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ARTICLE · 21 JUNE 2011

Advocate’s immunity extends to preparation of evidence

A discussion on Day v Rogers [2011] NSWCA 124

AustraliaLitigation, Mediation & Arbitration

Facts

Mr Kuhl was employed by Transfield Constructions Pty Limited ('Transfield') to clean reactor grid floors at a plant owned by BHP Billiton. His duties required him to use a special vacuum to remove iron waste material.

Transfield had contracted with WOMA (Australia) Pty Limited ('WOMA') to provide the vacuum truck, the hose and other equipment relevant to the vacuuming system. At the relevant time Hydrosweep Pty Limited ('Hydrosweep') had supplied avacuum truck and two operators to WOMA for use at WOMA's discretion.

On 19 November 1999, Mr Kuhl injured his left arm when it was sucked into a hose after the hose was passed to him by Mr Kelleher,an employee of Hydrosweep that had been provided to WOMA for their use. It was not entirely clear how Mr Kuhl's arm actually became caught in the hose, but it was accepted that the vacuum was on.

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