Thursday, 05 May 2011 3:39pm

In a 3-2 decision, the High Court has found a Western Australian supplier that failed to implement engineering controls - that might have prevented an incident - was liable for an injury.

In 1999 a Transfield Construction Pty Ltd worker was using an industrial-strength vacuum hose to remove solidified waste from a reactor when he noticed the hose was blocked. He passed it to a worker employed by Hydrosweep Pty Ltd, which provided operators to WOMA Pty Ltd, which supplied the hose and vacuum truck.

The Hydrosweep worker attempted to clear the blockage, then handed the hose back to the Transfield worker, whose arm was suddenly sucked into it and seriously injured.

The worker was awarded compensation, and accused WOMA and Hydrosweep of negligence, but the State District Court and Court of Appeal found neither of the (since deregistered) companies owed the duties contended.

The worker maintained WOMA was liable, and appealed to the High Court against its insurer, Zurich Financial Services Australia Ltd.

Powerful hose clearly dangerous

In the High Court, a five-member bench heard that WOMA was responsible for clearing hose blockages, and routinely did so while the suction was on.

The worker contended WOMA should have installed a "break box" near the head of the 60-metre hose so the vacuum pressure could be broken without accessing the truck, and instructed operators to turn the suction off before handing the hose to others.

Justices John Heydon, Susan Crennan and Virginia Bell found a hose powerful enough to suck up rocks and lumps of iron and convey them for 60 metres was clearly dangerous.

A worker operating the hose alone and in a static position might have full control, but "one workman handing the hose to another is dynamic, and neither is in a position to be in full control, because each must depend on the reactions, and his perception of the possible reactions, of the other", they said.

"Hence there was a duty of care on WOMA in relation to the passing of the hose", which extended to issuing instructions about turning it off first, and installing a break box.

Justices Heydon, Crennan and Bell noted that the trial judge's conclusion that the worker's "less than expansive" description of the incident meant he was "reluctant to say precisely what happened", was akin to a serious accusation he was deliberately withholding "the whole truth".

The trial judge "plainly assumed" the worker had "deliberately or carelessly" placed his arm in harm's way, but failed to give reasons for the conclusion, or allow the worker to refute it, they said.

A break box might not have prevented the injury, but unless all the damage to the worker's arm was caused when and immediately after it was sucked into the hose, it would, "more probably than not", have lessened it, they said, awarding him $265,000.

Chief Justice Robert French and Justice William Gummow dissented. They maintained that it was still unclear whether the act of passing the hose caused the accident, and said even if workers were ordered to turn off the truck before passing the hose, blockages were so frequent it was unlikely the instruction would have been followed.

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 (4 May 2011)