Toy v The Shell Company of Australia and ANOR S169/1996 [1997] HCATrans 439 (12 December 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S169 of 1996

B e t w e e n -

BRUCE REGINALD TOY

Applicant

and

THE SHELL COMPANY OF AUSTRALIA

First Respondent

CONRAD CONSTRUCTIONS PTY LIMITED

Second Respondent

Application for special leave to appeal

TOOHEY J

GAUDRON J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 1997, AT 11.33 AM

Copyright in the High Court of Australia

MR B.J. GROSS, QC: May it please the Court, I appear with MR K. RYAN for the applicant. (instructed by Armstrongs)

MR P.M. HALL, QC: If it please the Court, I appear with my learned friend, MR W.K.L. DODD, for the second respondent. (instructed by GIO Australia)

TOOHEY J: Mr Gross, just before you begin, I hold a certificate from the Deputy Registrar in these terms:

I have been informed that the first respondent in the above matter does not wish to be represented at the hearing of the application for special leave to appeal and will not be relying on the summary of argument filed on its behalf. It will submit to any order of the Court save as to costs.

That is the end of the certificate. I take it this is on the footing that whatever judgment eventually emerges the second respondent is bound to indemnify the first respondent.

MR GROSS: Yes, as the indemnifying employer under the cross-claim they really stand in the shoes of the occupier against whom we raise our arguments now.

TOOHEY J: Yes.

MR GROSS: Your Honours, the plaintiff's accident occurred in a space between two and four metres wide between a very large unguarded hole in front of him and a two foot high stand which, while he worked, was directly behind him and below his eyeline because it was only two feet high.

HAYNE J: What then is the point of principle as opposed to question of fact which the application seeks to agitate?

MR GROSS: Your Honours, the deduction of one-third for contributory negligence, which the Court of Appeal tersely upheld, was founded upon reasons which themselves evidence legal error as distinct from discretionary mistake.

May I take your Honours to pages 3 and 4 of the judgment by the trial judge, Justice Hulme, and your Honours will see contributory negligence of that degree was found essentially for two reasons. At page 3, firstly, because "the stand was a very obvious structure", that is at line 30, and there is further reference to the obvious nature of the stand at the bottom of page 3. Secondly, because his Honour found, if your Honours would go to the top of page 4:

anyone in the defendant's position might reasonably have expected that it was not likely to be a hazard to persons used to working on roofs, attendant as many roofs are by air conditioning and other obstacles.

Your Honours, the Court of Appeal to Justice Cole, at page 22, upheld the outcome and at page 22, in dealing with this issue, in effect, said two things: first, that a court:

must have regard to the circumstances and conditions in which the employee ..... is working -

in order to determine contributory negligence, and secondly - and I will put aside the statement that is an issue of fact:

In my opinion there was clear evidence of contributory negligence on the part of the appellant in not taking care for his own safety by being aware of obvious structures over which he might trip.

So that, in the Court of Appeal the relevant failure is a failure of awareness, that is, unaware of the location, proximity and risk of a stand behind him which was not meant to be there.

Your Honours, Justice Cole, your Honours will see at the tope of page 22 in the passage I have referred to, faithfully recited the proposition from McLean v Tedman that there is need to have regard to the circumstances and conditions in which the work is operating and, of course, Justice Cole says that is what his Honour did. We would submit, when we go to both judgments, there is no evidence in the reasoning of either Justice Hulme at trial level or in the Court of Appeal that this recitation of principle in such simple terms was given any content consistent with relevant legal principles. It is our submission that the ritual incantation of this simple proposition from McLean v Tedman, having regard to the circumstances and conditions in which the work was operating, would not be held to be a sufficient performance of the duties of a trial judge or of a Court of Appeal on review when plainly neither have had regard to what is entailed in looking in law at the circumstances and conditions.

So, first of all, we argue, I suppose as a basic matter, and, indeed, for a secondary matter, that the outcome itself reflected egregious error and a specific miscarriage of justice. We appreciate the words "egregious error" is much overused, perhaps, at the tail of an argument, in this Court, but we submit the label does fit. But on the question of legal principle, where we contend there was error, we would like to focus your Honours' attention on five areas in which the errors of principle arise. Your Honours, we submit that the Court of Appeal failed to recognise that there was a headlong, internal consistency between the basis on which negligence was found and the basis upon which contributory negligence was found - - -

GAUDRON J: Yes, but I must say I do not see that there is such an inconsistency and I apprehended your whole argument is based on this. An employer's duty of care is to be formulated, in certain circumstances, by reference to the risk of inadvertence but that does not say that inadvertence is not itself contributory negligence.

MR GROSS: Your Honour, I appreciate that particular conundrum proposed but - - -

GAUDRON J: I cannot see it as a conundrum at all.

MR GROSS: Well, your Honours, the error is of a slightly different but more fundamental kind. If your Honours would go to the basis upon which negligence is found at page 3, at lines 10 to 22, the trial judge Justice Hulme says:

Particularly given the presence of the hole in the roof, but also because of the movement of other men and equipment, with the likelihood -

and we are emphasising this passage -

that from time to time the attention of any person was likely to be directed elsewhere, the conclusion at which I have arrived is that the defendant was negligent to leave, or permit to be left where it was, the stand over which the plaintiff fell.

So, the foundation - - -

GAUDRON J: The error might be in "was likely" as distinct from "might be".

MR GROSS: The emphasis - and the word "likely" or its variants is used twice is that negligence was based upon the fact that unawareness by the worker was "likely". However - - -

TOOHEY J: That is not right, is it? Is it unawareness or failure to direct attention to the structure in a particular set of circumstances and someone's attention might be suddenly and quite dramatically directed elsewhere. That is one situation. Another is a sort of day-to-day situation in which it might be said, "Well, the structure is there, failure to have regard to it evidences contributory negligence".

MR GROSS: Well, yes, your Honour, but we submit that the foundation of the negligence finding is the likelihood at the relevant time of injury that the attention of the plaintiff was likely to be directed elsewhere and so the foreseeability of the likeliness of him concentrating on other matters, not the hazard, is at the heart of the negligence finding. We invite your Honours just to compare that very briefly, if you would, with the proposition at the top of page 4 that, in effect, anyone in the defendant's position might reasonably have expected it was not likely to be a hazard to persons used to working on roofs et cetera. We submit that that is founded on the proposition that the defendant would not regard it as likely that it would create a hazard.

Now, if in fact, it is a hazard because unawareness or lack of direction of attention is foreseeable and therefore there is negligence, it is inconsistent with that to then find that in weighing the contributory negligence the employer is entitled to take the view that the hazard is unlikely.

GAUDRON J: You say that again and doubtless the reasons might have been better expressed in some respects, but what is to be taken into account in the formulation of the duty is the possibility of inadvertence. It seems to me that his Honour was just using another form of words for that. If there is inadvertence, however, there is no reason why that cannot be contributory negligence, is there?

MR GROSS: Your Honour, we recognise that, however, the foundation of the resolution of the case is the argument that for negligence purposes, a certain outcome is likely, that is, lack of direction of attention but considering the same case at the contributory negligence end, the employer is entitled to expect it is not likely to be a hazard. Now, I know different words are used, "direction of attention" in one, and "hazard" in the other. But, if in fact, the cause of the injury is lack of attention at the time and, indeed, the Court of Appeal finds lack of awareness at the time, you are talking about essentially the same phenomenon.

GAUDRON J: Is his Honour saying any more in that passage than that the employer was entitled to think that employees would act with due care for their own safety.

MR GROSS: Well, we would submit that we have a finding in terms that, in effect, their experience will protect them from what is there so there is not a hazard. Now, if that is relevant for contributory negligence purposes, it does not seem to have crept into the outcome in relation to negligence. Perhaps, I might move on to the next areas, your Honours.

The Court of Appeal failed to apply the necessary approach that contributory negligence must be judged in the context of the nature of the defendant's negligence as found. Where the specific nature of the defendant has failed to take reasonable care, led directly to the plaintiff being exposed to the relevant risk because she was unaware of the proximity of the hazard thereby created, we submit that the fact that you have that natural, sequential outcome of the negligence itself must bear upon how you look at contributory negligence. In other words, it is a failure by the plaintiff to avoid a negligent situation created by the defendant's system. Now, there is not a word or thought of that in either judgment. In our submission, merely talking about the circumstances, et cetera, qua McLean v Tedman shows no sign that this principle is being adhered to.

Your Honours, the third matter is that the trial judge, at page 3 of the book, placed great emphasis upon the approach that the stand was an open and obvious structure. Justice Cole, at page 21, endorsed the same approach. We would submit that both judges show signs of having elevated the question of obviousness to the plane of legal principle and, in our submission, there is, of course, a distinction between an obvious structure and an obvious danger. But, in any event, the way that both courts treated the matter showed clear signs, in our submission, that open and obvious danger, as a concept bearing upon contributory negligence, is given a primacy which has displaced every other principle, bearing in mind that none of the other principles are even mentioned or show any sign of being adverted to.

Your Honours, the question of open and obvious danger is, of course, relevant in occupier's liability. The defendant, he was an occupier, not an employer. We submit that that is a concept which has bedevilled the law of occupier's liability, certainly overseas and certainly, based on this evidence, shows signs of doing so here unless corrected. We submit that the mere fact it is there to be seen in a different setting is entirely different from whether it is contributory negligence not to see it behind you and below you while you are performing your work.

Your Honours, the fourth matter we would argue is that as this Court stated as recently as last month in the case of Wynbergen v Hoyts Corporation, the Court was obliged to have regard to the whole of the conduct by each of the parties in terms of both causation and culpability. Neither court showed any signs of doing so. We would submit, measured by that necessary standard which, of course, this Court has recently affirmed, it is clear that the defendant's failure was a continuing failure whereas the plaintiff's failure was brief and transitory. It was the defendant, not the plaintiff, who created the risk, who controlled and directed the worksite and the plaintiff's work, caused the stand to be where it was and who, at no cost, in terms of the work or money, could easily and quickly have removed it. The plaintiff himself is powerless to control the work or remove the source of danger that is the stand.

The work was done by the plaintiff to advance the defendant's interests and assist others in doing their own work. The plaintiff, when he stepped back and fell was preoccupied with his own work. Other risks of injury and, in our submission, the work circumstances were truly scary, being high above the ground on a roof with an unguarded hole and then dealing, at the last moment, with two workers bringing a wobbly piece of roofing material 25 metres long towards him, so he steps out of the way. Now, in our submission, that set of circumstances only has to be stated for it to be recognised that it is a total failure to deal with the matter according to law, to say the stand was an obvious object, ie, visible on other occasions.

In our submission, we then come to the fact that there was no conscious taking by the worker of an unreasonable risk but rather a virtually automatic act by him to get out of the way of one hazard, as part of assisting with the work, that is, the men and the metal coming towards him with no consciousness at that particular time of the risk given those distracting circumstances of the work.

Now, your Honours, weigh those factors, one-third contributory negligence cannot stand up on any basis and we would submit that there is clear evidence that the approach your Honour Justice Hayne stated in Wynbergen of the obligation to take into account the whole of the conduct by each of the parties measured by reference to causation and culpability, that just did not occur.

Finally, your Honours, if I can say this, neither court showed any sign of having regard to the fact that the plaintiff's injury was due to forgetfulness, inadvertence, inattention or unawareness on his part. I appreciate they all overlap but, at best, you have a temporary misjudgment of an object that he has seen before but forgetting that it is behind him because he is dealing with an immediate task in front of him, that is, the risk of falling through the hole and the risk of impeding or being struck by the men coming from the right with the metal.

Your Honours, it is interesting that Justice Cole treated as being at the gravement of the plaintiff's fault, page 22 line 14:

In my opinion there was clear evidence of contributory negligence on the part of the appellant in not taking care for his own safety by being aware of obvious structures over which he might trip.

Your Honours, ordinarily not being aware at the time, is a basis for pointing to excusable inadvertence in the work circumstances. However, Justice Cole, and, indeed, the rest of the Court of Appeal, glided over all the other problems with Justice Hulme's judgment and found that the lack of awareness, at the time, of something behind him temporarily was at the heart of the contributory negligence warranting a one-third deduction. In our submission, the fact that he seized upon that factor, ie, lack of awareness, illustrates the extent to which error affected the determination. Thank you, your Honours.

TOOHEY J: We need not trouble you, Mr Hall.

This application, which involves a question of contributory negligence, turns on its facts and involves no question of general principle. There is no justification for a grant of special leave to appeal and the application must be refused.

MR HALL: I seek an order for costs.

TOOHEY J: Can you say anything about that, Mr Gross?

MR GROSS: No, your Honour.

TOOHEY J: It is refused with costs.

AT 11.53 AM THE MATTER WAS CONCLUDED