic region, together with bruises, abrasion and concussion. Those injuries were found to have disabled him for some months, resulting in him being unable to carry out his vocational duties from the date of the accident until February 1995, when he embarked upon a graded return to work. The learned trial Judge was satisfied that the appellant gradually returned to full duties and by March 1997 had wholly recovered from the effects of his disability.

18 His Honour reviewed the evidence of the various doctors who had treated the appellant and concluded that none had identified any objective evidence of incapacity. He was not satisfied on the evidence that any radiological changes in the thoracic spine were accident caused and considered that by April 2000 the appellant had made a total recovery from accident caused symptoms and had the capacity to return to his pre-accident employment. On this basis his Honour assessed loss of amenities at 12.5 per cent of a most extreme case and allowed $28,125 by way of general damages. Loss of earning capacity was allowed as total loss between the date of the accident and February 1995 and thereafter as partial loss until 14 March 1997.

19 The appellant appeals against the conclusions reached by the learned trial Judge on the issues of both liability and damages. In relation to liability, the grounds of appeal contend that the learned trial Judge was wrong in fact and in law in failing to determine, as a primary issue on the pleadings and on the evidence, the question whether the appellant had allowed the basket of the cherry picker to impact with a portion of the wheat bin, thereby causing the slew pivot post to fracture. This ground advances the contention that the learned trial Judge should have concluded that there was no such impact and that evidence of the witness Sowry, in relation to the question of whether the slew pivot post had been replaced by using a welding procedure in 1991, should therefore have been seen in a different light and (in effect) not accepted. It was further put that if Sowry or his subcontractor were negligent, neither the first respondent nor second respondent could escape liability by delegating responsibility for the repair work, having regard to the safety issues involved.

20 The ground of appeal in relation to the award of damages contends that the learned trial Judge erred in failing to make any award for past loss of earnings beyond 14 March 1997 and in failing to make an allowance for future loss of earning.

21 As to the first ground of appeal, the issue whether or not the basket of the cherry picker came into contact with the side of the silo arose out of a plea by the third respondent in which it was alleged there was negligence, or alternatively, contributory negligence on the part of the appellant in failing to ensure that the basket of the cherry picker did not collide with or become caught on any part of the silo.

22 There was in fact no evidence that the basket had come into contact with the side of the silo. The witness Sowry had testified that he arrived at Kulin on the day after the accident to inspect the damage to the cherry picker. He found the basket hanging from the cherry picker by electric cables. Upon inspection of damage, there appeared to be marks on the back of the basket which looked to him as if the basket had been in contact with the cross-members of the stays in the bin. When asked how he had concluded that the basket had hit something, Sowry replied that it was hard to see anything from the photographs taken of the unit, but there were signs of actual damage "dents or scrapes if you like" on the back of the basket. Cross-examination on the topic was limited. Sowry confirmed only that he saw markings on the back of the basket: "damage or markings". He said in cross-examination that he had a "theory" that the basket had suffered an impact which was sufficient to fracture the slew pivot post.

23 It seems to me that the evidence of Sowry on this point was only an expression of opinion and a tentative opinion at that. Sowry was no expert, although he had experience with cherry pickers of the type in question. He gave no real basis for the conclusion that he reached and the trial Judge appears to have paid no attention to it.

24 Rather, his Honour relied on the evidence of a number of qualified experts, who included William Jack Apgar, Chong Ngai Chew and Martin Eric Simms.

25 Mr Apgar is a forensic engineer with a master's degree in civil engineering. From magnification of photographs of the fracture faces, he formed the view that there was evidence of a circumferential crack, probably initiated by an improper weld procedure, there being a fillet weld around the base of the post-holding plate. He further considered that there was overwhelming evidence that the welding procedure omitted post-weld heat treatment. In essence, his conclusion was that bad welding had created a shrinkage crack and that in turn had produced the ultimate failure of the slew pivot post.

26 Dr Chew is a mechanical engineer with considerable experience in the fracture of steel and matters relating thereto. He expressed the view that it was not uncommon for a straight steel pin similar to the slew pivot post to fracture as a result of fatigue failure. He considered it was impossible to determine from photocopied photographs whether or not there had been a fatigue crack and he thought there were three hypotheses:

(1) a fatigue crack which had developed and grown over a period of time to the extent where the load carrying capacity of the post was reduced such that it would fracture due to overload;

(2) an external force applied to the basket causing the pin to break in the absence of a fatigue crack; and

(3) a fatigue crack which had not grown sufficiently to cause the post to fail under normal operating conditions, but which did so upon impact.

In his view it was impossible to decide which of the three was the most probable.

27 Mr Simms is a chartered consultant engineer. He also formed the view that it was impossible to make any informed judgment about the cause of the accident from the photographic evidence. He disputed the view of Mr Apgar in relation to fatigue cracking, expressing the view that the alleged fatigue points identified by Apgar were on the wrong side of the shaft for a fatigue failure. He considered the features identified by Apgar were features of "final failure rather than fatigue". Simms also said that if there had been a pre-existing circumferential crack of the slew pivot post it was unlikely to have been visible to the naked eye.

28 Based on the evidence of the experts, it seems to me that it was open for the learned trial Judge to conclude as he did that there was no proof on the balance of probabilities that a pre-existing circumferential crack of the slew pivot post had led to the ultimate fracture. It was also open to his Honour to conclude that if there had been a pre-existing circumferential crack, it was unlikely to have been detectable by visual inspection and its identification would have required non-destructive testing. His Honour was also correct that the evidence demonstrated that the slew pivot post should have an infinite life and there was therefore no duty to carry out such testing. Evidence as to the latter had been given by Mr Apgar.

29 Given that it was open to the learned trial Judge to conclude as he did that the appellant had failed to prove a particular cause of the ultimate failure of the slew pivot post, the dismissal of the appellant's action was inevitable. I am unable to see how it can be said that his Honour could or should have reached any other conclusion by reason of the fact that the credibility of the witness Sowry was damaged by the opinion he expressed about the basket striking the side of the silo. As I have pointed out, it was only a tentative opinion and nobody else supported it. The defendant pleaded it, but clearly failed to satisfy the learned trial Judge that this was the cause of the fracture of the slew pivot post. It is true that the learned trial Judge made no specific finding on the issue, but by inference his Honour accepted that this was only one of the hypotheses open as to the circumstances in which the slew pivot post had fractured.

30 I cannot see that Sowry's expression of opinion on that point impacted upon his evidence in relation to the repairs that were carried out on the cherry picker in 1991. Sowry's evidence about welding repairs to the slew pivot post in 1991 was unequivocal. He stated that no welding had been done on the slew pivot post. He was also of the view (after reflection) that the slew pivot post was the original slew pivot post and it had not been replaced. He explained that the invoice written for the repair work was incorrect and any reference to welding was a reference to welding on the basket support, not the slew pivot post. His Honour accepted this explanation and clearly he was entitled so to do. Further, his Honour was entitled to accept the evidence of Lowry on this point without accepting his opinion that the basket had struck the side of the silo and therebey caused the fracture of the slew pivot post. In my view, the appellant is unable to make out the ground of appeal on this point.

31 Once it is accepted that it was open to the learned trial Judge to conclude first that there was no preponderance of evidence pointing to a particular cause for the fracture of the slew pivot post and second, that even if there had been a pre-existing circumferential crack on the slew pivot post, it was unlikely to have been detected by visual inspection, the ground of appeal which contends that the respondents could not escape liability by "delegating responsibility for the repair work" falls away. In any event, there was simply no evidence that the person charged with the responsibility for repairing, maintaining and servicing the cherry picker had been negligent in any way. To the contrary, the evidence revealed that a slew pivot post should have an infinite life and there would be no requirement for inspection of it by non-destructive testing or otherwise. Any pre-existing circumferential crack of the slew pivot post (if it existed) would have been unlikely to have been visible to the naked eye.

32 It is unnecessary to deal in any detail with the question of the extent to which a person who has provided equipment for use by an employer is liable in negligence to the employer's employee in circumstances which the supplier has delegated to a responsible repairer the task of keeping the equipment in good order. However, a number of principles are clear.

33 The employer's common law duty of care to his employees is well established. In Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 692 - 670, Mason J said:

"It has been accepted that the content of the ordinary common law duty of care is a duty to exercise reasonable care (and skill) or to take reasonable steps to avoid risk of harm to a person to whom the duty is owed. The degree or standard of care required varies with the risk involved. Those who engage in inherently dangerous operations must take precautions not required of persons engaged in routine activities: Swinton v China Mutual Steam Navigation Co Ltd. This involves no departure from the standard of reasonable care for it predicates that the reasonable man will take more stringent precautions to avoid the risk of injury arising from dangerous operations.

If the employer's common law duty of care to his employees is no higher than the general duty to take reasonable care and skill for their safety, it imposes on him an obligation to take reasonable steps to provide adequate plant and equipment, a safe place of work and a safe system of work. If the duty or obligation of the employer requires no more than the exercise of reasonable care, it will often be satisfied by engaging a competent person to perform some service or work, particularly if the service or work calls for some skill or experience which the employer does not possess and cannot reasonably be expected to possess and the employer has no opportunity or capacity to inspect or check what the contractor does. It has been a reluctance to accept this result that has prompted judges to speak of the employer's duty as 'personal' or 'non-delegable' and to conclude that it cannot be satisfied by the appointment of a competent person to carry out the necessary task."

34 His Honour went on (at 685 - 688) to point out that outside the realm of master and servant, and landlord and tenant, the concept of personal duty has been applied to the common law duty of care owed by a hospital to its patient and by a school authority to its pupils. Likewise, an invitor's duty to his invitee is non-delegable in the sense that it is no answer that the invitor has engaged a competent independent contractor to remedy hidden defects. Mason J pointed out (at 687 - 688) that a special duty will be generated in certain cases where there is in the relationship between the parties an element which generates a special responsibility. In the context of employer and employee his Honour said:

"That such element exists in the relationship of employment is beyond serious challenge. The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences. Indeed, there is a stronger case for concluding that the employer's duty is non-delegable than there is for reaching the same conclusion in the case of the invitor. It is not immediately obvious that it is appropriate to impose liability on the occupier of a house for injury caused to an invitee by the negligence of an independent contractor, eg in making or repairing an electrical installation carelessly, when it is reasonable for the occupier to rely on the reputed competence of the contractor in a field in which the occupier has no expert knowledge. But this is by the way, for it is not an issue that needs to be decided in the present case."

Mason J pointed out (at 688) that an employer will be liable for the neglect of an independent contractor, not on a vicarious basis, but because the contractor's omission to adopt a safe system of work will be a breach of the employer's duty.

35 In Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 at 550 et seq, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ recognised that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and "more stringent" kind, namely a "duty to ensure that reasonable care is taken". Their Honours said (at 550 - 551):

"Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken. One of the classic statements of the scope of such a duty of care remains that of Lord Blackburn in Hughes v Percival:

'that duty went as far as to require [the defendant] to see that reasonable skill and care were exercised in those operations ... If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself ... but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled.'

In Kondis v State Transport Authority, in a judgment with which Deane J and Dawson J agreed, Mason J identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable in that sense: adjoining owners of land in relation to work threatening support or common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and (arguably), occupier and invitee. In most, though conceivably not all, of such categories of case, the common 'element in the relationship between the parties which generates [the] special responsibility or duty to see that care is taken' is that 'the person on whom [the duty] is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised'. It will be convenient to refer to that common element as 'the central element of control'. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person."

36 Whether in the present case either or both the first and second respondents could be said to have come within the category of case imposing a duty to ensure that reasonable care was taken in the repair and/or maintenance of the cherry picker it is unnecessary to determine. On the face of it, neither the first respondent nor the second respondent fall within the categories of the case referred to in Burnie Port Authority. The first respondent in this case certainly had a special responsibility in relation to the adoption of a safe system of work, but this was not a case involving a safe "system" of work. Rather, it was a case involving provision of safe equipment. The distinction is made clear by Kirby J in Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at par 101 et seq:

"101 Basic principles of liability: Before considering the maxim res ipsa loquitur, it is appropriate to state a number of general propositions, applicable to the present case, which I do not take to be in dispute. First, it is the duty of an employer at common law to take reasonable care to avoid exposing an employee to unnecessary risk of injury. That duty includes the provision of a safe system of work; a safe place of work; and proper plant, equipment and appliances. The duty is not delegable. It is personal to the employer."

37 Kirby J added (at [par 103 - 104]) the following observations relevant to this case:

"103 Thirdly, the duty remains that of reasonable care. It is not one of strict liability. Workers' compensation legislation affords basic protection upon proof of the happening of an injury to an employee in defined circumstances. But to recover damages, the added element of negligence or breach of a statutory duty sounding in damages must be shown. This requirement imports considerations of reasonable care which must be demonstrated to be wanting if a more substantial recompense, in the form of damages, is to be recovered at common law.

104 Fourthly, the burden of establishing a claim in negligence rests on the plaintiff throughout the proceedings. That burden requires the proof of a preponderance of evidence in favour of the plaintiff's case. This does not necessarily mean proof by direct evidence. The facts necessary to establish liability may be inferred from the proof of other facts. A plaintiff is not obliged to exclude all possibilities inconsistent with the defendant's liability. However, if at the end of the evidence the plaintiff has proved the negligence of someone but not identified the defendant as the person responsible (or has left it equally possible that some person other than the defendant was negligent or that some cause consistent with reasonable care brought about the plaintiff's damage) the claim must be dismissed."

38 Because in this case it was open to the learned trial Judge to conclude (1) that even if there was a pre-existing circumferential crack in the slew pivot post it was unlikely to have been detectable by visual inspection and (2) a slew pivot post should have an infinite life, there could be no question of any negligence on the part of the person responsible for the maintenance and repair of the cherry picker. The extent therefore to which the duty of care cast upon the first and second respondents was non-delegable need not be further explored.

39 At the hearing of the appeal, counsel for the appellant argued that if the appeal against the learned trial Judge's conclusion on the issue of liability succeeded, there should be a retrial. No attempt was made to argue that the award of damages made by the learned trial Judge was inadequate. Whilst it is perhaps unnecessary to deal with the second ground of appeal, I would only say that the learned trial Judge comprehensively reviewed all of the relevant lay and medical evidence in this area. It was open to him to conclude that the appellant had suffered only soft tissue injuries to the cervical and thoracic region, together with bruises, abrasions and concussion; that he was totally disabled from work only between the period 8 October 1994 and February 1995; that he was partially incapacitated between February 1995 and 14 March 1997; and from 14 March 1997 he had suffered no reduction in earning capacity referable to the accident. The conclusions were hard on the appellant, but in my view open on the evidence. There was ample medical evidence to support these conclusions and the second ground of appeal cannot be made out.

40 I would dismiss the appellant's appeal on both liability and damages.

Dhu v Total Corrosion Control Pty Ltd & Anor [2002] WASCA 173

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Judgment (73 paragraphs)

Dhu v Total Corrosion Control Pty Ltd & Anor [2002] WASCA 173 (24 June 2002)

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Cases Cited (10)