Van Der Sluice v Display Craft Pty Ltd S253/2002 [2003] HCATrans 816 (20 June 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S253 of 2002

B e t w e e n -

BENJAMIN VAN DER SLUICE

Applicant

and

DISPLAY CRAFT PTY LIMITED TRADING AS CHAS CLARKSON

Respondent

Application for special leave to appeal

GLEESON CJ

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 JUNE 2003, AT 9.33 AM

Copyright in the High Court of Australia

MR R.J. BURBIDGE, QC: May it please the Court, I appear with my learned junior, MR H.J. MARSHALL, for the applicant. (instructed by Beilby Poulden Costello)

MR C.R.R. HOEBEN, SC: May it please the Court, I appear for the respondent with my learned friends, MR F.J. DOAK and MR E.C. MUSTON. (instructed by Moray & Agnew)

GLEESON CJ: Yes, Mr Burbidge.

MR BURBIDGE: Thank you, your Honours. Your Honours, I wonder if I might take the somewhat unusual course of handing to your Honours a brief outline of the argument which I propose to advance to which outline is attached a three-page document which I do not ask your Honours to look at but it was a document which had been prepared for use in the Court of Appeal consisting of an extract of those matters which the parties took to be findings of fact by the Master and in respect of which it was thought no dispute that they were, indeed, facts. The relevance of that will emerge as part of our point 2.

Could I commence then by indicating to your Honours that this is a matter in which the plaintiff was following an employer's system of work which required him to climb up a ladder which was a self-supporting ladder, not propped against something, and to work overhead to a height which the Master found to be 4.8 metres high. The case for the defendant in essence was that, properly used, that system did not of itself constitute an unsafe system. The contrary was, of course, asserted by the plaintiff.

Now, your Honours, there is no suggestion that he was not following the system which had been set out for him by the employer. There was a peripheral or secondary argument which asserted that taking various measurements it could be seen that he should not have been on the second top step where he said he was and where the Master found him to have been, that is, a position where he was without support, save such support as could be obtained by pushing his shins against the top step.

GLEESON CJ: Is it fair to say, Mr Burbidge, that part of the system in an operation like this is that if you need to reach out too far from the ladder, you get down and move the ladder?

MR BURBIDGE: Well, that was a supposition which was advanced. At the end of the day, your Honour, there was no evidence of the frequency with which he moved. There was no evidence that he was reaching out to the side, although from our perspective it was, we thought, immaterial, but there was no evidence to that effect. The plaintiff himself has no recollection by virtue of the brain damage which he sustained when he fell. There was one employee present, unquestionably. That employee was not called and there was simply no evidence as to the frequency with which the ladder was moved, nor was there any evidence to the effect that the plaintiff had been leaning out to one side or the other.

GLEESON CJ: I presume the frequency with which the ladder is moved is a matter of personal choice of the person on the ladder.

MR BURBIDGE: Yes, plainly. It is to be recognised, your Honours, that the task in question involved slotting a hook into pre-existing slots half a metre apart and that the ladder itself was a little over half a metre wide. It follows, I suppose, that if one were to go up the left-hand side of the ladder, one would be reaching outside the axis of the stiles, marginally, and one would have another one close by and so on. As a matter of conjecture, one might think that he was doing two or three at a time, that is quite clear.

GLEESON CJ: You would please yourself whether you did one at a time and moved the ladder each time, or two or three.

MR BURBIDGE: That is correct, but - - -

KIRBY J: What is your theory, that the employer owed a duty to have somebody standing at the base of the ladder - - -

MR BURBIDGE: No, we had no reliance - it is true that there was some evidence about unevenness of the footpath and so on, but our proposition was simply that requiring a man to work from a base which was 11 feet high in the air without any means of support, save such as he could gain by pressing his shins against the top, was such a plainly unsafe system of work. So, plainly, foreseeable that he might fall, for whatever reason, inadvertence or overbalancing or whatever, that there was negligence demonstrated by that fact alone.

GLEESON CJ: I thought the evidence was that that system was safe enough, provided you do not try and reach out too far to the side?

MR BURBIDGE: Well, your Honour, there was a report put in, though the author was not called, in which an expert opined that a ladder could be utilised safely by moving it every time.

GLEESON CJ: Yes, but it depends on how often you are prepared to get down and move the ladder.

MR BURBIDGE: And a matter itself dictated to some extent, of course, by the circumstances of the pressure of time, as this was man unquestionably. He had received all that which he was obliged to use the previous day and was under instructions to complete the job that day. Some of the lower areas had been done by the other employee. He declined to climb up to the top of the ladder and the plaintiff then rose and attempted to commence to do the job himself until he fell.

It is true that subsequently the employer himself, using the same ladder, came back to the scene and completed the job without mishap, but there was no evidence of any of these matters. It is true that the Master found that this was a safe method and the Court of Appeal repeated that idea. But, in truth, the only line which had asserted that it was a safe method was an answer by the employer who said, "I don't know to what height I ascended on the ladder when I did it. I don't know what step I was standing on, but it was safe." Now, the words, "but it was safe", were then struck out. That was the only evidence. It does, however, appear to have made its appearance as a finding in the Master's findings and, as I say, it was picked up by the Court of Appeal.

Your Honours, could I just say, our first point, then, is this, that the approach which the Court of Appeal adopted is one which invites a significant departure from the line of country to which your Honour Justice Kirby made recent reference in Liftronic v Unver, that is to say, the recognition that there had been a series of cases in which the question of reasonableness had been to some extent recognised to be an insufficient or inadequate approach in circumstances of an employer/employee relationship.

KIRBY J: I was in dissent in Unver.

MR BURBIDGE: You were in dissent, your Honour, but I do not think that the principles which your Honour set out were in any way, with respect, controversial.

KIRBY J: I am not sure about that, because if those principles were applied in Unver, they led me to the opposite conclusion to that of the majority in the Court of Appeal and in this Court.

MR BURBIDGE: That is, with respect, correct, your Honour.

KIRBY J: I mean, if we look at it as a matter of principle, Mr Burbidge, here is a man up on the ladder, it is a very, very simply system of work. Unless you postulate somebody holding the ladder at the bottom, he really has complete control on whether or not he will get down and move the ladder. It is not in any way complicated. You cannot, as it were, look to the employer because it is complicated and you cannot attribute to the employee knowledge of risks of over-leaning and here the Court of Appeal has come to the conclusion that liability does not attach in those circumstances.

MR BURBIDGE: That is so, but it has done so without adverting to the approach which his Honour Justice McHugh asserted to be that which was always appropriate, namely, that it was a matter of the consideration of the factors so familiar from Shirt's Case, and there has not been any attempt to do that. What in truth has been done here is a subjective element has been introduced into the matter, pursuant to which it becomes or would become, if accepted, appropriate to judge matters on a subjective factor, namely, the employer's perception of the level of experience and expertise which the particular workman had. That, we would suggest, would be an abrogation of the development of the law in a very significant way.

KIRBY J: I take the point if there are complexities in the case, but in a series of decisions, some of which have been referred to, this Court has drawn a distinction of the ultra-simple case, the little tommyhawk, the getting up of the ladder. These are extremely simple system cases and - - -

GLEESON CJ: Although you would not need to tell most people who you sent off to chop wood to watch out for cutting their toes, but there may be some people who would need to be told that.

MR BURBIDGE: Well, your Honour, we rather put the case differently. We said that it was so plainly foreseeable that any person, experienced or inexperienced, who was required to ascend to a height of 11 feet in the air and then work above his head for a significant period of time, whether you move the ladder every time or every second time or whatever, it was so plainly foreseeable that he might tumble down, that a proper application of the Shirt's principles would lead to the recognition as the evidence was available that a simple trolley effect - which is readily hireable at a very cheap price - would have provided him with a safe platform from which to work. In other words, the place of work at which he was required to work was inherently unsafe for anybody.

GLEESON CJ: How tall was your client?

MR BURBIDGE: He was said to be about six feet, slightly shorter than the man who replaced him, the employer.

GLEESON CJ: This height of 11 feet to which you refer is what?

MR BURBIDGE: It is 12 feet - - -

GLEESON CJ: It is 11 feet from the ground to what?

MR BURBIDGE: Well, to be completely accurate, it was 3.34 metres less 300 millimetres, that is, the evidence made plain that - the other expert who was not called was presented with the actual ladder, measured it - - -

GLEESON CJ: Yes, but the 11 feet was from where to where?

MR BURBIDGE: From the ground to the step on which he was standing.

GLEESON CJ: Thank you.

MR BURBIDGE: That carries us into the statutory count aspect, which is the third point, but I pass from that for the moment. I wonder could I then take your Honours to those passages which we submit are relevant to consideration of what I may call the departure point. They are to be found first at page - - -

KIRBY J: Mr Burbidge, I have read the Court of Appeal reasons very carefully and I think you have some legitimate criticism, speaking for myself, of the reasoning that if, at the end of the day, we thought that if the matter came up here the net result would be the same, then we do not do your client any favour by bringing him up here to have the matter considered. Our job is to review the orders, ultimately, not to review the reasons as such.

MR BURBIDGE: I take that point, certainly, your Honour, but at the end of the day, we say we were entitled to have our claim that the system was, for experienced and inexperienced people alike, unsafe. It is, of course, blindingly clear, as everybody appears to agree, at least in argument, that plainly he might fall off; but the assumption that he did fall off because he did something to the side or whatever, there is simply no evidence of that, nobody advanced any evidence. The employee at the foot of the ladder was not called and, accordingly - - -

KIRBY J: He had done this manoeuvre before, had he not, on previous Christmases?

MR BURBIDGE: Well, yes. I will just read, your Honour, briefly if I may what - the fact of experience was heavily relied upon by his Honour the author of the main judgment. If I just read from page 7 - - -

KIRBY J: You can identify his Honour.

MR BURBIDGE: Yes, I will have to think for a moment who it was, your Honour. Paragraph 5, that matter itself was part of our complaint too.

GLEESON CJ: What page are you on now, Mr Burbidge?

MR BURBIDGE: I am on page 7, your Honour, but our - - -

GLEESON CJ: This is Master Harrison.

MR BURBIDGE: Yes, it is. But unless his Honour went back into evidence for himself, this was the totality of the evidence on this matter upon which his Honour placed so much reliance that he was - - -

GLEESON CJ: Master Harrison?

MR BURBIDGE: No, his Honour Justice Heydon placed considerable reliance on the supposed expertise - - -

KIRBY J: It is not expertise; it is just that he had done it before and it was very simple.

MR BURBIDGE: Well, he described it in a variety of ways, your Honour, but - - -

KIRBY J: Anyway, tell us what Master Harrison said.

MR BURBIDGE: She said:

In 1993 the plaintiff left his employment with Grace Bros.

He was 23 years of age, your Honour, and had left school early and so on.

He worked on a freelance basis . . . traded under the name of "Art of Display". This partnership was best described as a loose arrangement which operated out of the plaintiff's parents' rumpus room. Between 1995 and 1996 Art of Display carried out seasonal work for the defendant between September and January.

GLEESON CJ: What was the business of that firm?

MR BURBIDGE: It was providing labour for the purpose of putting up Christmas decorations, that was it.

GLEESON CJ: That sounds like a seasonal business.

MR BURBIDGE: Very seasonal, but we are talking about September 1995 to January 1996, that is it.

KIRBY J: An awful lot of Christmas decorations - - -

MR BURBIDGE: Well, yes, but how many of them require you to go up a ladder 11 feet and stand with your hands over your head? Not every one. The evidence was totally silent. It must not be assumed that every job required him to go up a ladder - - -

KIRBY J: I do not think it is a big factor. It is a factor. He had done it before. It is not as if he was doing it for the first time.

MR BURBIDGE: Well, your Honour, I content myself with observing that his Honour at pages 114, 117, 118, 119, returned to this theme of the experienced worker on a number of occasions. With respect, that was not supported. Our complaint in this area is we did not have any chance to address these ideas. We had no idea he was to be labelled an experienced worker and so on. We would have had an opportunity to go back to the evidence and talk about it.

GLEESON CJ: Where did the question of epilepsy come into this case, Mr Burbidge?

MR BURBIDGE: He had had an incident earlier, your Honour.

GLEESON CJ: Was one side or the other suggesting epilepsy may have been the explanation?

MR BURBIDGE: Yes, it was put forward as part of the plaintiff's case that, having had an earlier episode of an indeterminate nature, perhaps it was unwise of the employer to let him go up in those circumstances and maybe it was epilepsy.

GLEESON CJ: So he was relying on a suggestion that epilepsy - - -

MR BURBIDGE: We relied on it initially. That was found against us and no complaint was made of that in the Court of Appeal. It has, in a sense, disappeared, your Honour. But at the end of it we come back to this proposition that their Honours discarded the totality of the facts on which the parties had argued the case, re-examined for themselves the evidence in a way which, with great respect, led to some serious errors, we would say, particularly of logic. Could I, for example, take your Honours to 107. I know I am perilously thin for time and what I would like to do, your Honours, is simply draw attention to two passages, the first at the foot of page 107:

If Tim Clarkson did the work without mishap, without the ladder being held and without sideways leaning -

no evidence of the third proposition -

and the plaintiff did the work without the ladder being held -

a matter on which there was no evidence at all -

and with sideways leaning, the cause of the plaintiff's mishap was likely to be the sideways leaning.

That was the first passage. The second passage to which we would draw attention, in the context of our having no opportunity to address these ideas, is at 118, where in paragraph 73 his Honour observes this:

the Master did find that any risk could have been acceptably obviated by asking another person to hold the ladder -

I stop there. That was not our case at all because we did not know whether somebody was holding the ladder or not.

GLEESON CJ: But the Master found, did she not, that your client mostly likely fell because he leaned out too far from what you call the frame or something?

MR BURBIDGE: There was an examination of that from beginning to end and it is clear there was simply no evidence to that effect. That was a supposition of the Master's. Now, it is true that we did not trouble much about it, taking the view that a person standing at that height was in any event - - -

KIRBY J: Is it not a sensible inference?

MR BURBIDGE: Well, it may well be, your Honour, but it does not negate our case that he was obliged to do it and anybody, experienced or inexperienced, might under the pressure of time reach out to the left and to the right to do three spots rather than one on a ladder that is half a metre wide.

KIRBY J: Yes, one can understand how it happens, but it is a very simple system and it can be avoided by him just getting down a few more times.

MR BURBIDGE: No, with respect, no, there is no evidence that he did not get down. He might have fallen for any one of a number of reasons.

KIRBY J: No, but in principle you do not expose yourself to moving from the fulcrum as much if you keep moving the base of the fulcrum.

MR BURBIDGE: Your Honour, there is no question that it can be used without mishap. So much is proved by the fact that it was. But that, with respect, does not alter the fact that it is a system which, no matter how simple it is, is liable to lead to injury, as it did. It could have been simply obviated by the use of a trestle.

KIRBY J: I understand that. What is the statutory count point? Remind me of that.

MR BURBIDGE: The statutory count is that you may not use a ladder - you may not work at a height of above 1.8 metres, which was common ground that he was, though the statute was not pleaded. You may not do that without making security arrangements.

KIRBY J: Was the statute used in support of the common law count?

MR BURBIDGE: No.

KIRBY J: So the statute fades away, really, does it?

MR BURBIDGE: Overlooked in its entirety. Could I just finish - - -

KIRBY J: Because I remembered that there was a statutory count.

MR BURBIDGE: It was originally scaffolding and lift became part of the occupational health and safety - - -

KIRBY J: In the old days, you would have a checklist before you and you would put it in the pleading and you would plead it as supporting the common law count as well.

MR BURBIDGE: You would, with respect, yes. Could I just complete the reading of this one line, your Honour:

the Master did find that any risk could have been acceptably obviated by asking another person to hold the ladder (which the plaintiff did not do) -

no evidence of that -

or moving it more frequently -

no evidence of that -

Counsel for the plaintiff challenged the conclusion that the plaintiff did not give that direction, but it was a reasonable inference from the fact that no-one was in fact holding the ladder.

So we have supported by inference a fact of which there was no evidence by creating another fact of which there is no evidence. Now, these things - - -

KIRBY J: But, let us be realistic, if there had been somebody holding the ladder, either (a) it would not have slipped, or (b) the witness would have been there and have come along, one would think.

MR BURBIDGE: Well, with respect, your Honour, he may have fallen. As I say, we did not endeavour to say that it slipped at all. We said that the system of climbing to the top of the ladder unsupported and working overhead is so obviously, inherently unstable that application of Shirt's Case required it to be looked at and done differently. That is our case in a nutshell. May it please the Court.

GLEESON CJ: Thank you. We do not need to hear you, Mr Hoeben.

We would not necessarily agree with all the steps in the reasoning of the Court of Appeal, but we are unconvinced that the conclusion reached by the Court of Appeal was wrong or that there would be reasonable prospects of success were special leave to appeal granted. The system of work involved was extremely simple, and, in effect, the applicant was fully able to avoid the accident that occurred. Special leave to appeal is refused with costs.

AT 9.56 AM THE MATTER WAS CONCLUDED