Determining Duty: Scope and Content Revisited - Kuhl v Zurich Financial Services Australia Limited [2011] HCA 11

Judgment date: 4 May 2011

[2011] HCA 11

High Court of Australia1

In Brief

The High Court was asked to reconsider the question of whether a contractor on site owed a duty of care to the employee of another contractor and how the content and scope of that duty of care should be formulated. The High Court was also asked to consider whether the evidence of how Mr Kuhl was injured was sufficient to establish that his injuries were causally related to the breach of duty.

Background

On 19 November 1999, Geoffrey Lawrence Kuhl (Kuhl), the appellant in each of the appeals, suffered injury during the course of his work at a plant owned and operated by BHP Billiton in Port Hedland, Western Australia. Kuhl commenced employment with Transfield Construction Pty Limited (Transfield) in September 1999. He was employed to clean the reactor grid floors at the plant. Those performing this task were known as "reactor rats". The reactors cooked "fines" which were small pieces of iron ore. The cleaning of the plant involved, amongst other things, using a high pressured vacuum hose to clean the waste. The vacuum hose was attached to a vacuum truck.

Kuhl commenced proceedings against his employer, Transfield, but the claim was statute barred. Kuhl also commenced proceedings against WOMA (Australia) Pty Limited (WOMA) which was a deregistered company insured by Zurich Financial Services Australia Limited; and, Hydrosweep Pty Limited (Hydrosweep) which was also a deregistered company in place of which its insurer, QBE Insurance (Australia) Limited was sued.

Transfield had supervisors on site who would allocate work to each of its employees and conduct safety meetings prior to each shift commencing. Prior to each shift the workers were required to complete a job safety analysis (JSA).

There were 2 vacuum hoses in use to clean the reactor grid floors. One of those vacuum hoses was owned by WOMA with the second being owned by Hydrosweep. Hydrosweep provided a vacuum truck and 2 operators to WOMA for a 4-week period in November 1999 for use at WOMA's direction. WOMA would set up the equipment and supply 2 operators for the cleaning. One of the operators would operate the truck and the other would check and maintain the vacuum hose. WOMA would also assist in clearing any obstructions in the vacuum hose when Transfield employees were unable to do so. Both Kuhl and another reactor rat gave evidence that on-the-job training on the use of the vacuum hose was provided by WOMA employees.

The vacuum hose was between 4 and 6 inches in diameter. Kuhl described the hose as being flexible but awkward to use. It was not fitted with a handling device and lacked any relevant safety features.

At about 4.30 am on 19 November 1999, a blockage occurred in the vacuum hose. Kuhl exited the reactor and attempted to free the blockage. When he was unable to do so, Mr Kelleher (Kelleher), who was an employee of Hydrosweep, assisted Kuhl with the clearing of the blockage. Kelleher made a gesture to Kuhl that was interpreted by Kuhl that he had cleared the blockage and then he passed the hose back to Kuhl. At some point shortly after the hose was passed back to Kuhl his left arm was drawn into the hose becoming caught in it.

Kuhl and Kelleher were eventually able to extract Kuhl's arm. Kuhl sustained injuries to his arm.

At the hearing Kuhl gave evidence that Kelleher had passed the hose directly to him. He further stated that "I moved it a bit to the side to grab it as it was the only way to do it and the next thing my arm was gone ..."

Kelleher gave evidence that he was directed by WOMA in relation to the system of work he was to follow. He recalled that he had unsuccessfully attempted to unblock the hose before passing it back to Kuhl. He was not able to describe how Kuhl's arm became caught in the hose other than to say that he passed the hose sideways but in front of Kuhl with the suction directed away from Kuhl.

The evidence at trial was that blockages frequently occurred in the...