KASUPENE v AJAX FOUNDRY PTY LIMITED

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

Bright v Sampson & Duncan Enterprise Pty Ltd (1985) 1 NSWLR 346 Chappel v Hart (1998) 195 CLR 232 CASES CITED: Hamilton v Nuroof Pty Ltd (WA) (1956) 96 CLR 19 Jones v Dunkel (1958) 101 CLR 298 Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121

PARTIES: Morgan Kasupene (Appl) Ajax Foundry Pty Ltd (Resp)

COUNSEL: M Neil QC/R I Goodridge (Appl) J Turnbull (Resp)

SOLICITORS: Firths - The Compensation Lawyers (Appl) Holman Webb Lawyers (Resp)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40691/05 DC 4714/04

BRYSON JA McCLELLAN CJ at CL HOEBEN J

FRIDAY 10 NOVEMBER 2006 KASUPENE v AJAX FOUNDRY PTY LIMITED Judgment 1 BRYSON JA: I agree with McClellan CJ at CL. 2 McCLELLAN CJ at CL: The appellant was injured on 12 November 2001 when a heavy tray which was being lifted by an overhead crane came down on his right foot. He was employed by a labour hire company, Hussonee Pty Ltd and had been assigned to work at Silverwater in the business owned by the respondent. The appellant sued the respondent and the matter was heard in the District Court. The trial judge entered a verdict for the respondent. The appellant appeals that decision. 3 Both because the evidence did not indicate how the accident occurred and because there were reasonable possibilities that it occurred without negligence by the respondent, the trial judge determined that the appellant's case must fail.

The appellant's case 4 At the time of the accident the appellant was working on a conveyor line. His job was to collect moulded brake drums off the line, knock off the extra material around the brake drums, known as slag, and place the brake drums back onto the conveyor belt. The conveyor then carried the product to a metal tray where it was collected. 5 When the tray had about fifty pieces on it, it was removed by a crane. The crane was connected to the tray by means of two chains and hooks. The hooks went into lifting lugs on the corners of the tray. The crane was apparently operated by the use of a hand held remote device. 6 The appellant gave evidence that he had seen a person known as Sam Mai operating the crane. He went to assist him and hooked a chain onto one of the lugs. He then proceeded to walk away but, as he did, he heard a crash and the tray fell onto his foot. He had no warning that the tray was about to fall. 7 The appellant had no idea why the tray fell on his foot. His case relied upon the trial judge drawing an inference from the facts presented that the appellant's injuries were caused by some negligence of the defendant or its employees for whom it was responsible. His trial counsel submitted that because the appellant had proved that he was struck by the falling tray, which should not ordinarily have occurred, without negligence, an evidentiary onus fell upon the respondent to prove that the accident had occurred without its negligence. 8 Before any evidence was called at the trial there was a discussion between counsel and his Honour as to the basis upon which the appellant put his case. That discussion included a reference to the consideration which the parties had given to these matters before the trial. Counsel for the appellant made plain that he did not intend to allege that there was a mechanical defect, such as a defective lug on the tray, which had caused the accident. This apparently satisfied a concern of the respondent's counsel that he might be caught by surprise and be unable to effectively respond to any allegation that a mechanical defect had caused the accident. Because of the prior discussions between the parties the respondent had not investigated whether the tray or crane were defective. His Honour indicated that if such an allegation was ultimately made the respondent would be allowed an adjournment so that it could be investigated and the respondent given an opportunity to respond to it. 9 It would seem that at this point counsel for the appellant at the trial concluded that because the respondent was not going to bring evidence that the accident was the result of a mechanical defect it had been agreed between the parties that the crane and the tray were not defective and the trial would proceed on that basis. If that was his belief he was clearly mistaken. Neither the correspondence between the parties nor the discussions with the trial judge revealed such an agreement. The only agreement was that because the appellant did not intend to seek to prove that there was a mechanical failure the respondent would not be required to seek to bring evidence to rebut such an allegation. 10 As it happened the appellant's evidence was effectively confined to proving that the tray fell and struck him on the foot. He called no evidence to explain why this may have occurred, did not seek to prove there was an unsafe system of work and did not call evidence which would enable other rational explanations for the accident, such as latent mechanical failure of the crane, a failure of the lugs or chains to be excluded. The appellant was content to confine its case in the belief that, having proved that the accident occurred, the respondent must prove that it occurred without negligence.

The decision of the trial judge 11 A major issue at the trial was whether the crane was being operated by the appellant or Mr Sam Mai. Mr Mai did not give evidence. His Honour found that Sam Mai was operating the crane. 12 The trial judge found that there were several possibilities as to how the accident may have occurred, some of which would have involved negligence on the part of the respondent and some not. The possibilities which did not involve negligence included a latent mechanical defect in the crane, a failure of the electrical system or some kind of power failure, a failure of the lugs at the corners of the tray or a failure by the appellant to properly attach his chains to the tray. 13 The trial judge did not make a finding that the case was one where the accident would not ordinarily have occurred without negligence on the part of the respondent: see Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121. After giving consideration to Hamilton v Nuroof Pty Ltd (WA) (1956) 96 CLR 19 and to Chappel v Hart (1998) 195 CLR 232 his Honour concluded that "on the question of negligence, the onus remains on the plaintiff." His Honour said that "a plaintiff does not have to prove the precise manner in which an accident occurred. If an inference can be drawn from the proved facts that negligence must have been involved, the plaintiff will succeed. If such an inference is not permissible, he must fail." 14 Later his Honour said: "It seems to me that it is clear, and always has been clear, that the plaintiff bears the onus of proof of establishing negligence. The evidentiary onus might shift on the question of causation, in certain circumstances. In this particular case, there are several possibilities as to how this accident occurred - some would involve negligence on the part of the defendant; others, no negligence at all. It may be, for example, that there was a latent defect in the system being operated by Sam Mai. There may have been a failure of the electrical system, or some kind of power failure. This was not a non-mechanical situation as in Hamilton v Nuroof, but a system of work involving a mechanical device. Nobody knows how this accident occurred. The operator with the control of the mechanism may have made a mistake by pushing a button the wrong way. The operator may have been untrained. We do not know. There is no evidence as to training, or instruction, or supervision. There is no evidence as to what caused this accident and there is insufficient evidence from which to draw, it seems to me any inference. The simple facts were as stated; that Sam was operating the remote, and the plaintiff was giving him a hand; that Sam hooked his end onto the tray, and the plaintiff hooked his end; that the plaintiff went to walk away; he heard a crash, and the tray fell on his foot. It seems to me that more has to be established to bring into play the maximum res ipsa locquitor, since in this particular case, the occurrence may have occurred without negligence at all. One does not know."

The appellant's submissions 15 In his submissions in this appeal the appellant again conceded that he did not know why the tray dropped on his foot. However, it was submitted that there are only two non-fanciful possibilities.

(a) The first possibility was that Mr Sam Mai, the crane controller, negligently or deliberately caused the tray to come down on the appellant's foot;

(b) The other possibility was the equipment being operated by Mr Mai failed and that caused a tray to come down on the appellant's foot. 16 The appellant emphasised the negotiations before trial and the agreement between the parties that the appellant would not plead a failure to adequately repair or maintain or other mechanical failure of the equipment. It was submitted that this meant that there would be no suggestion made by the respondent that the accident was caused by the mechanical failure of the equipment. 17 Accordingly, it was submitted that in the absence of a suggestion of the tray coming down by reason of any malfunction of the equipment and it having been proved that Mr Mai was operating the crane, there was an irresistible inference that the appellant's injuries were caused by the negligence of Mr Mai and the respondent. It was submitted that when his Honour said "in this particular case, there are several possibilities as to how the accident occurred - some would involve negligence on the part of the defendant; others, no negligence at all. It may be, for example that there was a latent defect in the system being operated by Mr Sam Mai. There may have been a failure of the electrical system or some kind of power failure … ," his Honour engaged in impermissible speculation. It was submitted that in the absence of the respondent pleading mechanical failure, the only rational explanation for the accident is negligence in the operator of the crane. 18 It was further submitted that before the respondent could submit that mechanical failure may have caused the accident it was required by Part 14 Rule 14(3) of the Uniform Civil Procedure Rules 2005 to have pleaded this matter in its defence. 19 It was submitted that Rule 14 imposed an evidentiary burden on a defendant when faced with a claim that an accident could have been caused by its negligence to both plead and prove that the accident had a cause for which it was not liable. As the respondent had not pleaded in accordance with the Rules it was submitted that the appellant was entitled to succeed.

Resolution of the appeal 20 Rule 14.14 is in the following terms: General rule as to matters to be pleaded specifically (cf SCR Part 15, rule 13; DCR Part 9, rule 9)

(1) In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise.

(2) In a defence or subsequent pleading, a party must plead specifically any matter: (a) that, if not pleaded specifically, may take the opposite party by surprise, or (b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or (c) that raises matters of fact not arising out of the preceding pleading.

(3) Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality." 21 The purpose of Rule 14 is to ensure the efficient disposition of litigation and avoidance of "trial by ambush." In so far as the obligations which the Rule imposes on a defendant are concerned its purpose is to ensure that if there is an answer to the plaintiff's claim which depends upon some positive assertion of fact, some special claim or a claim that the case is bad in law, adequate notice is given to the plaintiff: Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; Bright v Sampson & Duncan Enterprise Pty Ltd (1985) 1 NSWLR 346. 22 However, although it imposes obligations which if not complied with may result in a defendant being precluded from pursuing a particular defence, requiring an adjournment to be granted to the plaintiff or the defendant visited with costs orders, it does not relieve a plaintiff from the obligation to prove its case. In that respect the common law and any relevant statutory provision define the liability of a defendant and the manner of its proof. 23 The circumstances of the present case did not impose an obligation on the respondent to plead in relation to prospective mechanical failure. The respondent did not submit that the accident was explained by mechanical failure. Rather it submitted that unless the appellant could demonstrate that a reasonable possible cause for which the respondent was not responsible, including mechanical failure, had not caused the accident, the appellant could not succeed. He would have failed to prove on the balance of probabilities that the respondent's negligence was responsible for the accident. 24 Fundamental to the appellant's submission is that a tray being lifted by a crane would not normally fall and injure a person without the negligence of the operator. It was submitted that Mr Mai must have pushed a wrong button causing the tray to fall and the principle of res ipsa loquitur applied, with the consequence that the burden fell upon the respondent to prove that the accident occurred without its negligence. 25 It is important to appreciate that the principle known as res ipsa loquitur is descriptive of a process of reasoning by which a prima facie case of negligence can be made out. If an occurrence which has caused injury is of a kind that within the common knowledge and experience of people would not ordinarily occur without negligence proof that the event occurred may be sufficient to raise a prima facie case calling for explanation by the defendant. The principles were recently restated in Schellenberg v Tunnell Holdings Pty Limited (2000) 200 CLR 121. If, however, the cause of the occurrence can be identified or the occurrence is not one within the experience of the ordinary person the principle can have no application. 26 To my mind the principle has no application to the present case. Although the ordinary person well appreciates that a load being lifted by a crane should not fall onto a person's foot the cause of the event is a matter about which the ordinary person would have little if any understanding. There may be, as the trial judge identified, many reasons why such an event occurs without negligence of the operator. Without any evidence which could allow those other possible explanations to be put aside it is not possible to infer that it was a negligent act of the respondent for which it was liable, which caused the accident. 27 The appellant's contention is that by reason of the agreement between the parties the approach which his Honour took to the matter was not open. Because it had been agreed that the respondent would not attempt to allege mechanical fault it was submitted that the only conclusion available to his Honour in the circumstances was said to be that the tray fell because of the negligence of the operator. 28 I cannot accept this submission. The exchange between the lawyers, reflected in the request for particulars and the answers, was confined to the circumstance where the respondent attempted to allege mechanical fault. Such a pleading was not made and the submission of the respondent was confined to alleging that because the appellant was unable to exclude mechanical failure as a reason for the accident the inference that the accident would not have occurred but for the negligence of the respondent was not available. In my opinion his Honour was correct to accept this submission. The appellant was always required to prove his case. 29 As I have indicated Mr Mai did not give evidence at the trial. He was, like the appellant, employed through a labour hire company and had ceased working with the respondent by the time of the trial. Evidence was given at the trial that the respondent's solicitor had made efforts, which were not successful, to locate him. Although the solicitor was cross-examined the appellant did not suggest that Mr Mai could be found and presented no evidence which would suggest this was the case. In these circumstances the inference discussed in Jones v Dunkel (1958) 101 CLR 298 was not available. 30 In my opinion the appropriate orders are:

1. Appeal dismissed. 2. Appellant to pay the respondent's costs. 31 HOEBEN J: I agree with McClellan CJ at CL. **********

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