Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HEYDON, CRENNAN AND BELL JJ

GEOFFREY LAWRENCE KUHL APPELLANT

AND

ZURICH FINANCIAL SERVICES AUSTRALIA LTD

& ANOR RESPONDENTS

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11

4 May 2011

P31/2010

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Western Australia made on 24 March 2010 in favour of the first respondent and in their place order that:

(a) the appeal be allowed;

(b) the orders made by Wisbey DCJ on 22 January 2009 in favour of the first respondent be set aside; and

(c) judgment be entered against the first respondent in the amount of $265,000.

3. The first respondent pay the appellant's costs of the appeal and in the courts below.

On appeal from the Supreme Court of Western Australia

Representation

B L Nugawela with M A Tedeschi for the appellant (instructed by Taylor Smart)

J E Maconachie QC with J R Criddle and H M O'Sullivan for the first respondent (instructed by SRB Legal)

J E Maconachie QC for the second respondent (instructed by Jarman McKenna)

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

CATCHWORDS

Kuhl v Zurich Financial Services Australia Ltd

Negligence – Duty of care – Appellant injured while using high-pressure vacuum hose – Injury occurred after hose passed to appellant – Supplier of hose also directed and supervised appellant – Concession by first respondent of duty of care made in court below – Whether duty of care was dependent on increased risk.

Negligence – Breach – Supplier of hose failed to install break box and failed to issue instructions not to pass hose while power was on – Relevance of subsequent changes to safety systems – Whether changes inordinately expensive or disadvantageous.