Schellenberg v Tunnel Holdings Pty Ltd P39/1999 [1999] HCATrans 435 (19 October 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P39 of 1999

B e t w e e n -

PETER SCHELLENBERG

Appellant

and

TUNNEL HOLDINGS PTY LTD

Respondent

GLEESON CJ

GAUDRON J

McHUGH J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 19 OCTOBER 1999, AT 2.48 PM

Copyright in the High Court of Australia

MR E.M. HEENAN, QC: May it please your Honours, I appear with my learned friend, MR D.M. BRUNS, for the appellant. (instructed by Yesner & Company)

MR J.R. CRIDDLE: May it please your Honours, I appear with my learned friend, MR H.M. O'SULLIVAN, for the respondent. (instructed by J.R. Criddle)

GLEESON CJ: Mr Heenan?

MR HEENAN: Your Honours, in commencing his judgment in Anchor Products Limited v Hedges in 1966, Justice Windeyer said at page 496 of 115 CLR:

One thing can certainly be said of the phrase res ipsa loquitur. That is that it has not been allowed to speak for itself. It has not been left undisturbed as Erle C.J. states it, simply, in Scott v. London and St. Katherine Docks Co. For years courts and commentators have been engaged in elaboration and exposition.

KIRBY J: Mr Heenan, I am sure that that was a wonderful passage of scripture with which to begin your address, but I only picked up every third word. The acoustics in this room are not particularly good. For myself, I think it would be better if each counsel addressed from the central podium, because then it distributes more easily. If that is not inconvenient to you, it may be a factor of my going deaf, but it is important I hear you.

MR HEENAN: If we could have a few seconds to do that, your Honours, we would be very happy to accommodate the Court.

KIRBY J: I promise to read the passage in the transcript?

MR HEENAN: Yes, I shall not repeat it.

GLEESON CJ: Mr Heenan, I did not understand there to have been any difference between the trial judge and the members of the Full Court concerning the principles to be applied.

MR HEENAN: Well, your Honours, when one comes to look at the general approach to principles, one might get that impression, but there were some distinct peculiarities, and they only emerge from seeing the significance of the evidence in the light of the issues as they were contested at the trial. So the technical formulation of the doctrine may appear to be satisfactory, but the matter seized upon - particularly in the Full Court - for rejecting its application, in our respectful submission, reveal error and preoccupation with the elaboration of the detail. Can I attempt to demonstrate that in a moment, but first make the submission that this litigation reveals the problems of treating the doctrine of res ipsa loquitur as a separate identifiable doctrine with special rules and restrictions conditioning its application. We submit that that is what occurred in the Full Court, but it is something which began at the trial and the problem is that the courts below seemed to have assumed that there was a mutually exclusive dichotomy between the pleaded case for negligence, as presented by the appellant, and the role of the maxim, instead of treating them as part of one continuum of relevant evidence from which conclusions and inferences could be drawn.

Can I just indicate what we say are the peculiarities in the application of the doctrine, first as it emerged at the trial, and then in the Full Court. Your Honours will have noted that at the trial before Judge Muller in the District Court there was an adjournment to deal with introduction of a case relying on res ipsa loquitur almost at the close of the evidence for the defendant. What had happened was that the case began dealing with the pleaded allegations of negligence in the statement of claim which, at that point, did not include the particular relating to res ipsa loquitur which can be found in the appeal book at page 3. Your Honours will see that paragraph 5 is the allegation of negligence, paragraph 6 glories in a separate identity, but his allegations of particulars of negligence, and then there are a series of pleadings down to subparagraph (i), with subparagraph (j) being dealt with later.

That amendment was introduced because nearly by the end of the evidence for the defendant, his Honour raised with counsel the question of whether or not the plaintiff was entitled to make what his Honour referred to as a general allegation of negligence. Counsel for the plaintiff replied by saying that he intended to do that, had advanced submissions in relation to a case on res ipsa loquitur in his written materials, and believed himself entitled to make such a case without it being especially pleaded. There was an exchange between the Bench and counsel, and his Honour indicated that such a case appeared to be open on the evidence, but it had to be especially pleaded, and his Honour made reference to a series of cases, Bullen & Leake and a number of other cases from which he inferred that there was a distinct obligation to plead the case and then adjourned the trial to allow that to be done. An application was made to introduce subparagraph (j). As we have seen, leave was granted. Then, somewhat surprisingly, perhaps, the parties were granted leave to reopen and call further evidence. As a result the - - -

KIRBY J: Was that done without objection?

MR HEENAN: It seems to have been done by consent on both sides, your Honour. The expert engineer, Mr van der Meer, for the plaintiff appellant, gave supplementary evidence, including the supplementary report. The plaintiff, Mr Schellenberg, was recalled and gave some evidence dealing with the issue of whether or not the air hose was noticed to be whipping around on the floor of the factory after the accident, connoting that if it was, the accident would have happened in a particular way. Both were cross-examined and then the defendant called an expert, Dr Chew, another engineer, who gave oral evidence and documentary evidence concerning his theories about how the accident apparently happened. During the course of cross-examination of Dr Chew - this witness for the defendant as I have mentioned - counsel for the plaintiff sought to cross-examine him on issues arising from the pleaded particulars of negligence, but was stopped by the learned trial judge on the basis, it would seem, that this was outside of the scope of the leave granted to reopen the case and that the leave was confined to the so-called allegations of general negligence which seems to have been a synonym, perhaps not a precise synonym, for the doctrine of res ipsa loquitur.

So the peculiarities of the trial suggest, in our respect, some basis for the submission which we have already advanced, that the courts have treated the operation of the doctrine and the effect of the evidence of the whole as two mutually exclusive categories, and have dealt with the case for negligence as if it were discrete, and then the case for res ipsa loquitur as if it were another separate category.

When it came to the Full Court, it seems that that approach was even more marked and if we can go briefly to the reasons for decision of their Honours in the Full Court which can be found in volume 2 of the materials, I will just make very quick, passing reference to part of their Honours' observations. Justice - - -

KIRBY J: Do you say that the proper application of the doctrine is that even if you set out to prove what was the cause of the negligence, for example, what caused the barrel to fall, that you have in reserve a submission or a particular of negligence that relies upon the fact that the whole thing speaks for itself, even though you have just tried to prove what did happen and what did cause the mishap and - - -

MR HEENAN: Yes, we do submit that, your Honour.

KIRBY J: It no doubt is a mistake on my part, but I thought that the propositions were alternative. Either you say the whole thing speaks for itself and we are not going to go into all the detail, or if you do go into the detail, then you lose the opportunity of saying the whole thing speaks for itself because it no longer speaks for itself. You have gone into the detail of the particularisation.

MR HEENAN: There is a passage in Mummery v Irvings which is often quoted to support that approach. It was explained and - - -

McHUGH J: Anchor destroyed that notion.

MR HEENAN: Yes, yes.

McHUGH J: That view prevailed in the New South Wales Bar for quite a number of years until Anchor Products v Hedges.

MR HEENAN: Yes, Anchor was the case - - -

McHUGH J: Anchor said you can attempt to prove the cause and if you fail, you can still rely on res ipsa, but the accepted doctrine still is, is it not, that once the judge accepts the explanation as to the cause, the doctrine then ceases to operate?

MR HEENAN: Perhaps that might become the point of this case, your Honour.

McHUGH J: I think it might, because you have a finding from the trial judge which might be thought to destroy the operation of the doctrine because the judge found what was the cause of this accident, but then it was said in the Court of Appeal and the Full Court that finding was not open.

MR HEENAN: Yes. That is, of course, correct, your Honour. That analysis, in our respectful submission, proceeds from this "disposition", if I may use a word that was occupying the Court this morning, to regard the doctrine and the case before the Court, as it were, as separate, distinct and exclusive, whereas we would contend that a proper appreciation of the doctrine is that it is simply a well-known and much worn example of general evidence, circumstantial evidence, and that the res continues to speak loudly or softly - - -

McHUGH J: But is it not one thing that Mummery definitely decides, that once the cause is proved, the doctrine has no application? Does not Mummery say that in terms?

MR HEENAN: Your Honour, it is a little difficult to be precise about that, and if it does say that, it is difficult to reconcile Anchor Products and the subsequent decisions with it because the indications are that if the evidence establishes a probable cause, then obviously the tribunal of fact, be it the judge or jury, is called upon to decide on all the evidence whether or not that establishes negligence. All the evidence - and this is where our case may be slightly novel - incorporates a consideration of all inferences which might reasonably be drawn from the facts.

McHUGH J: But the passage I have in mind is a well known passage at page 122 in Mummery v Irvings, about point 5 where their Honours say:

But what is the position where the plaintiff, instead of relying on mere proof of the occurrence, himself adduces evidence of the cause of the accident? It is, of course, beyond doubt that the doctrine of res ipsa loquitur will have no place in the case.

They go on to say:

This, of course, is precisely the same situation when the explanatory matter is proved by the defendant.

MR HEENAN: Your Honour, that must obviously be the case where the evidence led and the cause established leaves no room for inference because all that can be known is known; but sometimes one can identify a cause which does not speak comprehensively, which still leaves matters open to inference. Now, coming to the present case, where we have the air hose slipping off the Jamec coupling, precisely what caused that, whether it was elevated pressure within the system, whether it was a loose clip, whether it was worn serrations in the Jamec coupling, whether it was some unconscious pressure on the hose by the plaintiff as he was stretching inside the valve, it cannot be ascertained; but although one knows what happened, the immediate precipitating force may not be obvious, and it is open in those circumstances, in our submission, to infer that whatever it was was consistent with negligence on the part of the defendant. In our respectful submission, that would not offend the test in Mummery v Irvings which your Honour Justice McHugh has just emphasised. It is very much a question of what one identifies as being the cause.

But can I come back briefly to what we say a demonstration is of this approach towards elaboration on the doctrine in the Full Court. Justice Pidgeon in volume 2, appeal book page 281, says at about line 24:

In my view there were sufficient known facts which precluded his Honour, by this means, of drawing the inference of negligence.

So we are almost at the point which your Honour Justice McHugh has just stressed. At page 291, also in the judgment of his Honour Justice Pidgeon, it says at line 40 with regard to the evidence of Mr Mills, the employer's managing director, who had not, in giving evidence in the case, led any evidence of routine maintenance, inspection or safety precautions, and in the absence of which evidence his Honour the learned trial judge drew an inference, his Honour says:

The evidence had not reached the stage where the appellant was required to introduce the evidence referred to for the reason that it was not established that the happening was of a kind which does not ordinarily happen without negligence.

He then goes on to deal with other matters. The implication there is that his Honour Justice Pidgeon is dealing with a case of shifting onuses and whether or not there was any obligation on the defendant at that point of the case to adduce any evidence. Those are questions which might have been asked at that point of the case, but where the defendant did elect to go into evidence and gave comprehensive evidence and was cross-examined, the absence of any evidence on the point of routine inspections, safety precautions and so on is a matter, slight perhaps, but it is a matter which may be noted and be the subject of an inference, but again, we have a sign of resort to the elaboration on the doctrine by this elliptical reference to shifting onuses.

KIRBY J: May I ask you - I am sorry to interrupt you - but in your submissions at paragraphs 16 and 17 you refer to the decision of the Supreme Court of Canada.

MR HEENAN: Yes, your Honour.

KIRBY J: You rather, as I take it, embrace the approach that their Honours adopted there and say that it would be consistent with certain steps or decisions of this Court in other cases.

MR HEENAN: Yes, your Honour.

KIRBY J: Then you go on to ignore that thereafter and, perhaps quite understandably, deal with the matter within the framework of the res ipsa doctrine which, as you point out, has been the subject of numerous decisions of this Court. This matter is now before us. What is the category we are supposed to apply for the resolution of the appeal? Do we apply orthodox doctrine of res ipsa as propounded and elaborated in this Court? Are we being invited to apply some different doctrine of general inference from the evidence which gets rid of the Latin tag and applies some different way of reasoning? Are we being invited to look again at the shifting onuses approach, or what? I mean, I would like to know what category I am supposed to be applying before we go into the detail of the case.

MR HEENAN: Certainly, your Honour. Our position is that the correct exposition of the law has consistently been maintained by this Court since Justice Evatt's eight propositions in Davis v Bunn, certainly in Anchor Products v Hedges and that that is essentially the same as the Supreme Court of Canada in Fontaine v Insurance Corporation of British Colombia and, leaving aside questions of shifting onuses where the British position is quite distinctly and uniquely different, is essentially the same as adopted by the House of Lords in Colvilles v Devine, the case of the explosion in the blast furnace steel factory, and that it is also consistent with the position adopted by the American Restatement, in its second statement.

Perhaps I could come to that very quickly. We say, with respect, that the doctrine as applied by this Court for over 70 years has been to regard the application of the maximum as but part of the general rules of circumstantial evidence, where the onus always remains on the plaintiff, where there is no shifting burden and where such inferences as may rationally be drawn from the facts and/or the happening of the accident can be considered by the tribunal of fact, and if they reach the requisite degree of probity, that is, on the balance of probabilities, may found a judgment in negligence. But whether they do or whether they do not is always a matter for the judgement of the tribunal of fact and consistent with a prima facie case being made out on the basis of circumstantial evidence, namely inferences from proved facts and/or the event of the accident, it may or not reach, at the end of the day, a case on the balance of probabilities.

McHUGH J: One difficulty I have with your whole reliance on the doctrine is it seems to me to run counter to the most fundamental principle of all in this area, and that is that the res has to be under the control of the defendant. Here the appellant was the person who had control of the res. How can the doctrine of res ipsa loquitur apply in those circumstances, and is there any case where it has ever been held to apply in a situation where the plaintiff has control of the res, physical control?

MR HEENAN: The duty of care which gives rise to the cause of action is the ordinary common law duty of an employer towards an employee which this Court said in Burnie was one of the non-delegable duties of care. So the fact that this plaintiff is assigned the responsibility within the factory to deal with the compressed air system and the delivery of air through the hoses does not relieve the employer of a duty to provide a safe system of work or to care for his welfare.

If it is a non-delegable duty and there is some omission or act of default by the plaintiff which precipitates or contributes to the accident, that may sound in matters of causation. It may reveal that the accident was not caused by the defendant at all but rather by the plaintiff, thus eliminating any question of recovery, or it may reveal that there was contributory negligence giving rise to an apportionment. But if the defect is inherent in equipment supplied by the employer, the mere fact that the employee had the day-to-day administration and allocation of the equipment would not prevent the employer from being held liable under the non-delegable duty.

McHUGH J: All that can be accepted but it does not seem to answer what seems to my mind the basic point. If you are going to rely on res ipsa, you have to show that the res was under the control of the defendant at the relevant time. The defendant is the occupier of the barn from where the barrel falls; the defendant is in possession of the motor lorry from which the drums fall off; it is in possession of the crane which suddenly comes apart. They are all cases of res ipsa, but here your client has the very object in his possession. That does not prevent the employer being under a duty of care but I am having difficulty at the moment seeing how you can rely on the doctrine of res ipsa.

MR HEENAN: That question, your Honour, encapsulates the issue which we take with the approach of the Full Court because it assumes as its starting point, with respect, that this is a unique and distinct doctrine of finite application and certain content which can only be used in certain circumstances, one of which is where the equipment or thing is exclusively under the control of the defendant.

McHUGH J: But that has been the accepted doctrine, has it not? It may be wrong but has that not been the traditional doctrine?

MR HEENAN: We would say not entirely, your Honour, certainly not internationally. If one treats the doctrine as being part of the general rule of circumstantial evidence, the question of the exclusive control by the defendant is but one of the circumstances. Can I take your Honours to the American Restatement. We have copied passages of this. This is the second Restatement on torts.

KIRBY J: What proposition is this advancing?

MR HEENAN: That it is part of an overall rule of circumstantial evidence.

GAUDRON J: I wonder even why you say that. Why is it not part of the system of reasoning?

MR HEENAN: That observation, your Honour, is entirely consistent with Chief Justice Barwick's formulation of the doctrine in many of the cases and with Justice Evatt's formulation in Davis v Bunn and we would accept that. But the rules which are distilled in the statement are first:

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when

(a) the event is of a kind which ordinarily does not occur in the absence of negligence -

Obviously that is essential and we need to make that out.

GLEESON CJ: Do you have a finding of fact to that effect at any level in this case?

MR HEENAN: Warren v Coombes suggests that such a finding is a secondary finding of fact. It is an inference to be drawn from a set of facts - - -

GLEESON CJ: Did the trial judge draw that inference?

MR HEENAN: Yes, your Honour, and he found that the only explanation for the accident was that the hose separated from the Jamec coupling when it should not have and that that can only connote that it was insecurely fastened, and from that he inferred negligence. So, if that qualifies as a finding of negligence, it must be a finding of the Warren v Coombes variety. The second proposition is:

(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence - - -

McHUGH J: Is that not part of the problem? Does not the evidence establish that the plaintiff himself was responsible for putting the hose on the coupling or whatever it was? Did he not say that he thought it was he who had done it?

MR HEENAN: He did say that he reassembled the grinder and the hose after the accident, but I am not aware of evidence that he had - - -

McHUGH J: Only after the accident.

MR HEENAN: - - - put the hose on the coupling before the accident, your Honour. Thirdly:

(c) the indicated negligence is within the scope of the defendant's duty to the plaintiff -

Then the rules go on to deal with certain procedural matters which we need not trouble with. If we could just deal briefly with some of the comments - - -

GAUDRON J: Before you do, I wonder if I can take you to proposition (a) in the Restatement. That is stated at a level of generality which I suppose might leave one puzzled. Why could it not be said in this case, "The event is of a kind which ordinarily does not occur if the attachment is securely fastened, the equipment is maintained or a system is in place whereby people are told to check it before they use it"? Why do we put it in the level of generality other than to elevate what I would have thought was a reasoning process into what can be said to be a doctrine of law?

MR HEENAN: We accept all those observations, your Honour. Why is it formulated this way in this Restatement? Obviously because it is intended to be of broad and general application but it is, as your Honour implies, simply an example of inducted reasoning.

GAUDRON J: Would it be open to conclude in the facts of this case that the accident would not have happened if it had been properly attached, the equipment had been properly maintained, properly inspected, or there had been a system of work whereby the employee was told to check it before he used it? Could that be inferred?

MR HEENAN: We would say, with respect, it could be, your Honour, and that that, in a shorthand way, is essentially what the learned trial judge did, because - - -

HAYNE J: Could be inferred from what facts, Mr Heenan? Inference assumes a process of reasoning from one fact to another conclusion. What is the inference that you say is being drawn in this process of reasoning?

MR HEENAN: Your Honour, I will be taking the Court to some particular facts but the evidence not contested from the engineers was that this hose was attached to this coupling as part of a system for the delivery of pneumatic air power and some oil for lubrication to hand tools, that the operating pressures were somewhere between 60 or 90 and 115 pounds per square inch, somewhere between four and eight atmospheres, that the effect of the compressed air within the tube was that it caused a tendency for the hose to balloon or swell, and that it was that tendency which could by inference cause the hose to become separated from the coupling. Mr van der Meer stressed that this coupling relied - his words were that it was a friction coupling rather than a mechanical coupling and that, wherever there were friction couplings, there was a risk of failure.

There was evidence, as we shall see, from Mr Mills, the workshop manager or proprietor, that there had been two other accidents in the past in this workshop with hoses flying off pneumatic tools. They were not pursued but the implications were that there had been some kind of injury, so it was known that something like this could happen. There was also evidence both from Mr van der Meer, the plaintiff's expert, and Dr Chew, the defendant's expert, that the particular serrations on the metal insert of the Jamec coupling, like the garden hose of which the hose were fixed, were rounded and somewhat smooth indicating where, over time and also indicating how a hose could slip off under that condition. There was a piece of evidence in Mr van der Meer's second report which has gone largely neglected in the Full Court and was part of the evidence that came at the adjourned hearing and can be found at pages 212 to 213 of volume two. It is exhibit 9B. Between lines 12 and 25:

The series 310 Jamec coupling is a rather old type of coupling.

There is a lengthy - - -

HAYNE J: I am sorry, what page?

MR HEENAN: Page 213, your Honour. The exhibit commences on 212 but the passage is at 213:

The Australian distributor does not recommend the use of this type of coupling directly to hand operated air tools where the air tool is subject to a great deal of rotational movement. This type of movement causes increased wear of both the Jamec coupling and the adaptor which is screwed to the air tool. The engaging clip on the Jamec coupling is made from mild steel and the adaptor is made from brass. These two metals wear at approximately the same rate.....

The fact that this type of coupling can be subject to wear means that they should periodically be tested and replaced if it is found that the amount of wear reduces their effectiveness as a safety device.

This is a long and somewhat rounded-out way of addressing the questions raised by Justice Gaudron and Justice Hayne that there is this evidence capable of acceptance by the learned trial judge which can lead to a process of reasoning that an accident of this kind would not happen unless the coupling had become worn or ineffective or the fastening was insecure or loose.

GLEESON CJ: When you say the fastening was insecure, in one sense that is a statement of the obvious. If the fastening had been secure, it would not have become unfastened. But what we are looking for is evidence from which one can infer that this kind of thing does not happen without fault. That is the first of the propositions stated in the Restatement here. How does a court know that an event is of a kind that ordinarily does not occur in the absence of fault?

MR HEENAN: Perhaps that is why the maxim has gained such an individual identity because, like the flour barrel falling from the attic, the general experience of mankind is that such an event does not happen or should not happen without fault.

KIRBY J: My problem is I have never seen one of these machines. I hardly ever leave my Commonwealth Law Reports and I just have no idea what one of these blowing machines looks like or how it operates.

MR HEENAN: Your Honour, the Court will not be helped - - -

KIRBY J: I do not even see tyres of motor cars pumped up. That is done by Commonwealth drivers.

MR HEENAN: These were tasks which were originally committed to common juries.

GAUDRON J: That is why he is an appellate judge, not a trial judge.

MR HEENAN: Perhaps it is a long time since your Honour served on a jury.

KIRBY J: Well, I jest, but that is the problem. I mean, a barrel falling from a second storey window is one thing but, if one should get into more detail, then it is rather more difficult for judges to assume knowledge. Take, say, a biochemical factory. You are going to get to a point where no judge in the world will know exactly what goes on unless they happen to have had a view or been to the factory. So there is a spectrum here but, once you get into hydraulics, I am a bit lost, I have to say to you.

GAUDRON J: If I may intrude here, why do we need to? An employer's duty is to provide a safe system of work. The evidence is that these couplings can wear loose by reason of the nature of them and if they do wear loose are a hazard, a distinct risk to - why is it not therefore inferred that in all probability they would not pose this risk if they were regularly inspected and/or maintained or there were a system in place whereby the user was instructed to check the stability of the coupling before use? Why can one not infer that?

MR HEENAN: Your Honour, the answer that we would give to these questions is that being circumstantial evidence, it all depends upon the circumstances of the particular case. There will be accidents of a kind where the cause is so esoteric that the general experience of mankind is not enough to draw upon to reach an inference of fault, whereas there will be others where the evidence or the fact of the circumstances are sufficiently plain and obvious to allow a reliable, practical conclusion to be drawn. In the field of medical negligence, for example, there might be no scope for a conclusion that using a particular anaesthetic on a particular patient with particular susceptibilities is unreasonable and negligent.

KIRBY J: No, but leaving a swab inside obviously - - -

MR HEENAN: But leaving a swab inside would be.

KIRBY J: With Justice Gaudron's question, is not the problem that for all I know, with a pump of this kind, that you could have all the inspections in the world but not be able to detect the particular cause why, on a particular occasion, it had reached the point that it was going to fly off? That presumably is why you went to all that trouble to try to prove why it did fly off with negligence.

MR HEENAN: Part of the provision of a safe system of work would be to provide equipment that would not fail if its defects were not readily detectable.

KIRBY J: This is strict liability, then. We are in the realm of strict liability, where it is not enough to impose it on landlords; we are now going to impose it on employers.

GAUDRON J: Well, they do have an obligation to provide a safe system of work. I wonder why anyone ever analysed this case in terms of res ipsa loquitur. I wonder why it is not simply a question of whether, in the face of the evidence from Mr van der Meer and in the context of what is not an absolute duty but nonetheless extends to providing a safe system of work and the evidence is that they can come loose and that they have in fact worked loose, why one does not say, not res ipsa loquitur, but why one does not simply infer that a proper system would have eliminated the risk.

MR HEENAN: Indeed, your Honour.

GAUDRON J: Without any talk of res ipsa loquitur.

GLEESON CJ: Is that not the case you fought and lost at the trial?

MR HEENAN: With respect, no, your Honour. The case which was conducted at the trial was of a particularly limited kind.

GLEESON CJ: You first of all set out to try and prove that the explanation of this accident was that there was a garden hose instead of a proper hose attached.

MR HEENAN: Yes.

GLEESON CJ: That was the focus of Mr van der Meer's first report and that failed as a matter of fact.

MR HEENAN: Yes, it did, your Honour. It is important to identify the way that the case was fought at trial. Leaving aside the particulars of negligence in the statement of claim, the way the case was fought and conducted at trial was, as his Honour the Chief Justice has indicated, first, that it was a garden hose and not a suitable reinforced pneumatic pressure hose; second, that there should have been a velocity fuse inserted in part of the pneumatic system to prevent the blow-out of air if there was a sudden break; thirdly, that the valve should have been positioned differently so that the plaintiff could have had horizontal access rather than vertical access; and fourth, there was a rather amorphous case that there was something wrong with the Jamec coupling assembly components.

HAYNE J: Did the plaintiff ever run a case at trial of want of sufficient inspection or maintenance?

MR HEENAN: Not in those terms, your Honour.

GLEESON CJ: Who was the person who was responsible for doing the inspection and maintenance?

MR HEENAN: The answer is the employer.

HAYNE J: Through the medium of the plaintiff in fact, was it not?

MR HEENAN: That was never explored, your Honour.

HAYNE J: Is not the res ipsa loquitur case that you seek now to support a case which has at its heart a conclusion about want of proper inspection and maintenance? That is, this would not have happened had the employer had in place a sufficient system of inspection and maintenance.

MR HEENAN: That is certainly part of the case, your Honour, but is by no means the sole basis. One can have equipment which will eventually fail simply because it has a limited reliability or limited lifespan and the defects may not be discoverable on inspection. All that may mean is that a reasonable employer should discard that equipment before it becomes - - -

HAYNE J: Inspection, maintenance and lifespan, Mr Heenan, seem to me not to raise separate questions in principle.

MR HEENAN: But they do go to where the duty lies, your Honour, because if the inspection would be inadequate or unreliable to reveal the defect, it may be that the duty of care requires periodic discarding and replacement.

HAYNE J: Did you seek to maintain a case at trial that these machines have a life of X hours of use, at which point they ought, if you are a careful employer, to be replaced?

MR HEENAN: It was certainly never put in those terms, your Honour, but so much is implicit in the report of Mr van der Meer that the coupling can become worn and unsafe, connoting that at some point it needs to be discarded. But, your Honours, all these questions are directed to the essential components of the doctrine.

HAYNE J: No, if I may say so, Mr Heenan.

MR HEENAN: I am sorry, your Honour.

HAYNE J: Are not some of these questions, at least, directed to what may be some ambiguity when you speak of the cause of the accident? At one level the cause of the accident was the hose separated. At the next level the hose separated because it seems possible that the coupling had worn and become inefficient, but the relevant cause for which we seek is negligence on the part of the employer which was a cause of the plaintiff's injury. Do we not have to get it down to identifying something, some act or omission on the part of the employer, that was a cause?

MR HEENAN: That is certainly the approach favoured by Justice Ipp in the Full Court and his Honour seems to have joined in the judgment dismissing the appeal on the basis that no such identifiable negligent act or omission was alleged or proved, but the answer that we make to that approach is that it leaves no scope for inference from an incomplete state of knowledge and, if the situation is that all investigation will reveal is that this hose separated in the manner the learned trial judge found and that the ordinary experience of mankind is that this ought not happen and in the background there are these indications, none of which are complete in themselves, that perhaps the thread was worn, perhaps the tool was old, perhaps there was pressure which caused the hose to swell, all of which lead to the conclusion that it was insecurely fastened and became unattached when it should not have, it then gets to the point where the tribunal of fact has to draw the secondary inference of negligence or no negligence.

GLEESON CJ: You said the ordinary experience of mankind is that this ought not to happen. Do you mean the ordinary experience of mankind is that this does not happen without somebody's fault?

MR HEENAN: Yes.

GLEESON CJ: Well, how do you know that?

KIRBY J: Especially if you do not know anything about couplings and hoses and other such practical things.

MR HEENAN: First of all, it is appreciated that it can occasionally happen. It happened twice in this workshop since it was established some time in 1986 or 1989. It has the capacity to harm. It can be prevented by inferentially - - -

GAUDRON J: The risk, at least, can be minimised inferentially.

MR HEENAN: Yes, by more regular maintenance or inspection or replacement of the tools and then it becomes a matter of judgment whether that connotes negligence.

GLEESON CJ: Now, in this case, did the plaintiff set out to make a case that said this was the system of inspection and maintenance that was applied in this factory and, perhaps by expert evidence, that is an inadequate system of inspection and maintenance?

MR HEENAN: No. That case was not attempted.

GLEESON CJ: And was part of the reason that case was not attempted that the plaintiff himself was the person who was directly responsible for the system of maintenance and inspection?

MR HEENAN: I cannot answer for those who conducted the case, but I suggest that it is more probable that the reason why it was conducted that way was that the plaintiff's belief, which turned out to be wrong, was that it was a garden hose and not - - -

GLEESON CJ: Yes, exactly. That was the main case the plaintiff was setting out to make and that failed.

MR HEENAN: Yes, and one was left with the fact of this detachment of the hose which ought not to have happened and then there was an inference to be drawn as to whether or not that was consistent with negligence or not. His Honour drew the inference and, by a species of reasoning, drawing on what is thought to be indispensable criteria in the operation of a maxim, the Full Court has held that that inference was not open to him. In our respectful submission, that is erroneous. It was an inference open in the circumstances. It was for the tribunal of fact to decide whether or not to draw it. Having drawn it, unless it could be said to be plainly wrong or not supported by the evidence, it ought, in our respectful submission, to have stood.

GLEESON CJ: I cannot see anywhere in the reasoning of the trial judge where he finds that this is an event of a kind that ordinarily does not occur in the absence of fault. I can see where he raises the question but I cannot see where he answers it.

MR HEENAN: The short response to your Honour's question is that his verdict answers it.

GLEESON CJ: Because if he had given a more direct answer, he might have had to point to the evidence on which he relied for that answer.

MR HEENAN: That is one possibility, but another possibility is that it is an inference which can be drawn from the circumstances. May I go back to the restatement.

GLEESON CJ: Yes.

MR HEENAN: I was about to go to the second page dealing with the comments and in the second paragraph is the passage:

In its inception the principle of res ipsa loquitur was merely a rule of evidence, permitting the jury to draw from the occurrence of an unusual event the conclusion that it was the defendant's fault.

Then they go on to deal with how the doctrine could become confused with an earlier rule relating to a shifting onus. Then, coming to "Circumstantial evidence" in subparagraph b, the authors write:

Negligence and causation, like other facts, may of course be proved by circumstantial evidence. Without resort to Latin the jury may be permitted to infer, when a runaway horse is found in the street, that its owner has been negligent in looking after it; or when a driver runs down a visible pedestrian, that he has failed to keep a proper lookout. When the Latin phrase is used in such cases, nothing is added. A res ipsa loquitur case is ordinarily merely one kind of case of circumstantial evidence, in which the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant's relation to it.

And over the page, towards the end of paragraph c, about - - -

KIRBY J: Just interrupting you there for a moment. I have not read the Supreme Court of Canada. Is that basically what their Lordships said in that case? Do not be distracted for the moment; just tell me is that the line they took?

MR HEENAN: Essentially it is, your Honour.

KIRBY J: Yes.

MR HEENAN: They have said that the maxim is more of a hindrance than a help because it diverts attention away from what is essentially a process of inferential reasoning. Can I come to Fontaine's Case after I have dealt with the restatement.

KIRBY J: Yes, thank you.

MR HEENAN: On page 158 in the first paragraph at about point 2 of that page:

In general, such decisions have tended to be confined to defendants who have undertaken a special responsibility toward the plaintiff, as in the case of the carrier and the passenger. A few courts consistently define "res ipsa loquitur" as limited to such situations, and as having the greater procedural effect. Such courts have usually been compelled to recognize, under another name, the principle of circumstantial evidence stated in this Section.

Now, if anyone is disposed to take a strict view of the doctrine, particularly one where there are shifting onuses, then of course one has to limit and constrain the doctrine because, if one does not, it will change the burden of proof where it ought not alter. But if we can continue with the restatement and turn over several pages to page 160 commenting on clause (b) subparagraph f:

Eliminating other responsible causes. It is never enough for the plaintiff to prove that he was injured by the negligence of some person unidentified. It is still necessary to make the negligence point to the defendant. On this too the plaintiff has the burden of proof by a preponderance of the evidence; and in any case where there is no doubt that it is at least equally probable that the negligence was that of a third person, the court must direct the jury that the plaintiff has not proved his case. Again, however, the plaintiff is not required to exclude all other possible conclusions beyond a reasonable doubt, and it is enough that he makes out a case from which the jury may reasonably conclude that the negligence was, more probably than not, that of the defendant.

So, one can have an issue in a res ipsa case as to whether it is the negligence of the defendant or some other person and if one gets no further than a 50 per cent chance that it is one or the other, the case will fail. But if the inference coming from the occurrence of the accident is sufficiently strong pointing to the defendant, that will allow the maxim to apply and judgment to follow and that may not, perhaps, be generally recognised.

HAYNE J: Do you support or challenge the reasoning that appears in this extract from the restatement at pages 158 to 159c and d where the authors discuss the type of event, in particular they say at line 4 in the paragraph c:

There are many types of accidents which commonly occur without the fault of anyone. The fact that a tire blows out.....is not, in the absence of anything more, enough to permit the conclusion -

and then under letter d, describe the way in which that conclusion may be drawn or based.

MR HEENAN: No. We accept that, your Honour, and decisions of this Court, notably Piening v Wanless, where there was the motor car accident where there was the steering failure, is an example of this very thing.

HAYNE J: In particular, do you challenge what appears under d, that if these things lie beyond general knowledge:

expert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the inference.

But it seems to me to follow that, absent expert evidence and absent general knowledge, there is no warrant for applying the chain of reasoning involved.

MR HEENAN: There again, your Honour, it depends on the circumstances of the particular case. I do not wish to appear evasive in this way but the decision of the House of Lords in Colvilles Ltd v Devine [1969] UKHL 11; (1969) 1 WLR 475, which is in our written submissions, is a good example of this. This is the explosion in the steel-making factory and the plaintiff was injured when he jumped from one platform to another trying to escape when there were imminent explosions in the steel converters, and there was a theory propounded that what had caused the accident was an absence of filters in the oxygenation system.

The steel was purified by venting oxygen through it and the oxygen pipes have filters in them to prevent particles of dust and other subjects running through, because if particles of dust get superheated in the oxygen stream they can ignite and there can be an explosion. There was an inference that perhaps that is what occurred but it was never established affirmatively and their Lordships did not require either expert evidence or proof that the accident happened in that way. It was sufficient that in the experience of mankind steel plants did not have major explosions threatening life and limb to the workers without negligence on someone's part.

So, your Honour, resort to a rule that in certain cases one cannot infer negligence unless there is expert evidence may be a sound proposition for a particular case but we submit it cannot be justified as a rule of general application.

GLEESON CJ: Take the example given in the restatement of the blow-out of a tyre. An employer has a duty to provide a safe system of work. Suppose an employee driving a vehicle owned by an employer is injured because the tyre of the vehicle blows out. If you can take at face value and is correct what appears in the restatement, that would not provide a case of res ipsa loquitur. It may be, for example, that the employee could make out a case by proving the actual system of maintenance and inspection of tyres in that workplace and demonstrating, by expert evidence or otherwise, that it is a deficient system.

MR HEENAN: Yes, exactly, your Honour, and the reason for that is that the res, namely, the blowing out of the tyre, is too equivocal to justify condemnation as negligence according to the general experience of mankind because it is known that tyres can blow out for many reasons. But if a slightly different example were posed that driving along a road the petrol tank suddenly burst into flame, that may be entirely a different matter because that would be such an exceptional thing that an inference of negligence may be open.

But coming back to the restatement and going on to paragraph f on page 160, and returning somewhat tardily to a question posed by Justice McHugh, the paragraph deals with:

Eliminating other responsible causes. It is never enough for the plaintiff to prove that he was injured by the negligence of some person unidentified. It is still necessary to make the negligence point to the defendant.

I think I read this paragraph.

GAUDRON J: The critical thing for your argument, I should have thought, was in paragraph e:

It is enough that the facts proved reasonably permit the conclusion that negligence is the more probable explanation.

MR HEENAN: Yes.

GAUDRON J: That is the critical part of your case, is it not?

MR HEENAN: Yes, and that is simply an example of reasoning by inference, whether or not a particular inference may be drawn. One does not need decisions of the House of Lords or the Supreme Court of Canada or the High Court of Australia to tell one whether or not a certain step can be taken in a process of logical reasoning. One can detect a fault if it occurs, but it is for the tribunal of fact to decide whether or not an inference can be drawn. Surrounding the maxim with all these rules distracts attention from this essentially deductive process. Now that I have found the passage that I was looking for on page 161, the "Defendant's exclusive control", perhaps your Honours could come to that. Halfway down the first paragraph:

Usually this is done by showing that a specific instrumentality which has caused the event, or all reasonably probable causes, were under the exclusive control of the defendant. Thus the responsibility of the defendant is proved by eliminating that of any other person.

It is not, however, necessary to the inference that the defendant have such exclusive control; and exclusive control is merely one way of proving his responsibility. He may be responsible, and the inference may be drawn against him, where he shares the control with another, as in the case of the fall of a party wall which each of two landowners is under a duty to inspect and maintain. He may be responsible where he is under a duty to the plaintiff which he cannot delegate to another, as in the case of a landlord who leases premises dangerous to persons on the public highway, which his tenant undertakes to maintain.

Then, further on towards the end of that paragraph:

Exclusive control is merely one fact which establishes the responsibility of the defendant; and if it can be established otherwise, exclusive control is not essential is not essential to a res ipsa loquitur case.

With respect, we would adopt that process of reasoning and it does, in our respectful submission, have persuasive course. Finally, in the restatement on page 163 subparagraph i:

Eliminating the plaintiff. The inference of negligence does not point to the defendant until the plaintiff's own conduct is eliminated as a responsible cause. Where the evidence fails to show a greater probability that the event was due to the defendant's negligence than that it was caused by the plaintiff's own conduct, the inference of the defendant's responsibility cannot be drawn. This is true not only as to the plaintiff's own contributory negligence, but also as to his innocent conduct, of a kind which would relieve the defendant of responsibility, as where a chattel manufactured by the defendant is put to a use for which it was not intended -

and so on.

KIRBY J: The illustration that follows that passage is a case where the person who was operating the locomotive was the person who was killed. You see:

A is an engineer operating a locomotive of B Railroad. One of his duties is to keep the water.....at a proper level. The boiler explodes and kills A. Without other evidence, it cannot be inferred that the explosion was due to the negligence of -

the employer.

MR HEENAN: Yes, that is so, your Honour.

KIRBY J: Now, what is the difference between the situation in this case?

MR HEENAN: The situation is that Mr Schellenberg's role in the factory was to be responsible for the air compressor system and the air compressor equipment which meant that - I am not sure it was ever fully explored in the evidence but presumably it meant that whatever had to be done with the compressor and the pneumatic equipment was something within his area of responsibilities, but it was never examined just what the scope of those responsibilities was or how systematically they had been designed or whether the owner/employer had taken it upon himself to determine whether or not they were sufficient.

The case really never got past the point that Peter, as he was called, Schellenberg had the responsibility for the pneumatic equipment, but we keep coming back to the proposition that it was a non-delegable duty and that in effect he was to use and administer the equipment which was supplied to him and this particular equipment was prone to the air hose separating and causing injury in the fashion indicated.

I have indicated that I would deal with Fontaine's Case 156 DLR (4th) 577 and following. Perhaps it would be convenient to deal with that at this moment. This is a decision of the Supreme Court of Canada given on 19 March 1998. What had happened here was two men went up into the mountains in winter apparently for hunting. They never returned. Two months later their bodies were found in a car at the bottom of a ravine and the plaintiff's husband was strapped into the passenger seat. Plainly the car had run off the road and the only evidence which was available was that there had been severe winds and storms in that locality on or about the date when the men were travelling and that it was likely that the car had aquaplaned off water or run off the road and they had both been killed.

The widow sued under the equivalent of the Fatal Accidents Act and failed at first instance and the matter went up to the Supreme Court of Canada and the decision was affirmed and reliance on the doctrine of res ipsa loquitur was rejected. At page 583 at paragraphs [23] and following - - -

GLEESON CJ: Just before you pass over 582, do you accept the propositions in paragraph [18]?

MR HEENAN: That is undoubtedly a conventional description of the maxim in the British authorities but it is not the way the matter was eventually resolved in this case. At page 583, "Effect of the application of res ipsa loquitur" and there is an explanation which discusses the British and North American cases and learning on the subject which leads to many conclusions with which we are all familiar. In paragraph [25] there is a discussion about "The procedural effect" and then at paragraph [26] comes the innovation:

Whatever value res ipsa loquitur may have once provided is gone. Various attempts to apply to so-called doctrine have been more confusing than helpful. Its use has been restricted to cases where the facts permitted an inference of negligence and there was no other reasonable explanation for the accident. Given its limited use it is somewhat meaningless to refer to that use as a doctrine of law.

[27] It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.

Then his Honour goes on to apply it to the circumstances of this case and decides that in the particular circumstances the happening of the event is too equivocal to justify a conclusion. That is found at paragraph [31] on page 586:

There are a number of reasons why the circumstantial evidence in this case does not discharge the plaintiff's onus. Many of the circumstances of the accident, including the date, time and precise location, are not known. Although this case has proceeded on the basis that the accident likely occurred during the weekend of November 9, 1990, that is only an assumption. There are minimal if any evidentiary foundations from which any inference of negligence could be drawn.

And so on. In our respectful submission, your Honours, the Canadian Supreme Court makes a powerful case in rational argument to prefer the abandonment of strict rules about the application of the doctrine or otherwise and to evaluate the circumstances according to ordinary processes of reasoning. That is consistent with the Restatement.

It is also consistent, we say with respect, with the principles that underlie the decisions of this Court in Anchor Products and in Davis v Bunn and in all the other cases, save possible Mummery v Irvings where, as his Honour Justice McHugh has pointed out, there is dicta to the effect that once the cause of the accident is shown or established, no further reliance can be placed on the maxim. But, as we have already submitted, Anchor Products would seem to explode that view and leaves the case to be decided according to the all the circumstances bearing what weight they may in any particular situation.

KIRBY J: How did Anchor Products explain the proposition that once you do go into the detail and do call the evidence that the thing can still speak for itself? Where is that reported?

MR HEENAN: Perhaps the best passage is in the judgment of Justice Windeyer at page 497.

KIRBY J: Could you put the case on the record.

MR HEENAN: Yes, it is in our submissions, but it is Anchor Products Limited v Hedges [1966] HCA 70; (1966) 115 CLR 493. The particular passage is in the judgment of Justice Windeyer at 497. There is also an explanation of Mummery v Irvings by Justice Taylor at page 495 because his Honour was one of the Judges in Mummery v Irvings and had occasion to explain that one of the remarks of the Court had been taken out of context. The particular passage at 497 runs for half the page and over on to page 498. It is rather too long to read, your Honours, if I may leave it for - - -

KIRBY J: What is your preferred position? Is your preferred submission that the Court should now rule that res ipsa loquitur causes more harm than it is worth and that it should now be banished from the lexicon and we should be looking at inferences from all of the facts, or is your secondary position that if you do apply orthodox expositions of res ipsa loquitur in Australia, then you can still win in this case?

MR HEENAN: Your Honour, our position is that the Canadian decision, the American Restatement and the orthodox Australian position, are all consistent.

KIRBY J: They may be, but two of them, that is to say the Canadian and our Court's decisions, keep using this Latin expression, whereas the Canadians have said, "Get rid of it, it is not worth it, it causes more harm than good".

MR HEENAN: Yes, well, it is not essential for us to - - -

GAUDRON J: Of course, the notion grew up at a time, did it not, when the question was whether there was sufficient evidence to go to the jury?

MR HEENAN: Yes.

GAUDRON J: It was not a reasoning process, as such, in terms of reaching a verdict, but it was a reasoning process to decide if there was or was not sufficient evidence.

MR HEENAN: Yes.

GAUDRON J: That has long since gone, has it not?

MR HEENAN: Yes, well, your Honour - - -

KIRBY J: It also grew up in a time when every lawyer, and certainly every judge, learnt Latin, which has long since gone.

McHUGH J: But this Court has used it as a method of reasoning. I mean, is there any difference between what was said in the Canadian case, really, and what Sir Owen Dixon said in Franklin's Case? He said that the three words:

merely describe a well known form of reasoning in matters of proof. Convenient as it is sometimes to use them to direct the mind along that channel of reasoning they must not be allowed to obscure the fact that it is a form of reasoning about proof leading to an affirmative conclusion of fact and that whenever the question is whether the proofs adduced suffice to establish an issue affirmatively, all the circumstances must be taken into account and the evidence considered as a whole.

MR HEENAN: That is our position precisely, your Honour, but the trouble is that in the application of the doctrine it becomes encrusted with traditional landmarks and one see in this case Justice Pidgeon, as I have already indicated, observing that there were sufficient facts that had been discovered in this case to preclude using the maxim to establish negligence. Justice Pidgeon also saying at page 291 that there was no basis to draw an inference that the defendant had not given any evidence about system because the evidence had never got to the point where he was obliged to adduce evidence of that kind.

The courts have the unfortunate habit of slipping into preordained categories to examine whether or not the doctrine can be used. If one goes to the judgment of Justice Walsh at page 305, his Honour treats Anchor Products v Hedges, in effect, as meaning that the maxim cannot apply if the facts are known. Justice Ipp, at page 309, makes observations that it is essential for the plaintiff to "prove that the management did not use proper care in regard to all the factors mentioned".

McHUGH J: It is a doctrine that applies when the cause remains unexplained. Once the cause has been explained to the tribunal of fact's satisfaction, the question then is whether or not the circumstances point to negligence, do they not? In the absence of an explanation as to cause you are entitled to infer negligence. You do not have to, but you can infer negligence from the existence of the res because the presumption is that, ordinarily, such an event does not occur without there being negligence in the ordinary course of human experience.

MR HEENAN: Your Honour, we accept all of that up to the point where it is said that once the facts emerge there is no scope left for the application of the maxim because if one looks at that observation, what it means is, once the facts are known, there is no scope left to draw inferences and, with respect, that - - -

McHUGH J: I do not think anybody has ever said that.

MR HEENAN: Perhaps they have not, your Honour, but that is what it means, with respect. If one says that once the facts emerge, there is no scope to apply the maxim, what it must connote is that once the facts are established one cannot draw inferences from the occurrence of the accident. If one applies the Canadian case and the Restatement, and Anchor Products, and Davis v Bunn, the answer would be, once the facts are established, the tribunal of fact must draw a conclusion on all the evidence, including such inferences as are rationally available from either the facts as revealed and/or the occurrence of the accident.

Perhaps it is that part that we are seeking to add which is novel, but it is consistent, in our respectful submission, with any case made on circumstantial evidence. Why jettison the circumstances and inferences that can be drawn from them just because one knows the facts?

I mean, one gives preference to the facts. One draws inferences and makes conclusions on the basis of fact, but if the facts are inconclusive or incomplete, or if they do not allow a decision to be drawn with a requisite degree of confidence, there is no reason in principle, policy or logic why one cannot resort to inferences that can be drawn from the facts. I do not mean to suggest that one resorts to inference to get over a problem of a burden of proof. The inference has to be sufficiently convincing to exceed the test of the balance of probabilities. But if it is, why not consider it? Let us go back to the example postulated by Justice Kirby in the medical negligence case - the swab inside the patient after operation.

Now, one might lead evidence that there had been some laparotomy; there had been all sorts of things done; there had been inspection; there had been drains, and catheters, and a number of surgeons involved; and there had been counting, and checking, and accounting for the various sutures and swabs; but at the end one is left in and the facts do not explain it. The swab nurse counted fifteen swabs in and fifteen swabs out. The surgeon says that before he closed he checked the abdominal cavity and there were no swabs. Yet, on re-operation there is one there. Is that not, I ask with all respect, the case where the inference overrides the facts and shows them to be unreliable? That is essentially what we postulate here. Now, your Honours, I can go to a detailed examination of his Honour's reasons. Perhaps I should do that just briefly - - -

McHUGH J: I am more interested not so much in his Honour's reasoning, but a precise statement as to what facts you rely on in this particular case. I am not certain what facts you do rely on.

MR HEENAN: Very well. Can we go to the evidence of Mr van der Meer, the plaintiff's expert at appeal book, volume 1, page 121?

McHUGH J: But is this evidence that is accepted by either the trial judge or the Full Court? Is that not really what we are looking for? We do not want to be looking at evidence ourselves. The trial judge saw these witnesses. Did he accept their evidence or reject it, or what?

MR HEENAN: Your Honour, we have already identified that at the trial the issues that were singled out for major attention were, was it a garden hose or a pneumatic hose? Was the valve capable of being worked on horizontally rather than vertically? Should there have been a velocity fuse, and was there something wrong in the mechanical make-up of the grinder and its connections? Now, on those matters, his Honour made definite findings that pneumatic hose was used of the suitable type. He made a finding that a velocity fuse would not have prevented the accident and he made a finding that using the horizontal method would not have reduced the accident. He also made a finding that there was no latent or other defect in the mechanical couples in the grinder.

Now, that particular finding is one which perhaps requires some refinement because at first blush it is capable of being interpreted as excluding the view that the hose was insecurely fastened to the Jamec coupling. But his Honour obviously cannot have meant that. His Honour must have meant, and plainly did mean, that it was the other components of the grinder and connections which were satisfactory but it was the Jamec coupling of the hose with the clamp which were faulty.

Now, in the second phase of the trial after the amendment to the pleading was introduced and there was the reliance on the general allocation of negligence or res ipsa loquitur, depending on how one favours it, the focus shifted and the question was, did the hose separate from the grinder, as the plaintiff contended for, at the Jamec coupling, leaving simply an end of hose to whip around as air escaped or did it separate on the grinder side where there was a valve which would have stopped the air escaping?

The two engineers had gone away and done tests. Dr Chew on the one hand, and Mr van der Meer on the other, and they came back with their reports indicating that if it had come off at the grinder side there would have been a short, brief, abrupt noise; the hose would then have sealed itself by the valve and it would not have whipped around and there would not have been any whistling or whishing sound of air escaping and the hose might have moved slightly, but only to a very small degree. On the other hand, it came out, if the hose came out on the other side of the Jamec coupling with uncontrolled ..... venting, there would be a loud noise, there would be a piercing, shrieking noise of air under pressure escaping and the hose would whip around until the source of the air pressure was turned off.

Dr Chew gave as his opinion that the hose detached in a self-sealing way. Mr van der Meer gave as his opinion that it must have come off and whipped around and his Honour accepted the view of Mr van der Meer, that it came off and continued to vent and was whipping around and that, in turn, led to a finding that it slipped off the aperture to the Jamec valve and that, in turn, led almost irresistibly to the conclusion that it was insecurely fastened or loose. That left the final decision. Is this an event which connotes negligence or is it an event which ought not happen in a properly regulated workplace?

His Honour drew the conclusion of fact that it ought not and in the Full Court, that conclusion was, in fact, reversed, essentially, because the doctrine did not permit it to be drawn. Now, it is one thing to say that it was wrong on the facts but if one concentrates on the view that the maxim did not allow it to be drawn, one introduces all these elaborations into the doctrine - - -

HAYNE J: If one cuts through the elaborations, as I understand what you have just told us in response to his Honour Justice McHugh, there were two findings. One, it separated at the Jamec coupling; two, therefore, it was insecure or loose.

MR HEENAN: Yes.

HAYNE J: From those facts, do you say, or from those facts coupled with the fact that it was, in some sense, under the control of the employer - from those facts do you say the court could have, and in this case should have, inferred negligence?

GAUDRON J: Well, inferred that it happened more probably than not as a result of negligence.

HAYNE J: Just so.

MR HEENAN: The brief answer to your Honour's question is yes. The longer answer is that there are other ingredients in the determination and the other ingredients are that friction couplings are notorious to have a fatigue failure rate; that in this workplace there had been two similar accidents before; and that the evidence of Mr van der Meer and of Dr Chew was that the particular profile of this Jamec valve indicated that the serrations were rounded or worn, confirming that through frequent use it had got to a stage where it was showing signs of wear and was predisposed to such an event happening.

KIRBY J: I suppose one could add a further factor that it would be inferred that because of the danger that could be caused if it did come uncoupled, that it was not something that ought to happen.

MR HEENAN: Indeed. In one part of the evidence dealing with the need for velocity fuses, Dr Chew was asked whether or not velocity fuses should be installed. His view was that they were not common before small hand held tools operating on relatively low pressures such as these. On that point he was diametrically opposed to the evidence of Mr van der Meer but his Honour accepted that. But what Dr Chew did say was that, with regard to velocity fuses, it is better to secure the hose so that you do not get separation.

GAUDRON J: I do not think I follow that. Do you mean so that you do not get whipping around or are you talking about securing the hose independently or securing it to the coupling?

MR HEENAN: No, he meant securing it to the coupling. The point of the velocity fuse was to ensure that if it did separate, the pressure was immediately stopped and there would not be whipping around. Dr Chew, in rejecting, in his opinion, the importance of velocity fuses, said that it is more important to ensure that it does not separate.

GAUDRON J: Yes, can you direct me to that evidence?

MR HEENAN: Yes, certainly, your Honour, page 187:

it might be better just to make sure that the hose doesn't become detached in the first instance.

Appeal book, volume 1, page 187, line 45. The question in examination-in-chief:

would a velocity fuse stop a hose from shipping around if it became detached?

Answer:

It would, but I think it might be better just to make sure that the hose doesn't become detached in the first instance.

So, returning to Justice Hayne's question, whether one takes the particular factors simply of the fact of the separation and the view that it was insecure as justifying the inference of negligence, the answer, in our respectful submission, is in the affirmative.

HAYNE J: Then is that not the general proposition that failure of equipment capable of causing severe injury - or if you like, capable of causing injury - without more, is a sufficient basis for concluding that it is more probable that that failure was caused by the employer's negligence? That may be right, but is that not the inevitable consequence of the proposition you advance?

McHUGH J: It is a big step.

MR HEENAN: That depends on the level of generality at which the question is addressed. If one abstracts the question from the particular facts and circumstances of this particular case, it does have that connotation and that may be an intolerable width of liability and an encroachment on the need to prove fault.

McHUGH J: But was there not a specific finding of fact against what you rely on at 187? At page 241, line 3, the judge said:

I am not satisfied the plaintiff has proved that the defendant was negligent in failing to install velocity fuses in the air pressure system within the workshop.

MR HEENAN: I am sorry, your Honour?

McHUGH J: Page 241, line 3.

MR HEENAN: Well, we accept that finding. Our case, built on velocity fuses, failed, but the point we were attempting to draw from the evidence of Dr Chew was that velocity fuses are of secondary importance. The main priority is to prevent separation - the implication being that that can be done in some other way. If I might just return to the important issue raised by Justice Hayne, and this is the question of the level of abstraction. One of the problems with the res ipsa loquitur doctrine is that a set of rules have been formulated as if they had application to every conceivable case regardless of the circumstances and that no reliance can be placed on the doctrine unless one checks off a variety of items on a tick list.

HAYNE J: That is not what I am putting to you. What I am putting to you - - -

MR HEENAN: No, I appreciate that, your Honour, but the preference which emerges from the Canadian approach and from the American Restatement, and what we suggest is a proper application of Davis v Bunn and the other cases, is that it all depends on the circumstances of one case. It is a decision of fact in each case. Just because one defendant is found liable in one motor vehicle accident case, or a boiler manufacturer is found liable in another, does not mean that every other defendant in similar circumstances would be found liable because there will be different circumstances.

One should not generalise beyond the particular case and if one accommodates the doctrine as nothing more than a part of the general application of circumstantial evidence, one ought not draw conclusions beyond the circumstances of this case. Returning to your Honour's question, can the learned trial judge's decision, based on the fact of separation and the conclusion of lack of secure fastening, justify a liability, the answer must be, in the particular circumstances of the case, with all the other evidence which was before his Honour, it could. But that does not mean that in another case, it will.

GLEESON CJ: Mr Heenan, how long do you expect to require for the completion of your argument?

MR HEENAN: Your Honour, I was really hoping that I might have been able to finish this afternoon but I would hope that I could conclude in 10 or 15 minutes.

GLEESON CJ: How long do you expect to be, Mr Criddle?

MR CRIDDLE: It depends to a large extent on what your Honours expect of me. I would have thought 15 minutes.

GLEESON CJ: Thank you. I am only asking these questions for the information of the people in the following cases. We will adjourn until 9.30 am tomorrow morning.

AT 4.33 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 20 OCTOBER 1999