Slivak v Lurgi [2001] HCA 6 | Case summary

Slivak v Lurgi [2001] HCA 6 | Case summary | Zoe

On 20 February 1993, Mr Slivak was injured when he fell from a fume extraction system upon the construction of which he was working. The system was designed by the first respondent, Lurgi (Australia) Pty Ltd ("Lurgi"), and was being installed for the Broken Hill Proprietary Company Limited ("BHP"), pursuant to a contract between Lurgi and BHP. Under that contract, Lurgi accepted responsibility for the entire project, including a general responsibility to BHP for the safety of the works and for safe working conditions. It also provided that Lurgi could, with BHP's approval, subcontract any part of the contract works. The contract works involved the construction of a fume extraction and dust disposal facility and the relevant part was the design and erection of a substantial tower through which air would be drawn and, in the process, filtered.
At the time of the accident, Mr Slivak was employed by Lucon (Australia) Pty Ltd ("Lucon"). There was no evidence given at trial as to the exact relationship between Lucon and Lurgi, and the case was fought at trial on the footing that Lurgi had entered into a contract with Lucon for the performance by Lucon of part of the contract work. Nor does there appear to have been evidence led as to the scope or terms of the contract between Lurgi and Lucon. Doyle CJ commented that he was under the firm impression that "the trial proceeded on the basis that Lucon was a specialist subcontractor in respect of this work, and that it accepted responsibility for it as between Lucon and Lurgi"[2]. It is accepted that no action could have been maintained by the Slivaks against Lucon and that this was by reason of the provisions of s 54 of the Workers Rehabilitation and Compensation Act 1986 (SA). Section 54 provides that no liability attaches to an employer in respect of a compensable disability arising from employment unless there apply certain conditions which are not satisfied here. The employer has made worker's compensation payments to Mr Slivak. The litigation has been fought upon another issue, whether Mr Slivak's injuries were caused by defective design by Lurgi of the fume extraction system.
The second respondent is Lurgi's insurer. Lurgi joined it, apparently by third party notice, seeking indemnity from it should Lurgi be found liable to the Slivaks. The issues between it and Lurgi have been stood over pending determination of the issues between the Slivaks and Lurgi. The second respondent took no part in argument before this Court.
The tower forming the fume extraction system was some 25 metres in height. Air was to come in through its top, pass through a filter system, and flow out through a funnel at its bottom. The filter system was located at about 15 metres from the ground and comprised four "cell plates", each about 6 mm thick and of about one tonne in weight, set up in a 2 x 2 formation on a support structure. Each plate was perforated by elongated holes arranged in concentric circles about its centre through which the air would pass; it was stiffened by a series of concentric steel stiffeners of varying thickness and depth, and diagonal stiffeners at 45 degrees to the axis of the plate, adjacent to each of its corners. Each cell plate was manufactured on site, by employees of Lucon, by the welding together of two sub‑plates.
The support structure comprised steel supports welded to the inside of the tower at an appropriate height and a "cross frame". This comprised two steel beams crossing at right angles, joining the centre of the north face of the structure to its south face, and its east face likewise to its west face. Each cell plate was to rest upon the steel supports on two adjacent sides and upon the cross frame on its other two sides. Three corners of each cell plate were cut off at a 45 degree angle 200 mm from the corner; there was left intact only the corner intended to lie nearest to a corner of the tower, that is, respectively at its northwest, northeast, southeast or southwest point. The design called for the cell plates to be welded to the support structure to fix them into place.
On 19 February 1993, two employees of Lucon, Mr Frost and Mr Lloyd, worked on the northwestern cell plate. They used a number of means to move it into position on the support structure and then Mr Frost tack‑welded it to the support structure. On 20 February 1993, Mr Slivak and Mr Lloyd attempted to repeat the process with the southwestern cell plate. After making measurements, they determined that the cell plate needed to be moved about 25‑30 mm in a northerly direction before they welded it into position. At this time, Mr Lloyd checked the cell plate and found it was supported on all four sides, although he could not say by how much. To move it, they placed a scaffold plank in the space between the plate and one of the adjoining walls. Mr Slivak placed a timber bearer behind the plank as a fulcrum and Mr Lloyd put pressure on the plank to move the cell plate. As they did so, the plate suddenly fell and Mr Slivak and Mr Lloyd fell with it. Mr Slivak sustained severe injuries, including compound fractures of both legs.
The trial judge accepted expert evidence adduced by the appellants from a structural engineer, Mr Fowlie. He accepted Mr Fowlie's opinion that the cell plate could only have fallen if it had become unsupported on two adjoining edges and was bearing a load additional to its own weight. If this occurred, it would shift the centre of mass of the plate beyond the centre of support and would cause the plate to rotate about its axis. However, Mr Fowlie's evidence showed that, as designed, a cell plate could not have become unsupported on both sides. Each cell plate was designed to be 4700 mm (+0/‑2 mm) (north-south) by 4210 mm (+0/‑2 mm) (east-west). The area they were to span, between the steel supports and the cross frame, was designed to be 4647 mm (north-south) by 4167 mm (east-west). Each cell plate could overlap the steel support or the cross frame by a maximum of 40 mm, dictated by the location of stiffeners welded to the underside of the plate.
Mr Fowlie calculated that, had the cell plate been constructed to design (that is, measured 4700 mm by 4210 mm) and been located so as to overlap as far as possible its supports on two adjacent sides, then the minimum overlap of the cell plate on the opposite adjacent sides would have been 13 mm for the north or south side and 3 mm for the east or west side. Had the cell plate been constructed to tolerance within the design, at the smaller end of the permissible range, the minimum overlap on the opposite sides would have reduced to 11 mm on the north or south side and 1 mm on the east or west side. Although Mr Fowlie observed that vertical deflection of the plate could reduce the amount of overlap, the trial judge accepted a submission that this could properly be ignored. This was because, in cross-examination, Mr Fowlie had conceded that, as the cell plates were designed to support 7.5 tonnes in the finished structure without any vertical deflection, any deflection in fact existing at the time of the accident would have had no practical effect.
Site surveys prepared by Lurgi showed that the southwestern quadrant of the support structure had not been erected completely square. The diagonal dimensions across corners of the supporting steelwork were found to be 6263 mm (southwest to northeast) and 6223 mm (southeast to northwest). There was also outward bowing at the mid‑length of the western support angle of 14 mm and of the southern support angle of 13 mm. The dimensions of the steel plate were found to be 4700/4699 mm north to south (within design tolerance) and 4205/4207 mm east to west (outside design tolerance). The trial judge accepted Mr Fowlie's evidence that, on this information, and assuming one corner of the plate to be square, it was geometrically possible to position the cell plate so that full support was provided only to two adjacent sides. In this position, there would be a gap for the full length of the plate edge on a third side and minimal overlap of the plate and its supporting structure on the fourth side, and then only at the corners. These calculations did not include any horizontal deflection of the external wall of the structure as a result of the levering of the plate at the time of the accident. This would further have reduced the extent of any overlap to the fourth side.
The trial judge accepted Mr Fowlie's evidence that the loss of support to the cell plates could be attributed to the combination of some of the following factors:

Before this Court, counsel for the appellants submitted that s 24(2a)(a) of the Act imposed a duty of care more extensive than that imposed by the common law and that the Full Court had erred in not analysing or defining the extent of that duty and in not expressing how it differed from the common law duty of care.
Counsel for the appellants also attacked the reasoning of the Full Court on several grounds. These were, first, that the Full Court had relied upon evidence of common practice but that the statutory standard of care is not limited by such evidence; and, secondly, that Doyle CJ had stated that the designer of a tower was entitled to rely on a reasonable expectation that fabrication and erection would be carried out by competent persons, whereas the risk that design tolerances would be exceeded during construction and the consequential risk of injury were foreseeable. It was also submitted that any reasonable expectation on the part of Lurgi that fabrication would be carried out by competent contractors was "irrelevant" and that it was not "a defence to an action for breach of the statutory duty to ensure safety that the immediate cause of the danger was the carelessness of another".
Submissions were made respecting the onus of proof. The appellants argued that the reasoning of the Full Court wrongly placed an onus upon a plaintiff to prove that a defendant designer did not do that which was reasonably practicable. It was said that Lurgi carried an evidential onus to rebut the evidence of Mr Fowlie adduced on behalf of Mr Slivak, showing that there was an apparently cost‑effective precaution which eliminated the risk of serious injury and death. As Lurgi had not adduced any evidence to the contrary, so the argument went, it failed to discharge this onus.
The appellants contended that the statutory duty required the taking of "all reasonably practicable measures and precautions which can ensure safety". In the present case, this was said to require Lurgi to take reasonably practicable steps in respect of any reasonably foreseeable errors or variations from design that might be made by the builder of the structure it designed. In particular, it was urged that Lurgi ought to have set the tolerances in its design, or included additional elements in the design, or both, to guard against the possibility that the tower would not be constructed or erected according to the design, so that these errors would not result in the falling of the cell plates.
However, there was no evidence adduced that the design tolerances were unreasonably small. Rather, there was a concurrent finding of fact, based upon Mr Fowlie's evidence and the tolerances being within the Australian Standard, that the design was not itself defective. In these circumstances, the appeal was pressed on the latter alternative, that Lurgi ought to have included the additional diagonal struts mentioned by Mr Fowlie.

It was one thing to discern a positive implication in the efforts of the nineteenth century legislatures respecting private acts for the construction of public infrastructure, a matter adverted to in Byrne[13]. Likewise when the common law doctrines of common employment and contributory negligence flourished, to the prejudice of plaintiffs. While those considerations have largely passed into history, the impact of modern "outsourcing"[14] is not yet fully explored in the case law. Here, it is the abolition by South Australian legislation of what would have been Mr Slivak's common law rights which has enlivened the concededly successful search for a statutory norm of private liability.
What now has to be determined is the scope of that statutory duty and its application in this litigation. Section 24(2a) applies where "any structure is to be erected in the course of any work". The duty imposed upon designers of the structure by s 24(2a)(a) is only one of four duties imposed by sub‑s (2a). Duties are imposed upon those who design the structure, who manufacture or import or supply materials and who erect the structure. Breach of any provision of s 24(1), to which s 24(2a) attaches, is punishable by a "Division 2 fine", which is defined by s 4(5) to mean a fine not exceeding $50,000. This is the second most severe fine which may be imposed under the Act.
The Act thus demarcates the activities of designing a structure, manufacturing materials to be used for its erection, importing or supplying any materials used "for the purposes of the structure" and undertaking the erection of the structure. Lucon, and not Lurgi, was the person undertaking the erection of the structure. For this reason, the pleaded allegations of negligence directed at Lurgi respecting the mode of work used in the erection of the tower are not pressed.
Moreover, there is a difference in the scope of these statutory duties. The duty of a designer extends to "the persons who are required to erect" the structure so that they may do it "safe from injury and risks to health". The duty of a manufacturer extends to "the persons who are required to erect the structure" so that they are "in using, handling or otherwise dealing with the materials, safe from injury and risks to health". The duty of an importer or supplier of materials extends to "any person who must use, handle or otherwise deal with the materials", while the duty of the person undertaking the erection is to ensure so far as is reasonably practicable "that the structure is safe during the course of its erection and subsequent use" (emphasis added).
The range of duties laid out in s 24(2a) (which was inserted in 1990[15]) on the basis of tasks undertaken is in contrast to the allocation of duties in the adjacent sub‑sections. These remain in a form substantially unchanged from the original text of the Act[16]. Section 24(1) imposes duties upon a person "who designs, manufactures, imports or supplies any plant" to which that sub‑section applies, while s 24(2) imposes duties upon a person who "erects, installs or modifies any plant" to which that sub‑section refers. Section 24(3) imposes duties upon a person "who manufactures, imports or supplies any substance for use at a workplace". The sub‑sections serve to highlight the more precise division of duties in s 24(2a) and hence to elucidate the reach of that sub‑section.
Sub‑section (2a) divides and allocates in pars (a)‑(d) duties between those who design a structure, those who manufacture any materials to be used for its "purposes", those who import or supply any materials to be used for its "purposes" and those who undertake its erection. The difference in the content of the duties and their different scope of operation suggests that the duty imposed upon designers is intended to be limited to matters of design. To deal with examples raised during argument, it would not be incumbent on a designer to guard against a supplier of material or an erector incorporating substandard or inferior materials when constructing the design. The supplier or erector or both would be in breach of their own duty under the relevant paragraphs of s 24(2a). The express imposition of liability upon those parties for such acts suggests there is not to be implied in par (a) of s 24(2a) an imposition upon the designer in respect of the same matters.
The same would follow in respect of the erection of a structure outside or otherwise not in accordance with its design. The imposition by par (d) of liability upon the person undertaking the erection of the structure suggests that the designer is not required by par (a) to anticipate errors or departures from design by the person undertaking the erection and to take steps to guard against it by modifying the design. The result of accepting submissions for the appellants would be to enlarge the scope of par (a) to cover the matters already dealt with in pars (b), (c) or (d). This would tend to distort the scheme of the Act and undermine its careful allocation of liabilities among the parties jointly responsible for the erection of a structure. It would also expose designers to criminal liability for a penalty of up to $50,000 in respect of matters not expressly mentioned in the statute. The court should be slow to interpret a law in a fashion which would impose criminal liability by a process of implication.
This conclusion is fortified by the text of par (a) itself. This requires "the person who designs the structure" to "ensure so far as is reasonably practicable that the structure is designed" so that those erecting it are "safe from injury and risks to health". It is not a duty to ensure that those erecting the structure are safe from injury and risks to health. This would approximate some form of non‑delegable duty of care in respect of all aspects of the erection of a structure. More particularly, any feature or structure included in a design might not be, or be only incompletely, complied with during the course of a structure being built according to it. A builder might depart from a designed overlap of 1 mm by building the structure 2 mm wider than designed, or depart from a designed overlap of 2 mm by an error of 4 mm, or from a designed overlap of 3 mm by an error of 6 mm, and so on. In the statutory text, no means is provided to differentiate between those departures required to be anticipated by a designer and those which are not. Nor are cases construing the words of other statutes helpful. To attempt to build a superstructure sufficiently finely‑tuned to be capable of distinguishing between such examples would build too much upon the words of the paragraph. The text of par (a) cannot bear the added weight that would be necessary to allow the distinctions contended for by counsel for the appellants.
The ordinary and natural meaning of the terms in par (a) of s 24(2a) is that they apply to a structure being built in accordance with the design. Thus, if, as designed, parts of a structure are incapable of bearing weight that the structure is intended to bear, or if, as designed, it is possible for parts of the structure to fall or break, or if the design is incapable of being built safely having regard to features of the location in which it is being built, then the design will be inadequate and the designer will have breached s 24(2a). The appellants stressed the presence of the term "must ensure". However, the requirement is one of ensuring safety "so far as is reasonably practicable". The requirement applies to matters which are within the power of the designer to perform or check, such as ascertaining what use the structure will be put to, what loads it will experience when being built and the nature of the location in which it is to be erected. This is in contrast to the matters that would be forced within the ambit of this requirement were the submissions for the appellants accepted; for then a designer would be required to take account of factors outside the power of the designer to control, supervise or manage, such as the procedures to be adopted during construction.

As already indicated, Mr Slivak was injured whilst working on the construction of an air filtration tower. The tower was being constructed by Lucon (Australia) Pty Ltd ("Lucon") by whom Mr Slivak was employed. It is not in issue that Lucon was negligent in failing to construct the tower in accordance with the plans and specifications prepared by Lurgi and, also, in failing to provide a safe system of work. However, the appellants have no cause of action against Lucon[21]. Instead, they claim against Lurgi as the designer of the tower.
The tower was a box-like structure approximately 8 metres wide by 8 metres deep and 25 metres high with a filter system inside. The filter system necessitated the placement of four steel cell plates approximately 15 metres above ground level. The steel cell plates were each approximately 4 metres wide by 4 metres long and about 1 tonne in weight. As designed, each cell plate was to be supported on two sides by angle iron welded to the inside walls of the tower and, on the other two sides, by steel beams or RSJs spanning the tower from north to south and east to west and crossing at right angles in the centre of the tower. Mr Slivak was injured whilst positioning one of the cell plates on its intended supports. The cell plate in question became unsupported on two sides and fell to the bottom of the tower.
It is not in issue that, had the cell plate in question and its support structure conformed to design or to the design tolerances specified by Lurgi, it would have been properly supported and would not have fallen. The design called for tolerances of plus or minus one millimetre for lengths of less than one metre and plus or minus two millimetres for lengths of one or more metres. Had the cell plate in question and the support structure been erected precisely in accordance with the design dimensions, there would have been a "minimum overlap ... [of] 13 [millimetres] and 3 [millimetres] respectively on the north or south and east or west sides of [each] cell plate."[22] And had they "been constructed to tolerance, but at the lower end of the tolerance range, the overlap on the two opposite adjacent sides would [have been] reduce[d] to 11 [millimetres] and 1 [millimetre] respectively."
At first instance, Mr Fowlie, a structural engineer, gave evidence on behalf of the appellants to the effect that, had additional diagonal steel supports been erected under each of the cell plates, those supports would have precluded dislodgment of the plates during construction. The evidence was that the total cost of those additional supports would have been approximately $2,000.

In their first ground of appeal, the appellants contend that the Full Court erred in holding that it was required to take into account whether other competent designers would have included the design measures propounded by them at first instance. The Court did not hold that it was required to proceed in that way. Rather, it held that "there [was] no evidence ... to suggest a risk of injury that would have caused a designer to embark upon [those] further measures ... bearing in mind the designer's reasonable expectation that fabrication and erection would be carried out by competent persons."[33]
Notwithstanding that the Full Court did not err in the manner set out in the appellants' first ground of appeal, the holding set out above does illustrate, as the appellants contend in their third ground of appeal, that the Full Court failed to acknowledge the difference between the duty imposed by s 24(2a)(a) of the Act and the common law duty of care. Indeed, so much is apparent from the statement in the judgment of Doyle CJ that "[i]t [was] not clear to [his Honour] what, if anything, [s 24(2a)(a)] adds to the common law obligation to exercise the appropriate level of care and skill."[34]
Once it is appreciated that the duty imposed by s 24(2a)(a) of the Act is to design a structure that is as safe for construction workers as is reasonably practicable, the critical considerations are whether there were features that could have been incorporated in the design for the benefit of those workers and whether their incorporation was reasonably practicable.
In this case, there were safety features that could have been incorporated in the design of the tower, and those features were relatively simple and inexpensive. Moreover, they would have been effective. That being so, it may well be that the evidentiary burden shifted to Lurgi to establish that those measures were not reasonably practicable because, for example, it could not reasonably have anticipated the possibility that, in the construction of the tower, there might be a departure from the specified dimensions and tolerances to the extent necessary for a cell plate to become dislodged. However, that is not a matter that should now be explored.
The Full Court erred in its failure to appreciate the extent of the duty imposed by s 24(2a)(a) of the Act. The question whether there was a breach of that duty is, as already indicated, a matter for judgment having regard to all the facts. Those facts were not fully explored in argument in this Court. Moreover, as a general rule, the question whether there was a breach of duty is not one that is appropriately asked of a final appellate court. That question raises no point of legal principle and as the answer depends on the facts of the case, it can have no real value as a precedent. Accordingly, although the appeal should be allowed with costs, the matter should be remitted to the Full Court to be determined in accordance with law. The costs of the earlier proceedings in the Full Court should abide the further decision of that Court.

Mr Slivak and a co-worker Mr David Lloyd gave evidence of the circumstances of the accident. Mr Lloyd said that he and another worker, Mr Frost, had previously used a chain block attached to the western wall of the tower surrounding the cell plate and the cell plate itself, a dog and wedge, and a scaffold plank as a lever, to adjust the alignment of the north-western cell plate. An hydraulic mechanism, a porta-power, which may be placed between two surfaces and hydraulically expanded, was also used. Once the cell plate was in position, Mr Frost tack-welded it to the support frame.
On the following morning, Mr Lloyd joined Mr Slivak in an attempt to repeat, with the south-western plate, the procedure that he had followed with Mr Frost the day before.
Mr Lloyd said in evidence that the second plate needed to be moved 25 - 30mm in a northerly direction. To do this he and Mr Slivak put a scaffold plank in the space. Mr Slivak then placed a timber bearer behind the plank to provide a fulcrum so that Mr Lloyd could apply pressure to the plank to move the cell plate. He said that the cell plate moved suddenly inwards, and dropped downwards so that it no longer provided support. Mr Slivak fell, and was consequently seriously injured.
At the time of the trial Mr Slivak relied upon the evidence of a structural engineer, Mr Fowlie, whose opinions were based upon contemporaneous statements from Mr Slivak and witnesses to the accident, the construction and site survey drawings, and the specifications for the erection procedure prepared and issued by Lurgi. There was no challenge to the reliability or relevance of these materials by Lurgi.
In evidence Mr Fowlie made comments on the dimensions of the structure which he described in detail. Each cell plate, he said, was designed to be continuously supported on each of its edges by steel work supports, either directly attached to the external wall of the filter structure on two adjacent sides, or by cross frames spanning the mid-lengths of opposite sides of the filter structure on the other two adjacent sides. Each plate was to be welded, on site in position, once it had been located and aligned on the supporting steelwork. Each cell plate was constructed from two sub-plates site-welded together before erection. Connexion of the sub-plates was to be effected by welding, on the ground, to a common steel stiffening plate.
Mr Fowlie pointed out that cut-offs were provided at all but the external corners of each cell plate. He then made these comments[39]:

He said that in view of the small margins for the successful alignment of the cell plates on their supports as set out in the engineering drawings and apparently confirmed by site survey measurements taken after the incident, a "straightforward, inexpensive preventative measure to preclude dislodgment of the plates during the alignment and welding operations might have been the inclusion of additional supporting members, located diagonally across the corners of, and connected to, the documented cell plate support steelwork.[41]"
Prior J found that the cell plate fell because it ceased to be supported on at least two adjacent sides. The evidence did not however explain precisely how the cell plate came to be in that position. His Honour accepted that it was the action of pushing against the southern wall which moved the angle iron support outwards causing loss of support to the cell plate on that side, and that both Mr Slivak and Mr Lloyd must have overlooked that the cell plate was not supported, or only marginally supported, on either its eastern or western side.
His Honour also found that had the cell plate and its support structure been constructed according to design and, the cell plate so placed in the support structure that on two adjacent sides the maximum possible overlap of 40mm was used, the cell plate would still have been supported on each of the two opposite sides. The cell plate support structure had not been constructed according to Lurgi's design. In particular, instead of the space measuring 4647mm north-south, it measured 4650mm on its eastern edge and 4658mm on its western edge. Furthermore, because of the bowing of the southern wall as constructed, the space there was up to 21mm more than design. Again the east-west dimension was not in accordance with design. It was up to 14mm more than it should have been. As for the cell plate, whilst it was constructed as designed on the north-south axis, it was up to 3mm beyond tolerance on the east-west one. For the cell plate to fall it had to be unsupported on either its western or eastern edges as well. "It could only have been placed in such a position because the cell plate support structure had not been constructed according to design… All of these matters clearly establish fault [on the part of Mr Slivak's employer]."[42] Prior J summed up his conclusions which were clearly open on the evidence in this passage[43]:

Mr Slivak's notice of appeal was not confined to the statutory cause of action and the evidentiary points taken in support of it. Even a slight risk or chance of injury was sufficient, Mr Slivak submitted, to require that the designer "include [such safety] design elements which were practicable".
Mr Slivak's case in negligence was, in my opinion, bound to fail. Some of the matters relevant to that issue are also relevant to the issue of breach of statutory duty. In a sense it is true that nothing is more foreseeable than human error, but foreseeability[47] is not enough to sheet home liability under that head. Furthermore, it may well be asked, how much error should have been foreseen and anticipated by a careful designer. Should an architect specify a component of an additional ten percent of cement in a concrete wall panel on the basis that a contractor might negligently or wilfully omit some of that ingredient? Is ten percent, or five, or fifteen, the right tolerance? The fact that design measurements do themselves descend to millimetres is in my opinion, itself a clear indication that precision is intended, important, and requiring of strict adherence. The primary judge and the Full Court were therefore right to dismiss Mr Slivak's case in negligence.
I turn to Mr Slivak's submission made in this Court in reliance on the statutory cause of action. I would accept that the sub-section certainly does impose a higher duty upon a designer than the common law. The words "must ensure" produce that consequence[48]. However the statutory duty is still not an absolute one. What the designer must do is to ensure that the safety of erectors is protected "so far as is reasonably practicable".
The phrase "reasonably practicable" has been construed in the United Kingdom. In Marshall v Gotham Co Ltd[49] Lord Oaksey said: "what is 'reasonably practicable' depends upon a consideration whether the time, trouble and expense of the precautions suggested are disproportionate to the risk involved."[50]
Lord Reid put the matter this way[51]:

With respect to expense and trouble the evidence was one way. Provisions for a greater tolerance to reduce the risk of injury could readily have been made at an additional expense in construction of a few hundred dollars for each cell plate. But those are matters which operate as much in Lurgi's favour as they do in favour of Mr Slivak. The cost would not have been a cost to the designer but to the erector. The small cost of precise compliance, or the provision of greater tolerances, meant that the erector had no incentive by way of cost cutting to err on the side of reduced tolerances. Accordingly it would not have been unreasonable for the designer to take the view that the fabricator and erector would be unlikely, in order to save money, to reduce the tolerances to the point of creating a serious risk to the safety of the workmen.
In my opinion, by designing a structure and the procedure for its erection, with tolerances within reasonable bounds, and which the expert accepted, if constructed in accordance with the designs would work satisfactorily, and could be constructed safely, Lurgi did comply with the Act. By so doing, the designer, as opposed to the erector did ensure, so far as was reasonably practicable, the safety of Mr Slivak. Reasonable practicability does not contemplate or require infallibility. A designer is entitled to expect, and indeed assume, that its specifications will be adhered to closely, indeed even minutely, when tolerances descending to millimetres and the safety and welfare of workers are involved. In short, not only matters of time, expense and trouble, but also what may reasonably be expected of others are relevant matters. How the erector may reasonably be expected to act is simply one of the circumstances to be taken into account in determining whether in all of the circumstances, the designer has ensured the safety of workers undertaking the erection, so far as is reasonably practicable.
Mr Slivak also argued that Lurgi bore the onus of showing that it had complied with the Act. He invited the Court to adopt the decision, and reasoning of the majority, of the House of Lords (Lords Guest, Upjohn and Pearson; Lords Reid and Wilberforce dissenting) in Nimmo v Alexander Cowan & Sons Ltd[52] and Kingshott v Goodyear Tyre & Rubber Co Australia Ltd (No 2)[53] (Kirby P and Priestley JA; McHugh JA dissenting on this point), in which it was held that the employer carried the onus of proving compliance with the provision.
In Nimmo, Lord Guest, who was in the majority, was influenced by the fact that the statutory provision there was enacted by Parliament in the knowledge that judicial opinion current at that time favoured the view that the onus of proof lay upon the employer[54]: That had certainly been the trend of authority in the United Kingdom until that time but that those authorities had not escaped criticism as his Lordship himself observed[55].
Lord Upjohn referred in Nimmo to a policy consideration, that he could not believe that Parliament intended to impose upon an injured worker, or, if deceased, his or her next of kin, the obligation to prove with particularity the manner in which the employer should have employed reasonably practicable means to make and keep the workplace safe[56]. An underlying consideration was that the proof of a negative will usually be much more difficult than the proof of an affirmative. There will often be, and I think that there is in this instance, a problem about reliance upon a policy consideration as an aid to the resolution of a legal problem[57]. Whatever may have been the position in the United Kingdom in 1968, it might be an unsafe assumption to make in this country, at this time, that the resources, whether provided by the plaintiff, his or her union, or entrepreneurial plaintiffs' lawyers who today frequently act on a speculative basis, that might be deployed in litigation by a plaintiff, would not be as substantial and potent as those available to a defendant. It would be an equally invalid assumption to make that all or most defendants, would surely have the means to defend cases brought against them adequately. I would think that there would, in this country, be many small and perhaps struggling firms of employers, professional draftsmen, architects and engineers to whom litigation, or insurance in respect of it, would be a considerable financial burden.
Lord Pearson[58] in Nimmo adverted to a consideration which I think persuasive, that if legislatures intend to impose the burden of proof on defendants all doubt may be resolved by using unambiguous expressions to that effect. Nonetheless his Lordship there on balance thought that countervailing considerations should prevail and was of the opinion that the defendant did bear the onus. For myself, I would prefer the dissenting opinions of Lords Reid and Wilberforce, the former of whom said[59]:

Slivak v Lurgi

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