Barra Pty Ltd and ORS v Ramsey B23/1997 [1997] HCATrans 394 (5 December 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B23 of 1997

B e t w e e n -

BARRA PTY LTD, KEITH JOHN KELLY SENIOR, KEITH JOHN KELLY JUNIOR and CHRISTOPHER EVAN KELLY

Applicants

and

BRIAN ROBERT RAMSEY

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 DECEMBER 1997, AT 11.31 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC: May it please the Court, I appear with MS J.H. DALTON, of counsel, for the applicants. (instructed by Groom & Lavers).

MR J.A. GRIFFIN, QC: May it please the Court, I appear with MR J.B. ROLLS for the respondent. (instructed by Shine Roche McGowan)

MR KEANE: If it please the Court, the Court of Appeal concluded at page 26 of the record at line 10 that the learned trial judge had erred in refusing to allow evidence to be adduced on behalf of the present applicants to the effect that the respondent had told the witness, Trimmingham, that his, that is to say, the respondent's injury was caused when he grabbed on bags to hoist himself up. Your Honours will see that evidence recited at page 25 of the application book line 30.

McHUGH J: Your case is a very short point, is it not? You say that the error occurs on page 27 of the book in that the judgment seems to overlook that if this evidence had been admitted, the judge may have held that there was no instability in the stack?

MR KEANE: Quite, your Honour, particularly having regard to the fact that the learned trial judge inferred that the stack collapsed by reason of the negligence of the applicants in their stacking of it on the basis of res ipsa loquitur approach. That reasoning or that inference is not one that is an easy one to draw having regard to the circumstance that these stacks had stood still for two weeks and, on the assumption that there was no interference with them, seemingly spontaneously collapsed on to the respondent. So that it is our submission that their Honours did err in failing to appreciate the impact of that evidence and in failing to appreciate that such evidence could have made a difference to the result of the trial.

KIRBY J: We do not have the notice of appeal to the Court of Appeal. Was this the point that was argued before the Court of Appeal? That res ipsa non loquitur, if you can prove what actually was the cause of the instability and that, therefore, you should have been heard on that because it may have meant that the plaintiff walked away with nothing?

MR KEANE: Not articulated in precisely that way, your Honour, no. The contention before the Court of Appeal was that this evidence having been wrongly excluded, could have made a difference to the result of the trial, that is to say, not simply in relation to the issue of apportionment, but to whether the judgment could stand and whether there should be a new trial ordered.

KIRBY J: So, you did specifically raise the issue of getting it in in order to demonstrate that negligence might not be established on a new trial, when all the evidence was in.

MR KEANE: Quite, your Honour, because it is not just negligence, it is negligence leading to liability, which means negligence which causes the damage.

McHUGH J: Is it not the other way around? This evidence goes to cause, the cause of the collapse.

MR KEANE: Quite, your Honour.

McHUGH J: And once the cause of collapse, or the occurrence of an event is established, well, that is the end of the doctrine of res ipsa loquitur. The question then is, having regard to the cause and the known facts, was the defendant negligent?

MR KEANE: Yes, we would adopt that, with respect, and we add to that the point that the res ipsa loquitur inference is not an easy one to draw. It was certainly not accepted on our side that, if this evidence were admitted, we would have remained liable at all, because it goes to displacing the notion of causation.

GAUDRON J: Yes. Well, we think at this stage we might benefit from hearing from your opponent, Mr Keane.

MR KEANE: May it please the Court.

MR GRIFFIN: May it please the Court. The evidence on this issue - that is, the evidence by Mr Trimmingham, or the proposed evidence - did not bear on the question of whether the bags had been badly stacked. The evidence that the bags were badly stacked came from other sources. It was established, from those sources, that the bags were stacked too high, that they were non-gusseted - that is, that they were an awkward shape and were slippery - and that the pallets upon which they were placed were too small.

Now, it also needs to be understood that it was the applicant's case that the bags had been stacked by the respondent and his agent or agents. It was their case that the respondent, or his agent or agents, had stacked the bags on the pallets and that the respondent's agent, Knecht, had transported the pallets to the applicant's shed and stacked them there, against the wall of the shed. The applicant has made the contention, based on that evidence, that the respondent had been injured by reason of his own negligence, or that of his agent or agents.

Now, once the trial judge held that the stacking of the shed was done by the applicants, the applicants could not then alter their case and contend that the bags were not stacked negligently. Once the finding was made that the applicants were responsible for the stacking at the shed, and the safety of the installation at the shed, all those assertions counted against them, and it is for that reason that - - -

McHUGH J: Yes, but there are two issues that can arise from Mr Trimmingham's evidence. On one view, it might go to showing what the cause was and to negate a finding of negligence. But let it be assumed that there was negligence in the abstract. The question still will remain whether that negligence was the cause of the plaintiff's injury, and Mr Trimmingham's evidence also went to that issue; that is to say, even if the bags had been badly stacked, the cause of their collapse was the plaintiff's act.

MR GRIFFIN Your Honour, it only went to the question of what initiated the fall. It certainly went to that issue, because it established, on that alternative hypothesis, that what initiated the fall was Mr Ramsey taking hold of the bags. It did not go to the causation of the fall in the sense that what was the cause of the fall was the way in which the bags was stacked. It was necessary that the bags be stacked improperly or incorrectly for them to fall, having regard to the nature of the interference that Mr Trimmingham's evidence would have led the court to conclude Mr Ramsey had made.

That is particularly so because he could only have stood on the front row of the bags, that was the row of the bags next to the truck, and those bags were lower than the second row, that is the row behind. On the row behind the bags were stacked up to the ceiling, and it was held that the first row and the second row were not touching. That being the case, any interference by Mr Ramsey with the front row could have only had a minimal impact on the second row. The trial judge held, on the basis of entirely independent evidence, that the bags that fell were from the back row, from the top of the back row.

So this evidence - and this is, in effect, what the Court of Appeal held. The Court Appeal holds, at page 26, that, yes, Mr Trimmingham's evidence could have affected the case in the sense that it could:

have affected the trial judge's acceptance of the evidence of the respondent and Mr Kuhn concerning how the accident occurred -

Then they proceed on the basis of that assumption. On the basis of that assumption, what did it lead to? It only led to the fact that Mr Ramsey had initiated the fall. The fall must necessarily have occurred because of the lack of safety in the stacking of the bags. It was for that reason that the Court of Appeal held that the result of the trial could not have been affected by this evidence, in the sense that the result on the issue of liability could not have been affected.

So, in addition, your Honours, the case is, in any event, no more than a particular application of the principles set out in Stead's Case, which is, as your Honours know, the latest deliberation of this Court on the topic. Both judgments in the Court of Appeal demonstrate that their Honours were well aware of the principles, Stead's Case being referred to by their Honours in the joint judgment at page 26, and by Mr Justice Williams at page 30. It is apparent from that analysis at page 26 that their Honours, in the joint judgment, applied the right test. As I said, they were prepared to proceed upon the assumption that Mr Trimmingham's evidence was accepted and, on that assumption, that the evidence by Mr Ramsey and Mr Kuhn as to the way in which the fall had occurred was not correct, and that the fall had been initiated by Mr Ramsey climbing up on the bags at the front.

Then they said, "Well, where does that take us?" It takes us simply to the point where the initiation of the fall is Mr Ramsey climbing on the bags and not some sort of spontaneous fall.

KIRBY J: But what I have difficulty with is that then they embrace this notion that a worker getting up on a pile of bags constitutes contributory negligence. I mean, the law on contributory negligence has moved on and employers just have to accept that workers in the pursuit of their work duties will sometimes do things that are unsafe or unwise but it is not contributory negligence.

MR GRIFFIN: Your Honours, once one reaches that point the ultimate finding was as favourable as it could have been in relation to the applicant for this reason, that, as your Honour indicates, on the first hypothesis, that is to say if he had not climbed up on the bags and had not disrupted them, he could hardly have been said to have been negligent at all because once one accepts the proposition that the trial judge did accept that the stacking was the responsibility of the applicants, then there can hardly be a great deal of culpability in Mr Ramsey for failing to check the stability of the bags and that can be the only basis upon which he could be contributorially negligent.

KIRBY J: Yes, but the whole case has been gone off on the basis that this is how it is reasoned res ipsa loquitur but contributory negligence as a sort of a compromise, but it does not seem as though it has been a proper trial at all.

MR GRIFFIN: Your Honour, res ipsa loquitur was only mentioned by his Honour in relation to the first hypothesis and it was a reference to res ipsa loquitur in the context in which his Honour had already identified those respects in which the bags were not properly stacked, the ones to which I have referred, and that appears at page 14 of the record. This is at 14 point 4 or 5:

One reasonably infers, because that part of the stack was unstable, either as originally set up by Mr Beveridge -

now Mr Beveridge was the applicants' man -

or because of some subsequent event for which the plaintiff should carry no responsibility, but of which the relevant defendants, exercising proper supervision, should have been aware, and which therefore attracts their liability.

Then he went on to mention Mummery's Case, but it is all in the context in which he has identified at an earlier stage the bases upon which the stack was unsafe and, as I said - - -

McHUGH J: Yes, the strength of your argument is that at page 12 the judge had accepted Mr Christoffel's evidence that there was a prospect that a bag could be dislodged or that a person standing on the pallet on top of the bags would have been vulnerable to a collapse of the bags.

MR GRIFFIN: Yes.

McHUGH J: So your case is that there was negligence and I assume you say it is impossible to say that Trimmingham's evidence could have established sole cause and if it could not establish sole cause then it only went to contributory negligence.

MR GRIFFIN: Yes, because, as I said, the bags that fell were from a back stack and from the top and what impact could he have had on the fall of those bags by climbing up on, or grabbing hold of the bags in the front stack, that were not even directly - - -

McHUGH J: Well, even if it could have, the fact is it does not establish that the plaintiff was solely responsible for his injuries.

MR GRIFFIN: Precisely, and that is exactly what the Court of Appeal said.

McHUGH J: Yes.

MR GRIFFIN: There was no way in which the applicant could avoid responsibility for the way in which those bags were stacked and that was the cause. As I said, the only sense in which the grabbing hold of the bags would have caused the event was that it would have initiated the event. Those are our submissions, if the Court pleases.

GAUDRON J: Yes, thank you. Mr Keane, you have your full 20 minutes, at this point.

MR KEANE: Thank you, your Honours. Your Honours, in our respectful submission, this was not an orthodox application of Stead's Case. The court approached the issue as being, or on the footing, not by asking could this evidence have made a difference but by concluding that it would not have made a difference. In our respectful submission, one cannot come to that view in any orthodox way because acceptance of this evidence, acceptance of the evidence that was excluded, may well have led his Honour the trial judge to accept as reliable and act on other evidence in relation to admissions made by the respondent as to the cause of the accident, and he was the author of his own misfortune.

McHUGH J: Well, that is a very large proposition, though, is it not, Mr Keane? It seems to me, at the moment, that you would have to say that admission of Trimmingham's evidence would have caused the judge to reject Christoffel's evidence because, at page 12 of the book, the judge accepted:

That the bags when stacked on the pallets were not rigid, and that there was the prospect that they could become dislodged -

and therefore they were negligently stacked. If that is the case, unless you could establish that the plaintiff was the sole cause of his injury, it would not matter that he may have been a partial cause. Trimmingham's evidence could have only reinforced your case on contributory negligence, as the Court of Appeal has found.

MR KEANE: Your Honour, in our submission, not, because it would have gone perhaps to persuade the court, the learned trial judge, of the reliability of the evidence of admissions made to others in this regard, the point being that even in the light of Christoffel's evidence, and even if it be accepted that perhaps the bags were stacked in a way that might have been better done, one still has to answer the question why, having stood stationary for two weeks, they suddenly collapsed. That they spontaneously - - -

McHUGH J: Yes, but part of the finding of negligence against you is that it was negligent to have those bags there, not because they were just going to fall over and hit some passer-by - or, not only for that reason - but because a person standing on a pallet on top of the bags would have been somewhat vulnerable, to use the judge's conclusion. So, that was your negligence.

MR KEANE: Your Honour, and in relation to his critical reasoning, which is at page 14 of the application book, in relation to that critical passage commencing at line 10:

Why then did the second row collapse, from the top?

One reasonably infers, because that part of the stack was unstable, either as originally set up by Mr Beveridge, or because of some subsequent event for which the plaintiff should carry no responsibility -

his Honour plainly goes on to reach that conclusion on the footing that there is no compelling competing cause. In our respectful submission, notwithstanding the evidence of Mr Christoffel, if one admits and treats as reliable the evidence of admissions that the plaintiff was the author of his own misfortune, that may well displace the conclusion that there was a sufficient propensity in the bags, as stacked, to collapse, to render us liable. That is why we said at the outset that - - -

McHUGH J: The difficulty with your argument is that the very risk that befell the plaintiff was the risk that the judge identified as being involved in your client's negligence. At page 14, as you point out, the negligence was:

In maintaining the stack in that condition within the premises, knowing that the plaintiff might have access to it.....the relevant defendants failed to take reasonable care for his safety and exposed him to a risk of injury - - -

MR KEANE: But, your Honour, even if one, as we say, accepts that evidence, negligence without causation does not equal liability and, further, the effect of the evidence of Christoffel as to the causal propensities of the stacking should only be assessed in the light of all the evidence, including the evidence which is evidence of an acknowledgment that one has been the author of one's own misfortune.

McHUGH J: Yes, but you are now getting into an area of whether or not one agrees or disagrees. Until I heard Mr Griffin's argument, it seemed to me that this may well be a clear case of a miscarriage of justice in a particular case but, at the moment, it seems to me the highest you can put your argument is that the Court of Appeal was wrong, and that is not a special leave ground.

MR KEANE: Well, your Honour, no, we would say, with respect, that once one accepts that it is an area where one may disagree or agree, bearing in mind that this is a case where the evidence has been excluded and where the relevant question is whether that evidence could have made a difference - not necessarily would have, but could have - it is our respectful submission that what the Court of Appeal has done, to refuse a retrial in a case where it is arguable that it could have made a difference, and one might agree or disagree, what the Court of Appeal has done in declining to order a retrial, where evidence in favour of the unsuccessful party has been excluded, is an unorthodox course so far as the administration of justice is concerned.

It is our submission that if we are to accept, as we do, the strict rules relating to the finality of resolutions of issues of fact at trial, particularly where those issues of fact depend upon issues of credibility, in our respectful submission, those strict rules must continue to be balanced by rules which ensure that all relevant and admissible evidence is heard, otherwise the victim of a wrongful exclusion of evidence - be that victim a plaintiff or a defendant - can lose his case without an essential aspect of a fair trial.

To return to Justice McHugh's point, our submission is that once we - if we can convince the Court on this application that that evidence may have made a difference to the conclusion or to the process of reasoning as to what caused the stack to fall and the way in which Mr Christoffel's evidence may have been used in that respect, once we can do that, then, in our respectful submission, an orthodox application of principle, as enunciated in Stead's Case, suggests that what the Court of Appeal did here is quite unorthodox as a matter of the due administration of justice and, with respect, that unorthodoxy of approach, having crept into the process at the level of the Court of Appeal, can only be corrected by this Court. Those are our submissions.

GAUDRON J: Yes, thank you. We need not trouble you to further reply, Mr Griffin.

Given that the respondents were responsible for the stacking, it was open to the Court of Appeal to conclude that the evidence of Mr Trimmingham went only to the question of contributory negligence. Accordingly, the application raises no question of principle which would warrant the grant of special leave, and special leave is refused.

MR GRIFFIN: I am instruction to ask for costs, if the Court pleases.

GAUDRON J: Anything to say?

MR KEANE: We have nothing to say against that, your Honour, no.

GAUDRON J: Special leave is refused with costs.

AT 11.57 AM THE MATTER WAS CONCLUDED