Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville B34/1995 [1996] HCATrans 121 (15 March 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B34 of 1995

B e t w e e n -

GEOFFREY MAURICE FINN

Applicant

and

THE ROMAN CATHOLIC TRUST CORPORATION FOR THE DIOCESE OF TOWNSVILLE

Respondent

Application for special leave to appeal

TOOHEY J

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 MARCH 1996, AT 11.05 AM

Copyright in the High Court of Australia

MR C.F. WALL, QC: If your Honours please, I appear with my learned friend, MR D.G.H. TURNBULL. (instructed by Giudes & Elliott).

MR K.F. BOULTON: If the Court pleases, I appear for the respondent. (instructed by Boulton Cleary & Kern)

TOOHEY J: Yes, Mr Wall.

MR WALL: Your Honour, the Court of Appeal started at the wrong end in this case. The view taken by the Court of Appeal was that the particular injury was not foreseeable, rather than whether the employer's conduct involved a foreseeable risk of injury of the class or kind or type. The Court of Appeal completely ignored the applicant's working conditions. All of the members of the Court of Appeal, with respect to them, never grasped the facts found by the trial judge and referred to on page 2 of our summary of argument.

McHUGH J: Mr Wall, speaking for myself, you certainly have an arguable case that the Court of Appeal erred. But what is so special about this particular case that requires the grant of special leave. It just means at best from your point of view that arguably a well-known principle has been wrongly applied to the facts of the case.

MR WALL: The approach taken by the Court of Appeal, your Honour, is completely contrary to established authority, and it followed - - -

KIRBY J: I think you are being asked to assume that you have made that point but the question is, if that authority is, as you say - and we will assume - so clear, what is the need for us to restate it?

MR WALL: It is important for this Court to stop the attempt by the Court of Appeal to set a new standard for foreseeability. That is what the decision of the Court of Appeal purports to do.

TOOHEY J: But you cannot divorce what the court said in that regard from the facts of the case, can you?

MR WALL: The facts, of course, are important, your Honour, but the principle is nevertheless there that the Court of Appeal have attempted to turn foreseeability on its head and require foreseeability of a much more stringent character than the established authorities require. I cannot take that aspect of the case any further, your Honours.

TOOHEY J: Very well.

MR WALL: No consideration whatsoever was given by the Court of Appeal in its consideration of foreseeability to the conditions under which the applicant was required to work. The Court of Appeal ignored the findings of the trial judge that all employees were at risk of injury of infection, 10 per cent with an increased vulnerability. Also, they ignored the fact that there was nothing unique about the applicant. He was merely a member of the 10 per cent class, and the Court of Appeal failed to appreciate that the doctor, whose certificate they referred to, Dr Matthiesson, did not, until January 1993, after the second injury, have any knowledge whatsoever of the fact that the applicant was using a water-blasting machine which caused his injury.

KIRBY J: It does seem a very unique - if you can be very unique - it does seem a unique set of facts that you succeeded upon and that is, of course, another reason why we would not normally, I think, be concerned in it.

MR WALL: Well, with respect, your Honour may be falling into the error that the Court of Appeal did.

KIRBY J: Well, get me out of it, then.

MR WALL: That is to approach the uniqueness of the injury and equate that with foreseeability when all that is required here, so far as foreseeability is concerned, is foreseeability of the risk of bodily injury, not foreseeability of the risk of acquiring either of these infections.

McHUGH J: It is elementary principle that you do not have to foresee the precise risk. One only has to see in a general way that there was a risk of injury and, arguably, you established it in this particular case. This Court does not sit as a Court of Appeal and you have got to show that there is something special about this particular case.

MR WALL: The special point about this particular case is the attempt by the Court of Appeal to set new rules, new guidelines so far as Queensland is concerned.

McHUGH J: Well, even Homer nodded. I mean, you say this is an attempt but this is one - - -

KIRBY J: Can you take us to the passage where you say this attempt is manifested?

MR WALL: It is referred to, your Honours, in our summary of argument at page 6.

TOOHEY J: That is a replacement page, is it, Mr Wall?

MR WALL: It is, your Honour, yes. The first full paragraph on that page refers to the different pages in the judgment of Mr Justice Thomas and Mr Justice Williams where their Honours limit foreseeability to foreseeability of this particular infection - these organisms.

TOOHEY J: That is inevitable, I suppose, is it not, that in the course of dealing with the matter the court will look to the facts of the case and the nature of the injuries sustained and so on. Have you really answered Justice McHugh's question, namely, where, as a matter of principle, can it be shown that the court went wrong.

MR WALL: Those passages referred to there permeate the judgment. I mean, those were the errors of principles. Those passages, your Honours, are where the errors of principle are apparent - - -

McHUGH J: They are not errors or principle. They purport to apply a principle of the facts of the case and, on your submission, get a wrong conclusion, but how is the case an authority for any proposition that is of general application?

MR WALL: Page 62, your Honour, at the top of the page, where Mr Justice Thomas says:

If the risk is to be identifies as of a sufficiently serious level to a significant class of persons, it is difficult to know when it would be safe to let any groundsperson work without a mask, as the agents of risk include both dust and moisture.

A little further one:

If there is a need to guard employees against these organisms by compulsory procedures -

Now, the whole effect of the judgment is to equate foreseeability of the risk of injury with foreseeability of the risk of an employee catching these particular infections. I mean, that is apparent throughout the judgment and where their Honours refer to "these infective organisms" these organisms, the particular agents that arise in this case, they are doing so in the context that what is required is foreseeability of the risk of an employee catching those infections. And, to that extent, they run counter to established authority and attempt to set a new standing for foreseeability, and this Court should see that that attempt is stopped in its infancy. I cannot take it any further than that, your Honours. It is a very important question so far as foreseeability is concerned.

TOOHEY J: Thank you, Mr Wall. We need not trouble you, Mr Boulton.

The unanimous decision of the Court of Appeal in this case turned essentially upon the facts. Neither the claim based in negligence, nor that for breach of statutory duty, sufficiently raises any question of general principle that would attract a grant of special leave to appeal. The application for special leave to appeal will be dismissed.

MR BOULTON: Your Honours, I ask for costs.

TOOHEY J: Mr Wall, any reason why costs should not follow the event?

MR WALL: None, your Honour.

TOOHEY J: Special leave is refused, with costs.

AT 11.16 AM THE MATTER WAS CONCLUDED