Schellenberg v Tunnel Holdings Pty Ltd

Schellenberg v Tunnel Holdings Pty Ltd - [2000] HCA 18 - HCA 2000 case summary — Zoe

[9]

The plaintiff was born in Switzerland in 1942 where he qualified as a diesel mechanic before arriving in Australia in 1974. He commenced work in 1990 as a supervisor/foreman with the defendant, a company which is engaged in the supply and servicing of pumps and valves. The defendant's workshop contained a number of tools which utilised compressed air supplied by flexible hoses connected to a compressor outside the workshop.
The plaintiff was injured on 9 January 1991 while working with a "pencil grinder" to smooth the inner surface of a "body valve". The pencil grinder being used by the plaintiff was one of the tools which required compressed air to function. The compressor outside the workshop had approximately 20 outlets for flexible hoses to connect the air to the tools. The hoses were attached to the compressor by a valve to which the hose was plugged. In the present case, the other end of the hose was attached to an adaptor and secured by a "worm drive clamp". The adaptor was itself attached to a special type of fitting known as a "jamec coupling", which in turn was attached to another adaptor which screwed into the pencil grinder. If the tool was unplugged from the adaptor or if the hose was removed from the valve connecting to the compressor, then the appropriate fitting would switch off the air.
The plaintiff alleged that, while he was working with the pencil grinder, the hose became detached and that the escaping compressed air caused the hose to strike him in the face and then swing uncontrollably. The plaintiff raised his upper body sharply to avoid the swinging hose and felt an intense pain in his back which caused him to stop work immediately and report the incident to the workshop manager. The pain subsided shortly after, and he resumed work the same day. However, he woke the next morning in considerable pain and was subsequently certified unfit for work by a medical practitioner. He made a number of attempts to return to work but ultimately found that the pain was too great. His employment with the defendant was terminated on 6 January 1992, and he has had no meaningful employment since that date.
In his statement of claim, the plaintiff relied on a number of particulars of negligence:

[65]

Definition of the occurrence will also depend upon at what level of abstraction it is defined and upon what facts and circumstances are taken into account in defining the occurrence. No doubt the occurrence may sometimes, perhaps often, be defined at particular levels of abstraction, and judges may disagree as to what are the facts and circumstances that constitute the occurrence. In the present case, for example, it is arguable that the occurrence was more concrete than we have defined it and that what we have described as the cause was in fact part of the occurrence. On that view, the occurrence was the striking of the plaintiff with a hose which had separated from its jamec coupling.
Once the occurrence is defined, however, we do not think that there can be an infinite regression in which each "cause" can be traced to its cause with the result that the plaintiff can continue to rely on a claim of unspecified negligence no matter how far back down the causal chain you go. Once what can be properly described as the cause of the occurrence has been identified, it is not necessary that every circumstance surrounding that cause or every cause of that cause also be identified.
As soon as the immediate cause of the accident is established, the focus of the case changes. The question then becomes whether that cause was the product of negligence on the part of the defendant. That is the effect of Mummery v Irvings Pty Ltd[44] and Piening v Wanless[45].
That the principle of res ipsa loquitur ceases to operate once the cause of the occurrence is identified does not mean that the plaintiff cannot rely on inferential reasoning to prove negligence. Thus, in a case like the present, with sufficient evidence, it might be inferred that it was lack of reasonable maintenance that caused the hose to become detached. There was nothing to stop the plaintiff in this case, for example, from relying on res ipsa loquitur and also adducing evidence that the defendant had no system for inspecting the couplings. If he had done so, he would have been entitled to argue that the lack of such a system was negligent and that, if the hose had separated from the jamec coupling, it was proper to infer a causal connection between the lack of an inspection system and the detachment of the hose.
In our opinion, therefore, once the trial judge determined the cause of the occurrence, the only question was whether that cause was the result of the defendant's negligence.

[75]

In our opinion, this case cannot be described as one falling within the "common knowledge and experience of mankind". That being so, on one view, the doctrine is inapplicable[48]. Whether the doctrine is strictly inapplicable or not, however, is to some extent a sterile controversy. As Dixon CJ explained in Franklin, expert evidence may be adduced to suggest that an unexplained occurrence would not ordinarily occur without negligence. Moreover, the expert evidence may be unable to isolate a single hypothesis suggestive of negligence. Nevertheless, the expert evidence may suggest a number of hypotheses, all of which indicate negligence but none of which indicate a greater likelihood of having occurred than any other of them. As is pointed out in The Liability of Employers in Damages for Personal Injury[49], it is no more than a dispute about terminology to determine whether that sort of case is an instance of expert evidence facilitating the doctrine or a case of unspecified negligence based on affirmative evidence. In our opinion, however, if the expert evidence suggests a number of causes that enjoy an equal probability of occurrence and all involve negligence, the occurrence should be regarded as an unexplained occurrence to which the doctrine applies. It is only when the expert evidence assigns a particular cause as the most probable cause of the occurrence that the case should be regarded as outside the doctrine of res ipsa loquitur.
In this case, where the occurrence is outside the experience of the lay person, and the evidence, expert or otherwise, does not establish that such an occurrence ordinarily does not occur without negligence, res ipsa loquitur is inapplicable. Moreover, although the cause was proved, there was insufficient evidence to determine whether the separation of the hose from the jamec coupling was the product of negligence for which the defendant was responsible. In finding that the "only definite fact established on the evidence is that the air hose became detached when it should not have" when all the possible causes of the separation were "speculative factors unsupported by any evidence" Muller DCJ[50] was effectively imposing a standard of strict liability[51].
In Mummery v Irvings Pty Ltd[52], Dixon CJ, Webb, Fullagar and Taylor JJ stated that in that case:

[93]

In order to understand the course which the proceedings took at first instance, it is necessary to say something more of the hose which struck the appellant. The hose was connected to the pencil grinder with which he was working by two adaptors. The first adaptor, the one further away from the grinder, was secured to the hose by a worm-drive clamp. That adaptor screwed into a fitting known as a "jamec coupling". The other end of that coupling was attached to the second adaptor. And that adaptor screwed into the grinder. The appellant's evidence, which was accepted by the trial judge, Muller DCJ, was that the hose came away from the jamec coupling. It is not clear whether it was the hose, clamp and first adaptor that came away from the coupling, or simply the hose and clamp. However, nothing turns on that question.
At first instance, the appellant asserted negligence in a number of respects. First, he claimed that the hose was like an ordinary garden hose with light reinforcing and was inadequate to carry compressed air. Next, he alleged that the respondent was negligent in failing to install a velocity fuse in the air supply system. Thirdly, he asserted negligence in the use of a coupling that was capable of working loose. Finally, he alleged that the respondent was negligent in failing to ensure that the valve on which he was working was in a horizontal rather than an upright position. In this respect, he claimed that, if the valve had been horizontal, he would not have had to bend over to perform the work and, thus, presumably, the risk of back injury would have been minimised. Also, if the valve had been placed horizontally, the hose would not have been pulled over the inner and outer rims of the valve and, thus, it would have been less likely to separate from the grinder.
At the conclusion of the evidence at first instance, counsel for the appellant indicated that he wished to claim negligence on the basis that the accident spoke for itself. The trial judge thereupon gave leave to amend the statement of claim to allege that "the fact that the air hose separated from the fitting is in itself evidence of negligence". His Honour also adjourned the matter to enable the respondent to call evidence to address this issue. In due course, the respondent called Dr Steven Chew, a chartered professional engineer, as a witness.
Dr Chew's evidence concerned tests which he had undertaken to determine whether, on the one hand, the hose separated from the jamec coupling or, on the other, the pencil grinder separated from the hose and coupling. No evidence was led following the adjournment as to the system, if any, which the respondent employed with respect to maintenance of the air supply system or the inspection of its component parts. Nor was evidence led of any instructions given to the appellant or other employees with respect to their checking the hoses and their attachments before using compressed air tools or of any procedures in place to ensure that those instructions were followed. And none of those matters had been the subject of earlier evidence.
So far as concerns the specific allegations of negligence, the trial judge found that the hose in question was adequately reinforced, and that a velocity fuse would not have prevented a hose whipping around in the event that it separated from the grinder. Additionally, his Honour found that there was no evidence of any defect in the component parts of the air line system or their assembly which would cause the coupling to work loose. Finally, his Honour held that the appellant had not established that it was practicable for the work in question to be performed on a valve in a horizontal position, as distinct from an upright position.
Although the trial judge rejected the appellant's specific claims of negligence, his Honour noted in his reasons for judgment, under the heading "Res Ipsa Loquitur", that there were a number of factors that might have caused the hose to come away from the coupling. He observed that "[t]he air hose might have been defective or unduly worn at the end where it was attached to the coupling; the hose clip may have been defective or may have become loose; the end of the adaptor on the one end of the jamec coupling to which the hose was attached may have been defective or become worn; there may have been a sudden surge in air pressure which the equipment could not cope with".
There being no evidence of any of the matters set out above and no evidence that the hose, hose clip (the worm-drive clamp) or jamec coupling were latently defective, or that the appellant exerted undue pressure on the hose, the trial judge concluded that it was "more probable than not that the hose and coupling were insecurely fastened". It will later be necessary to further consider that finding.
On the basis that the hose and coupling were insecurely fastened, his Honour concluded that there had been negligence on the part of the respondent. That was to be inferred from the fact that the equipment was under its control and, also, from its duty "to ensure that it was reasonably safe for the plaintiff and other employees to work with". There being no evidence from the respondent "as to how the compressed air equipment was assembled, inspected or maintained" and no evidence of a system "to ensure that the equipment was checked regularly for incorrect installation, loose fastenings or other possible defects", his Honour concluded that that inference was not displaced, even though there was evidence that the appellant was in charge of the compressors and compressed air equipment. From that decision the respondent appealed to the Full Court of the Supreme Court of Western Australia.

[94]

The Full Court (Pidgeon, Walsh and Ipp JJ) unanimously allowed the respondent's appeal and entered a verdict for the respondent. Pidgeon J was of the view that the trial judge erred in finding that the hose and coupling had been insecurely fastened. However, it was critical, in his Honour's view, that there were sufficient known facts to preclude the trial judge from drawing an inference of negligence. The fact which, in his Honour's view, precluded that inference was that, according to the evidence of an expert witness called in the case for the appellant (the respondent in the Full Court), there was "a risk of a hose clamped in a normal way coming apart". On his Honour's analysis, an inference of negligence could only be drawn if "the accident was of a kind which does not ordinarily happen without negligence" and the effect of the expert evidence was that the accident was of a kind that could. It will later be necessary to refer to this evidence in somewhat greater detail.
In the view of Walsh J, the respondent (the appellant in the Full Court) was entitled to a verdict in its favour because, even if the hose was not securely fastened to the jamec coupling, "there was no evidence that adequate maintenance would have prevented it from separating or that adequate maintenance was not provided" and, more generally, "there was no evidence that adequate maintenance and proper care was not provided".
Ipp J was also of the view that the trial judge erred in finding that the hose was insecurely fastened to the coupling. However, his Honour allowed the appeal to the Full Court on the basis that "[t]he maxim res ipsa loquitur ... generally applies when the cause of an accident has not been established". Ipp J held that, "[o]n the basis of [the trial judge's] findings, the cause of the accident was known in the sense that it must have been one of the factors to which [the trial judge] referred". By "factors", Ipp J was referring to the various factors, extracted above, which the trial judge cited as possible causes of the hose coming away from the coupling. Thus, in his Honour's view, for the appellant (the respondent in the Full Court) to succeed, "he had to prove that the management did not use proper care in regard to all [those] factors".

[95]

In his appeal to this Court, the appellant, by his counsel, raised various matters with respect to res ipsa loquitur which, according to the argument, led the Full Court to err in its approach in this matter. Although res ipsa loquitur has been the subject of much academic writing[65], it is, in this country, no more than a Latin phrase describing a permissible process of reasoning[66]. The same is true in Canada[67]. However, it may enjoy some higher status as a principle of law or evidence in the United Kingdom[68].
Res ipsa loquitur was described in Mummery v Irvings Pty Ltd as having significance as "a general index to those special cases in which mere proof of an occurrence causing injury itself constitutes prima facie evidence of negligence"[69]. The particular reasoning process which enables an inference of negligence to be drawn from the mere occurrence of an event is only available if the occurrence in question is of a kind that "in the ordinary course of things does not happen if those who have the management [of the situation] use proper care"[70].
It was also said in Mummery v Irvings Pty Ltd[71] that, "once the cause of an accident has been established and the relevant circumstances proved, there is no further room for the operation of [res ipsa loquitur]". That statement is correct. It needs, however, to be understood in the context that res ipsa loquitur has no operation if the event in question can occur in the ordinary course without negligence. Thus, it is more accurate to say that the reasoning process involved has no application if, in the ordinary course, the event can occur without negligence and ceases to apply if it is established that the event, in fact, occurred without negligence. That is not to say that a defendant can only succeed by establishing lack of negligence.
Because res ipsa loquitur simply describes a reasoning process by which an inference is drawn, it has no impact on the burden of proof. It is always for the plaintiff to prove negligence on the balance of probabilities, and never for the defendant to prove otherwise[72]. And because an inference of negligence may, but need not, be drawn, a defendant may succeed without calling evidence. Thus, for example, if it emerges that there is a possible explanation for the event in question and that explanation involves no negligence, the trier of fact may decline to infer negligence, without calling upon the defendant.
Although res ipsa loquitur does not alter the burden of proof, it may operate to impose an evidentiary burden on a defendant. It is well recognised in criminal law that there are circumstances which, if unexplained, will support an inference that there is no explanation consistent with innocence[73]. The so-called doctrine of "recent possession" is an example[74]. So too, in the area of negligence, there may be circumstances which, if unexplained, will support an inference that there is no explanation consistent with the exercise of proper care. Thus, for example, it was said in Piening v Wanless that "[i]f a motor car runs off the road, that fact, standing alone and unexplained, provides some evidence that the driver was negligent"[75]. That is because, in the ordinary course, if there were an explanation consistent with the exercise of proper care, the driver would be expected to raise that possibility. And as a general rule, that is the case when there is an event or happening which does not ordinarily occur without negligence on the part of the person having the management of the situation.
Moreover, because res ipsa loquitur is no more than a description of a permissible reasoning process, "a plaintiff may rely both upon [the inference to be drawn from the occurrence in question] and upon evidence, beyond that of the occurrence itself, of specific acts or omissions of the defendant indicating a want of care"[76]. Thus, if an inference of negligence is available in the present case, it is of no significance that the appellant attempted but failed to prove particular negligent acts or omissions on the part of the respondent. And for the same reason, if the evidence as a whole permits of an inference of negligence, it does not matter that the occurrence, standing alone, would not support that inference[77].
There are expressions in the decided cases to the same effect as the statement in Mummery v Irvings Pty Ltd that it is no longer possible to draw an inference of negligence from the occurrence of an accident "once the cause of [the] accident has been established and the relevant circumstances proved"[78]. It was apparently by reference to some such statement that Ipp J held that, in this case, the cause of the accident was known, in the sense that it must have been one of the factors mentioned by the trial judge and, thus, to succeed it was necessary for the appellant to prove negligence in relation to all of those factors.
Res ipsa loquitur is concerned with whether an event was caused by the negligence of the defendant, not with its physical cause. Certainly, an inference cannot be drawn from the occurrence of an event if it is established that it occurred for a reason that did not involve any lack of care. And, ordinarily, the identification of its precise physical cause will indicate whether the occurrence was or was not the result of negligence. But contrary to the view taken by Ipp J in the Full Court, the drawing of an inference of negligence is not precluded if all that can be said is that the event must have resulted from one of several possible physical causes. That is to identify neither the physical cause nor the act or omission that is legally causative of the event in question. Rather, it is to say that the precise physical cause has not been ascertained. And that being so, it is still for the trier of fact to determine whether the occurrence, itself, or the evidence in the case justifies an inference of negligence.

[100]

For the moment, the possibility of a sudden surge in air pressure may be put to one side. That aside, the other matters to which the trial judge referred are matters which also serve to emphasise the respondent's duty to regularly inspect and maintain the air supply system and its component parts, to instruct its employees to check the system prior to using air pressure tools and, also, to adopt procedures to ensure that these instructions were carried out. And the same is true if, as the trial judge found, the hose and coupling were insecurely fastened.
As already mentioned, it is necessary to consider the trial judge's finding that, on the balance of probabilities, the hose and coupling were insecurely fastened. That finding appears to have been based on the likelihood that, if the hose and attachments had been worn or defective, there would have been some evidence to that effect. Since there was no such evidence, the trial judge concluded, by elimination, that the hose came away from the coupling because the hose and the coupling were insecurely fastened. Nevertheless, there was no evidence that the hose and coupling were insecurely fastened. That being so, the trial judge's finding to that effect was wrong. However, the matter can be decided on the basis that insecure fastening was a possible cause, along with the other possibilities identified by the trial judge.
It is convenient to refer now to the trial judge's reference to the possibility of a sudden surge in air pressure with which the air supply system could not cope. There was no evidence that that occurred. Nor, as the trial judge noted, was there any evidence of a latent defect in the hose, the worm-drive clamp or the jamec coupling. Further, there was no evidence that the appellant exerted undue pressure on the hose. In those circumstances, the trial judge would have been entitled to infer that the relevant part of the air supply system was worn, defective, or insecurely fastened. Moreover, his Honour was entitled to infer that proper maintenance and inspection procedures or proper procedures whereby employees were required to check the air supply system before use would have resulted in detection of the problem. And there being no evidence from the respondent as to its maintenance and inspection procedures, its instruction to employees or its procedures for ensuring that those instructions were followed, it was open to the trial judge to find, on the balance of probabilities, that the appellant's injuries resulted from the respondent's negligence and to enter a verdict for the appellant. The Full Court erred in holding to the contrary.

[101]

Although the trial judge was entitled to infer negligence on the part of the respondent, that was not a necessary inference. And as the trial judge wrongly proceeded on the factual basis that the hose and coupling were insecurely fastened, it was for the Full Court to determine, for itself, whether an inference of negligence should be drawn[83]. That it did not do. However, this Court is as well placed as the Full Court to engage in that exercise. In my view, for the reasons already given, negligence should be inferred. Accordingly, the appeal should be allowed, the order of the Full Court set aside and, in lieu of that order, the appeal to that Court should be dismissed.
KIRBY J. Nearly a century ago, in the first reported decision of this Court[84], it was recorded that the judgment under appeal was uncertain because it did not clearly appear whether the reasons below were based upon the maxim res ipsa loquitur. At that time, the maxim (or as it has variously been described, the "rule"[85], "principle"[86], "doctrine"[87], "notion" or "method of inferring"[88]) had been propounded for nearly 40 years[89]. But, although, in the intervening century, the maxim has been a frequent visitor to this Court[90], its application has continued to give rise to problems. The same has been true in other common law jurisdictions. The maxim has also occasioned much judicial and academic writing. A century after it was first propounded, such facts caused Windeyer J to remark that the one thing that can certainly be said of the "phrase" res ipsa loquitur is that "it has not been allowed to speak for itself"[91].
Some writers have criticised the maxim as an "illegitimate offspring of a chance remark"[92]. Others have complained that it is "a chameleon" which "seems to change its colour to suit whatever branch of facts it currently sits on"[93]. Still others have noted that, in certain situations, the facts will "merely whisper negligence" whilst in others they will "shout it aloud"[94]. Unfortunately, the alleged shout often sounds different to different judicial ears, as the present case again illustrates[95]. In consequence, judges both in Australia[96] and overseas[97] have searched for different legal methods, in appropriate cases, to lighten the burden on plaintiffs who claim that their damage is a consequence of a defendant's negligence. Such means have included the assignment to the defendant of a legal burden to disprove negligence in certain circumstances[98], and in others the imposition of strict liability in tort where physical harm arises from defined events, as where it is caused by dangerously defective products[99]. Neither of these approaches has been accepted by this Court. Neither was advanced in the present appeal.
Dissatisfied with the defects of res ipsa loquitur, the Supreme Court of Canada recently declared, unanimously[100]:

[118]

In the opinion of Pidgeon J it was not permissible "by circumstantial evidence" to make the finding that the hose and coupling were insecurely fastened[109] on the tenuous basis that the only definite fact was that the "air hose became detached when it should not have"[110]. By this, I take Pidgeon J to mean that, the want of secure fastening or clamping not having been proved by direct evidence, it was impermissible in the circumstances to infer something that the appellant had expressly alleged but failed to establish. This was especially so in light of expert evidence led by the respondent and accepted by the primary judge that even if the hose was fastened by a clamp "in a normal way", there was still a risk of the hose "coming apart" from the coupling[111].
The principal reasons in the Full Court were given by Walsh J, with whom the other judges agreed. His Honour remarked that the primary judge's application of the "principle Res ipsa loquitur" had "somewhat unnecessarily and unduly complicated the essential issue which was required to be determined, viz whether there was an act or omission on the part of the [employer], its servants or agents which caused or contributed to the injuries sustained by [the appellant]"[112]. Walsh J expressed the opinion that it was a "quantum leap" to conclude from the uncoupling of the air hose and the grinder attachments that "the hose and coupling were insecurely fastened as there was no … sufficient evidence to support such a conclusion"[113]. In any event, even if it were insufficiently fastened, Walsh J was of the opinion that "there was no evidence that adequate maintenance would have prevented it from separating or that adequate maintenance was not provided"[114]. Walsh J having so found, the appellant's claim necessarily failed.
The third judge, Ipp J, also concluded that the finding of insecure fastening was a "speculative factor" which was not open to the primary judge on the evidence[115], especially when it was only among a number of other identified speculative factors of equally persuasive force denying liability. Like Walsh J, Ipp J emphasised that[116]:

[121]

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[117]. 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. It extends to taking reasonable steps in accident prevention and not waiting for accidents to happen before safeguarding the health and safety of employees[118]. The concept of the employer's duty is not a static one. Although the same verbal formulae have been used in the cases, there can be no dispute that the scope of the duty expanded with every decade of the twentieth century. In part, this may reflect an interaction between the common law of negligence and the growing network of statutory duties imposed on employers for the protection of their employees[119]. In part, it may reflect increased awareness of the necessities of accident prevention and an unwillingness to tolerate the imposition of unreasonable burdens on employees injured whilst contributing to the profits of their employers. The relationship between the parties which defines the duty of care applicable in the present case was that of employer and employee. That relationship was uncontested. There was accordingly no need to invoke the maxim of res ipsa loquitur either to establish a duty of care or to define its general content[120].
Secondly, because, in this case, there had been two previous incidents involving the separation of the air hose and the grinder, the risk of a similar incident occurring was clearly foreseeable. Accordingly, the question was whether the employer failed to take the measures necessary to protect employees, such as the appellant, from the dangers inherent in such a foreseeable risk[121]. Given the findings about the immediate cause of the appellant's injuries, the issue is whether the plant and equipment provided by the respondent to the appellant were deficient, either of their nature or in their maintenance, in a way relevant to the cause of the appellant's injury. So far as equipment such as the grinder used by the appellant here was concerned, the employer was not an insurer for its safety. An employer does not warrant that equipment which it supplies to employees will not in any circumstances fail, causing harm. But the employer does owe a duty of care to procure suitable equipment and then to ensure that it is inspected from time to time against reasonably detectable risks of failure or deterioration[122]. Whatever may have been the requirement in earlier times, a continuous duty, demanding vigilance and attention to the needs of accident prevention, is now imposed by the common law upon employers, enforceable in the case of breach causing damage by an action framed in negligence.
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.
Fourthly, the burden of establishing a claim in negligence rests on the plaintiff throughout the proceedings[123]. 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[124]. 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[125] (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.
Introduction of res ipsa: The incantation of the phrase "res ipsa loquitur" cannot alter any of the foregoing general propositions. The adoption of the Latin tag may have given the process of reasoning described the appearance of legal "doctrine". But as this Court has repeatedly emphasised, both from its origin and its purpose, all that is involved in the maxim is a description of a "general method" of reasoning by which the decision-maker can infer "one or more facts in issue from circumstances proved in evidence"[126]. In its origins, the maxim was offered as nothing more than a means by which a plaintiff could establish, by reasoning, the existence of "reasonable evidence of negligence"[127]:

[123]

From its simple beginnings a number of propositions have been derived from the maxim res ipsa loquitur.
First, the plaintiff must show that the thing (res) which, without more, is said to indicate negligence was under the exclusive management and control of the defendant or someone for whom the defendant is responsible or whom it has a right to control[128]. If someone else had control of, or access to, the thing, that person might be responsible for the suggested negligence. The plaintiff must then differentiate the liability of the defendant by direct evidence.
Secondly, the invocation of the manner of reasoning which the maxim describes does not, as it has been traditionally expounded, involve a shifting of the legal burden of proof from the plaintiff to the defendant, such that, unless the defendant establishes a want of any negligence on its part, it will be presumed to be liable. Some early dicta in this Court[129] and in the English courts[130] in this respect have been rejected by later decisions[131]. Thus, the maxim does not import a legal presumption having such effect. The defendant can remain silent and still succeed[132]. If, in the particular case, the manner of reasoning described as res ipsa loquitur is applicable, it merely renders it permissible for the tribunal of fact to draw the inference which the plaintiff invites. It is not obligatory, as it would be if the maxim had the effect of creating a presumption which the defendant was obliged in law to rebut[133].
Thirdly, this does not mean that a failure on the part of a defendant to call evidence in a case where a plaintiff has invoked res ipsa loquitur is treated, in Australia (any more than elsewhere), as completely irrelevant. In some circumstances such an omission will have a telling forensic impact. From the earliest descriptions of the method of reasoning which res ipsa loquitur sanctions, reference has been made to the relevance of the "absence of explanation by the defendants"[134]. The practical necessities of an adversarial trial might, in at least some situations, effectively compel a defendant to attempt to show that the accident happened without negligence on its part[135].
It was in this sense, as a matter of forensic rather than legal necessity, that this Court was willing in Mummery v Irvings Pty Ltd[136] to accept that "the defendant may, perhaps, be said, to carry an onus". However, the distinction between the legal burden (which remains throughout upon a plaintiff[137]) and the forensic evidential burden of persuasion (which the state of the evidence may effectively impose upon a defendant) although elusive is important. The position consistently followed in this Court for more than half a century is that described by Barwick CJ in Nominal Defendant v Haslbauer[138]:

[125]

Statute may alter the foregoing position[139]. However, no Australian statute has changed the oft-repeated exposition of the law by this Court[140]. In Australia, the invocation of the maxim creates no presumption and shifts no burden of proof to the defendant. All that it does, when applicable, is to raise an inference of the existence of negligence[141]. In days when jury trials of factual contests in civil causes were more common in Australia than they are today, the maxim was an occasional friend to a plaintiff to ensure that the plaintiff got to the jury[142]. It did not, however, ensure a verdict from the jury in the plaintiff's favour. It still remained for the judge to instruct the jury that the plaintiff bore the onus of proving the case on the balance of probabilities[143] and for the jury to conclude whether they should draw the inference which the plaintiff invited[144].
Fourthly, there was for a time a belief that a plaintiff would lose any benefit of reliance on the maxim of res ipsa loquitur if an attempt were made to prove, by direct evidence, the actual cause of the injury giving rise to the proceedings[145]. In Australia, this belief derived, understandably enough, from a remark in the reasons of the majority in Mummery's Case[146]. The misunderstanding was corrected by this Court in Anchor Products Ltd v Hedges[147]. In that decision the Court made it clear that the evidence might still give rise to an inference of negligence although a plaintiff has sought, but failed, to explain the specific cause as arising from the defendant's want of due care[148]. For example, where a defendant drove his motor vehicle into the back of the plaintiff's vehicle the maxim would be given prima facie operation[149]. However, when the defendant established explicitly that the cause of that action was an unexplained and unforeseen brake failure, the plaintiff could no longer rely on the maxim to prove negligence. If, as a result of evidence of a fact directly concerned with the cause of the incident, there is no room for inference, the method of reasoning which the maxim expresses was unavailing. The plaintiff would have to convince the court that the cause actually established betokened negligence on the defendant's part or, with some other fact, directly proved such negligence.

[126]

Assuming that the maxim res ipsa loquitur remains part of our law, I do not consider that it assisted the appellant in the circumstances of this case.
The difficulty lies not in respect of that element of the general exposition of the maxim which requires that the thing in question (in this case the grinder connected to the air hose supplying compressed air) should at all relevant times remain under the control of the respondent. During argument, it was faintly suggested that this was not the case here because the grinder was outside the control of the respondent and, for relevant purposes, was within the control of the appellant himself. Upon one view of the facts, this is undoubtedly true. But the "control" referred to in the authorities is not simply the physical possession of the thing in question. It is such control as imports responsibility for the event which has occurred. The duty resting on an employer to ensure that safe plant and equipment are provided to an employee cannot be deflected by asserting that it was the responsibility of others (including of the injured employee) to ensure that the plant and equipment in question were safe. For the purposes of the maxim, the "control" of the grinder and its component parts remained in the management of the respondent. The primary judge correctly so found[150].
If it were suggested that the appellant had himself failed adequately to inspect and check the equipment supplied (which was otherwise safe and suitable) this could be relevant to an argument for the respondent that any default on its part was not the cause of the appellant's injury[151]; or that the appellant had contributed by his own negligence to the damage which he had suffered. In this case, those considerations can be put to one side.
Instead, in this case, the difficulty of invoking the maxim of res ipsa loquitur arises from the requirement that the occurrence must be such that it would not have happened without negligence. This was not the present case. The air hose could have become disconnected from the coupling without any negligence on the part of the respondent. This would be so in a number of circumstances which are readily imaginable. They were in fact contemplated by the primary judge as a matter of "common sense"[152]. They would include:

[132]

The primary judge endeavoured to overcome these difficulties by concluding, on the probabilities, that the hose and couplings were insecurely fastened. But neither in the express factual finding which his Honour made (ie that the hose detached when it should not have), nor in inferences available from those findings, was this more than a bare possibility. The foregoing possibilities, excluded by the primary judge as "speculative", were no more speculative than the one which he ultimately embraced. In particular (as Pidgeon J observed) it is difficult to reconcile his final conclusion by way of inference with his explicit rejection of the appellant's attempt to prove by evidence that the "air line couplings [were] capable of working loose". If this was a possibility, but one which had not been proved, how could it be excluded from account by a leap to the conclusion that the "hose and coupling were insecurely fastened"[153]?
In the end, therefore, there were various possibilities. All of them were "conjectural". This conclusion is not entirely surprising. The appellant's basic case was the one which he attempted, but failed, to prove against the respondent. As the record of the trial shows, the invocation of the maxim res ipsa loquitur was an afterthought. The first thoughts of those advising the appellant were correct. This was not a case where the maxim would avail the plaintiff. Air pressure hoses and their connection by specially designed couplings and clamps to grinders operated by hydraulic air pressure are not within the ordinary knowledge of tribunals of fact. They do not constitute simple implements with which the ordinary decision-maker (judge or jury) is familiar in daily life or which are so rudimentary that they may be readily understood[154]. As the evidence revealed, it is a mistake to equate such equipment with garden hoses attached to domestic water taps. The peculiarities of the work equipment required explicit evidence. Such evidence was given. Once given, it left no real scope for the legitimate operation of informed inference. There was ample scope for speculation and conjecture. But this fell far short of establishing that the occurrence which happened would not have occurred in the absence of negligence on the part of the respondent. Equally consistent was the possibility that the defect was latent, the incident unpredictable and that any reasonable system of inspection and maintenance instituted by the employer would not have detected and predicted it.

[133]

Faced with this conclusion, the appellant grasped at two possibilities which it is necessary to mention.
The first was an invitation that this Court should follow the lead of the Supreme Court of Canada, abolish the special exposition of res ipsa loquitur and substitute in its place an endorsement of the general principle that the trier of fact should weigh circumstantial evidence with direct evidence when judging whether, on the balance of probabilities, a prima facie case of negligence has been made out against the defendant.
There are various attractions in taking this course. This Court has emphasised many times, and for over 60 years, that the maxim res ipsa loquitur "should be regarded merely as an application of the general method of inferring one or more facts in issue from circumstances proved in evidence"[155]. In this respect, this Court has not been alone. Judges elsewhere have been at pains to deny to the maxim any "magic qualities"[156]. They have expressed exasperation at the suggestion that the maxim amounts to a "principle", or even worse, a doctrine of law[157]. Lord Shaw of Dunfermline remarked nearly 80 years ago that if it "had not been in Latin, nobody would have called it a principle"[158]. Its invocation "is no substitute for reasonable investigation and discovery"[159]. Nor does it "relieve a plaintiff too uninquisitive to undertake available proof"[160].
As these reasons demonstrate, despite the foregoing criticisms, in Australia as in other countries, the maxim has proved most resilient. Doubtless this is because its brevity expresses a vivid idea which may occasionally promise hope to a plaintiff who, through no fault of his or her own, is unable to establish exactly what caused the damage said to be the result of the defendant's want of care in respect of matters wholly or largely within the knowledge and control of the defendant.
An advantage of abolishing the maxim would be that it might release judicial minds from the encrustations of authority that have gathered around the maxim and its multitude of attempted applications over the 130 years of its existence. But even if, in this case, res ipsa loquitur, as such, were overthrown and the facts analysed by reference solely to ascertaining the inferences available from the facts as found, this would make no difference. The position would remain the same. The attempts at specific explanations of the disengagement of the air hose and the grinder coupling would remain rejected. The possibility that the disengagement occurred for other reasons not alleged would still be, as the primary judge described them, "speculative". The question would come back to whether, in this context, the tribunal of fact was justified in inferring that it was more probable than not that the hose and coupling were insecurely fastened. That inference would remain just one of many possibilities. Selection of it as more probable than not would be as impermissible if no Latin maxim were invoked as it is if the established jurisprudence of res ipsa loquitur was applied.
Whilst, therefore, I am inclined to favour the conclusion reached by the Supreme Court of Canada, it is unnecessary to decide the point in this appeal. Nothing turns on it in this case. Where a maxim of the law has endured for so long, its resilience suggests a measure of utility that should restrain needless abolition. Perhaps res ipsa loquitur will continue to linger for a time as yet another indication of the attraction of lawyers to exotic labels. This case may have the merit of acting as a reminder of its limitations, the danger of treating it as a rule of law and the necessity to limit its use to that of an aid to logical reasoning by inference when considering whether the plaintiff has, or has not, established a cause of action in negligence.

[134]

The second argument which the appellant embraced, like a raft in a very uncomfortable storm, would have it that the inference which the primary judge drew was supported by (1) the control which the respondent had over the plant and equipment that it made available to the appellant; (2) the duty of care resting on the appellant to provide safe plant and equipment as its employer; and (3) the fact that the air hose came away from the grinder at the coupling and that this is not an event that ordinarily occurs in the use of plant and equipment of that kind if it is in a proper state when supplied and thereafter properly inspected and maintained.
I have serious doubts whether, at this late stage in these proceedings, and before this Court, the appellant should be permitted to recast his case in such a way. He brought a claim alleging specified negligence. When this failed, he was permitted to recast his claim in reliance on the maxim res ipsa loquitur. It would exceed all bounds of proper procedural norms to entertain, now and so belatedly, a third and different case.
For the reasons that I have explained, it is not (or until now has not been thought to be) the duty of an employer to guarantee the absolute safety of plant and equipment provided to employees. In so far as this Court extends the common law liability of employers and imposes liability in circumstances where there is no relevant fault on the part of the employer, its decisions must conform to the fundamental assumption of the tort of negligence. If it be the case that (contrary to the primary suggestion for the appellant) the plant and equipment provided by the respondent to the appellant were perfectly suitable, purchased from a reputable source, checked before use and found to be in proper condition, there is no warrant to infer from the facts postulated that the respondent failed in its duty of care simply because the hose came away from the coupling linking it to the grinder which the appellant was using. Assuming, then, that it would be just to allow the appellant to rely on such arguments given the chequered history of this litigation, I would reject them. The tort of negligence is fundamentally concerned with fault[161]. If that concern is forgotten, the law has lost its compass.

[135]

In the result none of the suggested bases upon which the appellant claimed the restoration of the judgment in his favour has been made good. The Full Court acted within its authority to substitute its own conclusion on the facts. No relevant finding affecting the credibility of witnesses or the evaluation of the evidence prevented the Full Court from giving effect to its own conclusion on those facts. In my opinion the conclusion reached by the Full Court was correct. The appeal to this Court should be dismissed with costs.
HAYNE J. The appellant sued his employer, the respondent to this appeal, for damages for personal injury which the appellant alleged that he suffered at work. He alleged that while he was using a pneumatic powered pencil grinder, the hose which connected it to the air compressor system separated, whipped around and caused him to jerk upright out of its way. The appellant alleged that he injured his back and that his injuries had been caused by the respondent's negligence.
At the trial of the action in the District Court of Western Australia, the appellant contended that there were three acts or omissions of the respondent which were negligent: first, that the hose provided by the respondent was a garden hose, not a hose of the kind which should be used; secondly, that a device called a "velocity fuse" should have been, but was not, installed in the air compressor system in the respondent's workshop; and thirdly, that the valve on which the appellant was working with the grinder should have been moved to a different position and put on a stand. The trial judge said that the appellant's claim of negligence "rest[ed] to a significant extent" upon the first of these allegations: that the wrong kind of hose had been provided. Very late in the proceedings, at the suggestion of the trial judge, the appellant sought, and was granted, leave to amend his claim by adding a further particular of negligence to the effect that the separation of the hose spoke for itself of negligence by the respondent. Each party was then permitted to reopen its case and lead further evidence from experts who had given evidence earlier in the trial.
The trial judge gave judgment for the appellant. His Honour was not persuaded that the hose that had been provided was the wrong kind of hose or that a velocity fuse should have been installed. The allegation that the valve should have been moved into a different position was also rejected. The trial judge found, however, that

[150]

The conclusion of fault is, of course, critical. At first sight it is a conclusion that seems to proceed from the finding that it was more probable than not that the hose and coupling were "insecurely fastened". But on closer examination it can be seen that the finding of insecure fastening either is no more than a statement of fact (the hose separated) or is no more than a restatement, in other words, of the conclusion of fault. And that conclusion of fault does not depend on any of the other steps that I have described other than (perhaps) the conclusion that the respondent had exclusive control of the equipment.
There was some evidence that the appellant was in charge of the compressors and compressed air system. This appears not to have been treated by the trial judge or the parties as significant. (It may, however, explain why the appellant did not seek to mount a case at trial alleging that the equipment had been poorly assembled or maintained. Any such allegation would very likely have invited a plea and finding of contributory negligence by the appellant[167].)
The other two steps I have mentioned were negative findings: that there was no evidence showing a particular reason for the separation of the hose and no evidence showing how it was assembled, inspected or maintained or whether there was any system for inspection. It follows that the essence of the trial judge's reasoning was that the employer controlled the equipment and, there being no explanation for the hose having separated, the fact of separation demonstrated negligence by the employer.
This conclusion was not open in this case. As was pointed out in oral argument of this appeal, the appellant's submission could be distilled to a general proposition that if any equipment supplied by an employer for use by an employee fails, it is more probable than not that the employer's negligence was a cause of that failure. I do not accept that this is so, at least in the case of equipment as complex as the equipment the appellant was using when he was injured. The reasons that no such inference can be drawn may be illustrated by the facts of this case.
As the trial judge acknowledged, there were many reasons why the hose could have separated from the jamec coupling. Not all of those reasons suggested negligence on the part of the respondent. There was no basis for concluding that the reasons which did not suggest negligence were any more or less probable causes of what happened than other reasons which did suggest negligence by the respondent.
The trial judge noted that there could have been latent defects in the hose, the clip or the coupling. There was no evidence that demonstrated, or suggested, that this was so. But if one of these items had had a latent defect, why would the employer have been negligent for not discovering such a defect? And given that the cause of the hose separating was not known, what made latent defect an improbable cause?
The trial judge also noted the possibility that the appellant had exerted undue pressure on the hose. Again, there was no evidence that this was so. But if it had been, a conclusion that the respondent had been negligent may have required a close examination of the system of work prescribed by the respondent and the steps taken to ensure that it was followed. Again, given that the cause of the incident was not known, what was it that made undue pressure by the appellant an improbable cause? (And if undue pressure by the appellant was a probable cause, what was it about that which suggested a want of care by the employer?)
An employer's duty of care to an employee is a duty that will ordinarily require attention to a number of very different matters. An employer must take reasonable care to provide a safe system of work and a safe place of work. An employer must provide "proper and adequate means of carrying out [the employee's] work without unnecessary risk"[168]. The fact that a piece of equipment fails while being used by an employee will ordinarily invite consideration of many of the features of the employer's duty which I have mentioned. Did the equipment fail because it was unsuited to the task? Was it unsuited to the task because the place or system of work was inappropriate or unsafe? (Allegations of this kind can be seen lying behind the appellant's contention in this case that the grinder should not have been used to grind the inside of the valve unless the valve was first put onto a stand in a horizontal position.) Was the equipment unsuited to the task because other or better equipment was available? (Again, the appellant's allegation that a velocity fuse should have been installed seems to have been an allegation of this kind.) Or did the equipment fail because no sufficient system for maintaining and checking the equipment was implemented by the employer? Or, and this is of critical importance, did the equipment fail for some reason beyond the control of the employer?
Negligence on the part of the respondent would lie behind some but not all of these possible explanations of what happened in the present case. It follows that inferring from the separation of the hose that the respondent's negligence was probably a cause of the separation assumes that some explanations for the incident were more probable than others. But there was no basis for that assumption.
Given what the trial judge said in his reasons, it may be that it could not be assumed or inferred that one or other of the particular causes identified by the trial judge (but described as speculative) happened. But even if all of those particular causes were to be treated as possible causes of the separation, there was no basis (whether in the evidence or in ordinary human experience) for assuming or inferring that some or all of them could probably have been avoided had the employer taken reasonable care. If there had been some other cause of the separation of the hose (other, that is, than the particular explanations suggested by the trial judge) there was again no basis in the evidence or in experience for assuming or inferring that whatever that cause may have been, it could probably have been avoided by the employer taking reasonable care. Indeed to make such assumptions or inferences would be to convert the burden of proving negligence from a burden borne by the appellant to a burden of disproving negligence borne by the respondent. That is a step which long since has been held by this Court to be impermissible[169].
It must be accepted that the duty which an employer owes to an employee imposes heavy obligations on the employer. One important aspect of that duty is the duty to provide safe equipment for the employee to use. If the equipment fails and nothing more is known about why it failed, it may be possible to say in some cases, in the words of the Restatement of Torts, that the event (the failure) "is of a kind which ordinarily does not occur in the absence of negligence"[170]. But where the equipment is as complex as this equipment was, and there are so many possible reasons for its failure, I do not accept that its failure probably points to the employer being the negligent party. There are too many different intermediate steps that must be taken before that conclusion can be drawn, even on the relatively undemanding standard of the balance of probabilities.
In these circumstances I do not think that it is necessary to examine whether the use of the expression res ipsa loquitur can or should be reconsidered or whether, as the appellant contended, there are "encrustations" on the doctrine that should be stripped away.
The appeal should be dismissed with costs.

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