Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, KIRBY AND HAYNE JJ

PETER SCHELLENBERG APPELLANT

AND

TUNNEL HOLDINGS PTY LTD RESPONDENT

Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18

13 April 2000

P39/1999

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Western Australia

Representation:

E M Heenan QC with D M Bruns for the appellant (instructed by Yesner & Company)

J R Criddle with H M O'Sullivan for the respondent (instructed by J R Criddle)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Schellenberg v Tunnel Holdings Pty Ltd

Negligence – Res ipsa loquitur – Circumstances in which res ipsa loquitur can be used – Effect of the application of res ipsa loquitur – Whether res ipsa loquitur affects the burden of proof – Whether res ipsa loquitur more than a permissible process of reasoning.

Practice and procedure – Amendment – Reopening of issues at trial – Need for care.

Words and phrases – "res ipsa loquitur".

1. GLEESON CJ AND McHUGH J. The principal question in this appeal is whether the plaintiff can rely on the doctrine of res ipsa loquitur to make out a case of negligence in circumstances where a hose, carrying compressed air, which he was using in the course of employment, became loose and swung upwards striking him on the face. In our opinion, the doctrine of res ipsa loquitur did not apply, but, even if it did, its operation was spent once the trial judge found that the cause of the occurrence was the hose separating from a coupling to which it was attached. Once that finding was made, the question in the case was whether the plaintiff had proved that the separation was the result of the defendant's negligence. Because there was no evidence that established that the defendant was negligent in the assembly, inspection or maintenance of the hose and coupling, the Full Court of the Supreme Court of Western Australia was right to hold that the plaintiff's action failed. 2. The appellant ("the plaintiff") sued his employer, the respondent ("the defendant"), in negligence for personal injury caused by a work place accident. At trial, the plaintiff failed to establish any specific allegation of negligence. He was permitted, however, to amend his pleadings to make "an allegation that the fact that the air hose separated from the fitting was in itself evidence of negligence."[1] The learned trial judge, Muller DCJ, found for the plaintiff on this basis, a finding that was unanimously overturned on appeal[2]. In our opinion, the Full Court was right to so hold. On proper analysis, the "principle" of res ipsa loquitur is inapplicable to the facts of this case. Furthermore, the learned trial judge's specific findings based on analogous processes of inferential reasoning are not supported by the evidence. The appeal should be dismissed.