Thompson v Woolworths (Q'land) Pty Ltd [2004] HCATrans 336 (10 September 2004)

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Thompson v Woolworths (Q'land) Pty Ltd [2004] HCATrans 336 (10 September 2004)

Last Updated: 14 September 2004

[2004] HCATrans 336

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B2 of 2004

B e t w e e n -

THELMA JEAN THOMPSON

Applicant

and

WOOLWORTHS (Q’LAND) PTY LIMITED ACN 000 034 819

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 2004, AT 10.23 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR M.E. ELIADIS, for the applicant. (instructed by Shine Roche McGowan)

MR J.A. GRIFFIN, QC: May it please the Court, I appear with my learned friend, MR M.T. O’SULLIVAN, for the respondent. (instructed by Blake Dawson Waldron)

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, this is a case where by confining the appellant interference to what might be called secondary conclusions decisive of the matter without overturning any of what might be called the primary and in some cases the inferred findings of fact by the trial judge the Court of Appeal has left for this Court the possibility of examining an important matter both of practicality and principle in this area of litigation. In particular, they have themselves adopted in the majority in the Court of Appeal certain conceptual language which raises a very important issue in relation to what might be called the notion of personal responsibility in relation to the scope or content of a duty of care which may be owed to a person who has that personal responsibility because in the Court of Appeal, the allied concepts of voluntary conduct on the part of the plaintiff and the notion of being the author of her own misfortune or injury played the decisive role. It was, of course, against a background which was treated as equally weighty but which could hardly be regarded as an unfamiliar one, namely that the plaintiff herself was aware of the risk involved for her body, being petite as the findings show, in moving that which rather larger males were able to move with less risk – not with no risk but with less risk.

KIRBY J: She was described as a petite person and the bins were substantial and I think she had had an injury to her back quite proximate to the incident. Is that not correct?

MR WALKER: Not from moving the bins, but of a - - -

KIRBY J: No, but she knew that she was not - - -

MR WALKER: That is why I draw it to attention immediately.

GLEESON CJ: But did not the decision of the Court of Appeal turn on what appears on page 54 in paragraph [23] in the third sentence? Is that not the point of departure between the - - -

MR WALKER: Your Honour is referring to “Given the irregular times”?

GLEESON CJ: Yes.

MR WALKER: No, it is certainly true that in that part of the reasons that is an important part of what might be called a second level response to the appeal, but that did not dispose of the scope or content argument.

KIRBY J: What is your answer to that point, because I have to tell you that from a practical point of view, if you ask what more could the occupier have done you have to be able to answer that. As I understand it, you say there was a system that could have addressed and should have addressed in the circumstances of knowledge of the risk - - -

MR WALKER: These are bins which, as our client’s husband had himself observed in rather pointed dialogue with an agent of or servant of Woolworths, were made for machine manipulation. Your Honours are probably familiar with that kind of bin. They are not designed and made for manhandling, let alone woman-handling. Forbidding that to be done may well be thought to have been, for example, in an employment relation something which would be quite obvious. It is no less obvious when Woolworths knew that these people, not their employees but very important for their commercial benefit, the delivery people - - -

KIRBY J: But here is a person in the middle of a very busy bread run. She is rushing around. This is just one of her customers. She comes to it and yet again there are these bins in the way.

MR WALKER: The common law would certainly not frown on someone’s eagerness to get about their own job quickly rather than slowly. The notion of - - -

KIRBY J: Not at all, but what do you say the occupier should have done?

MR WALKER: There should have been certainly an outright prohibition on it being moved by anything - - -

KIRBY J: We all know that does not work very much. You know you say, “Do not move our bins”. That does not work because people are busy. They are focused on their own job. They do not have the time to wait 15 minutes and they just will try to do their job and get on with it. That is the nature of the market.

MR WALKER: That is the first part of my answer. The second part of my answer is that there should have been vehicular access away from the laneway. The third part of the answer is that there should have been a system by which what is called “the irregular times” was simply monitored day by day, which is easy.

KIRBY J: But even that, the point - - -

MR WALKER: Someone’s job is to check when the bins have been emptied, have they been left in the way of delivery people and, if so, move them out of the way.

KIRBY J: I think your second answer is better. The third answer is not very convincing because as Justice Williams points out you cannot just have somebody standing there all day moving bins.

MR WALKER: No, you do not have to stand there - - -

KIRBY J: The buzzer is the way to get them and 10 to 15 minutes is - - -

MR WALKER: Your Honours, oil and grease on a driveway, dropped fruit and vegetables on a shop floor; these are things which need to be monitored from time to time. They do not involve sentries everywhere with that as their sole duties. It is a matter of reasonableness. His Honour found, it was not disturbed on appeal, that there were reasonable ways in which the irregularity of when the council had emptied and simply left these bins in an obstructive position there were ways in which that could be dealt with. Now, the defendant knew about both the irregularity of the time and the difficulty that moving these bins posed for people as small as my client.

GLEESON CJ: How often did the council empty these bins?

MR WALKER: I am not sure whether the record reveals it. It is not daily. I think it is something in the nature of two or three times a week, your Honour. In other words, it was as one would expect with all sanitation arrangements something which was an essential part of occupying for their profit and their business those premises. Having the bins emptied was part of what they needed in order to make the occupation of their premises profitable. Delivery by people such as my client was part of what they needed to make occupation of their premises profitable. We were not, as it were, an officious intruder into their commercial space at all, far from it. That is why, in our respectful submission - - -

GLEESON CJ: Well, before the great reform in the law of negligence in Quinlan and so forth, your client would have been in that highest level of people, would she not, somebody entering under a contractual right?

MR WALKER: Yes, certainly by an implied invitation.

GLEESON CJ: I would have thought it would be higher.

MR WALKER: Higher, yes.

GLEESON CJ: Was she not there in performance of her contract?

MR WALKER: I am not quite sure it was a contract with the occupier. Yes, she had a contract to deliver the material.

GLEESON CJ: But not with Woolworths.

MR WALKER: I do not know that it was with the defendant, the contract for delivery.

KIRBY J: It would sound like it. She is delivering bread to Woolworths to be sold, is she not?

MR WALKER: It was, your Honour. I would say yes, she would be in the highest class. Now, for those reasons - - -

KIRBY J: Under the old law that was to take all reasonable care to protect the person entering as of contractual right.

MR WALKER: Yes.

GLEESON CJ: I thought it was to make the premises as safe as they could be made for the purpose of the contract.

MR WALKER: Yes, but with reasonableness.

GLEESON CJ: Yes.

MR WALKER: Now, both in answer to the old law as thus formulated and the law as it now stands. However, the conceptual approach taken by the majority in the Court of Appeal and, with great respect, cogently resisted by the dissenting reasons of Justice McMurdo, the conceptual approach taken is that if the plaintiff is aware of a risk, and one interpolates there would be very few relatively dangerous workplaces where an employee with a modicum of commonsense would not be aware in general terms of most of the risks, it cannot be that there is no duty of care except to warn.

If the plaintiff knows of a risk and if the plaintiff thereafter proceeds to choose to carry out the conduct which imports some degree of risk, then because of that - and there are no other circumstances relied upon by the majority - the scope or content of the undoubted duty of care, because that is got out of the way very quickly in the reasoning, is cut back so as not to require anything to have been done which would have addressed by way of deterrence or assistance that which, ex hypothesi, they reasonably expected would happen, namely, she would voluntarily choose to move the obstructing bins out of the way herself.

GLEESON CJ: You may be right, Mr Walker, but what is troubling me at the moment is that it all does seem to come down to an extremely narrow point, does it not, and that is the view you take of the reasonableness of a system that provides for her to ring a buzzer and wait 10 to 15 minutes for an employee to come and move the bins for her.

MR WALKER: Well, the findings as we - - -

GLEESON CJ: That was the system, was it not?

MR WALKER: Yes, that was the - I might call it the ideal system. The findings to which we have drawn attention in both chief and in reply in our written submissions make it clear that there were relevantly proximate experiences that one could not rely on that system. There had been unco-operativeness - - -

KIRBY J: You ran a case at trial which the trial judge accepted that there was a proper system and that that involved providing vehicular access with the bins out of the way.

MR WALKER: Yes, that is right.

KIRBY J: And that was accepted by the primary judge.

MR WALKER: The trial judge also accepted that it was reasonable for my client to have attempted to move it bearing in mind her experiences of the supposed buzzer system and assistance coming. That was not challenged or disturbed by the Court of Appeal.

KIRBY J: So the real question you tender for us is whether or not the Court of Appeal in disturbing what you say was the correct approach of the trial judge, erred in the way in which it focused effectively solely on the buzzer, whereas you had a dual case, you had the buzzer and the reasonableness of her not waiting but also the primary, or a case accepted by the primary judge that there ought to have been a system by which these bins were moved because the respondent was on notice that that would cause injuries otherwise.

MR WALKER: Yes, and in particular that which makes this of general importance in this area of the law and of practical importance for people trying to order the way in which they do go about their business. The concepts upon which the Court of Appeal’s decision against us turned take the fact of voluntary action by the plaintiff being aware of the risk as dispensing by removing from the scope or content of the undoubted duty of care, dispensing the defendant from doing anything notwithstanding that the very circumstances, the very same circumstances which made my client aware of this risk were, of course, equally if not more plain to the defendant.

Now, in our submission, that sits most oddly with ordinary commonsense understanding of how negligence can be committed between two people in ordinary relations, be they employment, be they on premises or be they in any of the other ways in which physical injury may be incurred by reason of someone else’s carelessness. Usually the conduct of the plaintiff, vis-a-vis the defendant, I there use an expression used by the Chief Justice, is voluntary.

The waterskiing in Shirt v Wyong was not a compelled occupation at the behest of the council. Walking into a supermarket and deciding to go to the vegetable area is not a compelled, however much Woolworths may want it to be, activity at the behest of the occupier of premises. The voluntariness of the action is nothing other than a circumstance to be taken into account in considering whether it would be reasonable for the defendant to have done something to avoid the way in which this plaintiff happened to incur her injury, and there must be many voluntary cases of high risk taking by a plaintiff where the court will readily say the nature of what the plaintiff did was unreasonably - - -

KIRBY J: Well, most action by people is voluntary.

MR WALKER: Quite.

KIRBY J: It does not seem to be – did Justice Williams put emphasis on the voluntariness or is this just Chief Justice De Jersey’s view?

MR WALKER: Yes, indeed. If one goes to paragraph [26] in his Honour’s reasons on page 54 of the appeal book, the third sentence:

The respondent was under no obligation to move the bins and she fully appreciated that . . . it was a voluntary decision made by her because she perceived it to be for her own convenience to do so.

GLEESON CJ: Well, that is an answer to the proposition that was argued and is recorded in the first sentence of that paragraph. That is put by way of meeting an argument on your side that no employee had specifically forbidden her to move the bins.

MR WALKER: Quite.

GLEESON CJ: Was that part of your particulars of negligence, that they should have forbidden her to move the bins?

MR WALKER: No, but certainly there should have been a system by which their employees, not the delivery people, moved the bins.

GLEESON CJ: Well, there was. The trouble is you had to wait 10 to 15 minutes for them to get there.

MR WALKER: It was worse than that. It was a system which the trial judge found did not operate with sufficient reliability to render it reasonable for the plaintiff to rely upon it or for others to rely upon it for that matter. It is for those reasons that, in our submission - one can see it is very clearly in the Chief Justice’s reasons and equally clearly but contextually, as the Chief Justice has pointed out, in Justice William’s reasons there is emphasis laid on voluntariness in a way which intrudes an element quite alien to what Shirt, for example, requires the putative defendant to think about as to the circumstances for which they are responsible. There is no doubt that - - -

KIRBY J: I will tell you what concerns me, Mr Walker, and it is this. This looks on the face of things to be yet another case where the High Court of Australia is examining very detailed facts to come to a different conclusion.

MR WALKER: But with the virtue here that none of the primary facts very clearly found by the trial judge has been challenged in the Court of Appeal or would be challenged in this Court.

KIRBY J: So you presented in your argument to be a sort of Trojan horse for the reintroduction of volenti into this area and yet that passage that you took us to in Justice Williams’ reasons does not seem to be elevating it to a volenti principle. He is just argumentatively answering the point.

MR WALKER: Well, your Honour, there are paragraphs [12] and [13] on page 52 in the Chief Justice’s reasons.

KIRBY J: When I first read it, I must say I thought that maybe the Court of Appeal majority had lifted issues of voluntariness and her own responsibility out of contributory negligence up into the duty point.

MR WALKER: Yes, and that is the last point I wanted to develop. The approach which has been taken in this case renders familiar provisions, in this case it would be section 10 of the Law Reform Act 1995, a dead letter; because by eviscerating the scope or content of the duty of care of any requirement to take account of the voluntary undertaking of a reasonable task by somebody aware that it carried a risk, but removing that from the scope or content of the duty it prevents, of course, there ever being a breach of a duty, thus it prevents there being a wrong, to use the word, in that contributory negligence statute. So that if somebody does something which renders themselves the author of their own misfortune in the sense emphasised by Justice Williams and Chief Justice De Jersey, that is, to use the Chief Justice’s language:

the appellant, chose unnecessarily to take that risk, the existence of which was clear to her. It is not explained by any tortious breach on the part of the appellant.

That means there can never be scope in the ordinary, commonsense context in which one would expect it to apply for this notion of a claimant suffering damage partly because of the claimant’s failure to take reasonable care and partly because of the wrong of someone else.

For the tort for which that statute is most obvious devised, namely the tort of negligence, this is reasoning which removes contributory negligence entirely from the field leaving the notion of a voluntarily undertaken course of action by somebody who as a matter of commonsense is aware of a risk as removing that person from the scope or content of the duty of care which in some etiolated way is still assured to that plaintiff that decisions in this case – the reason in this case, all start by protesting, of course there was a duty of care.

It was just not a duty to take any step which would make safer that which Woolworths well and truly understood was likely to be done, albeit in that somewhat slighting expression of Justice Williams’ “for the plaintiff’s own convenience”. This convenience, of course, is a matter of mutual benefit to both parties. Could I correct something? As I understand it the contract in question was a contract with the baker to cart and Woolworths was one of the customers of the carter.

KIRBY J: I do not understand that.

MR WALKER: The contract was with the baker to cart the baker’s bread.

HEYDON J: Cobbity Farm Bakeries.

MR WALKER: Cobbity Farm to cart the bread - Woolworths was one of the baker’s customers.

GLEESON CJ: Thank you, Mr Walker.

KIRBY J: Justice McMurdo increased the contributory negligence, is that correct? He also allowed the appeal and increased the allowance for contributory negligence to a third.

MR WALKER: Made an allowance where none had been made at trial and that, in our respectful submission, demonstrates the cogency of Justice McMurdo’s approach that if there is to be account taken of that matter in a case such as the present it is under contributory negligence.

GLEESON CJ: Thank you, Mr Griffin.

MR GRIFFIN: If the Court pleases. Just a factual matter, the bins were on wheels and were empty. I think my learned friend said something inconsistent with that.

KIRBY J: Are you saying they are a trifle just to be pushed out of the way by anybody including a petite woman?

MR GRIFFIN: Easier to push than if they are not on wheels. The contract was with Cobbity Farm Bakeries.

KIRBY J: That does not seem a very good opening gambit. Next you are going to be putting them without wheels even though you know that somebody comes along delivering in your premises, that they are very heavy and that they have caused trouble in the past.

MR GRIFFIN: Yes. I do not say anything contrary to any of that but it was just because my friend said something that might have indicated that they were not on wheels that I made that point. The contract was with Cobbity Farm Bakeries. That appears at page 2 of the application book and his Honour dealt with that.

KIRBY J: But they would have a contract with you and this is somebody delivering to somebody who has a contract with you.

MR GRIFFIN: Yes, that is so, your Honour.

KIRBY J: You knew that they were coming and coming regularly and delivering. I think there would be a strong argument that you should have a system in place that allows for access of that person to deliver without having the obstruction of these big bins.

MR GRIFFIN: That is true, and the system was that there was a buzzer. It was not that it took 10 to 15 minutes for them to respond. The evidence was that it took up to 10 to 15 minutes. It might be an immediate response but the evidence was that on occasions it could be as long as 10 to 15 minutes.

KIRBY J: What if the barristers kept 10 or 15 minutes on this level, waiting. The meter is ticking by. You would rush down the steps.

MR GRIFFIN: Yes. Your Honours, it is correct to say that the trial judge accepted the evidence that when Mr Bennett was the storeman her practice was not to push the buzzer because she would not be favoured with a timely response, but in cross-examination the applicant acknowledged that she knew that if she pushed the buzzer a store person would appear ultimately.

KIRBY J: “Ultimately” is the problem.

MR GRIFFIN: Yes, and that store person would either move the bins or deal with any other aspect relating to her delivery.

KIRBY J: Yes, but given that you knew that there was this problem with the system why was not the primary judge entitled as the judge at trial to reach the view that you ought to have had a system in place that provided for access without the necessity of doing this. I mean, it is not a big ask.

MR GRIFFIN: No. Your Honour, it was around about 5 o’clock in the morning. There was only one person on duty - - -

KIRBY J: A quarter of an hour at 5 o’clock in the morning is even more precious.

MR GRIFFIN: True, but one must bring into account the fact that the respondent’s entire organisation was not present at the time. In fact, some of the deliveries were even earlier than 5 o’clock. One has to also bring into account the fact that the deliveries were random. They were made between 4 and 6 in the morning but there was no warning from the council as to when they were going to be made and no schedule given to Woolworths. So you had one person on duty who obviously had to attend to other things who was doing the things that he had to do to set up the store for the day and it is in that situation that there was some delay on occasions. As Justice Williams said, that was not an unreasonable delay in the circumstances.

KIRBY J: Why was it not open to the primary judge to take the view there ought to have been some system in place whereby the deliverer would have access without presenting this problem?

MR GRIFFIN: It was, but there were other factors in the case as well that had to be brought into account such as the fact that she was simply making a voluntary decision to move these bins - - -

KIRBY J: That is the special leave point, you see, because that is, as it were, shifting contributory negligence up into the duty point. It is really reviving volenti after we thought we got rid of that early last century.

MR GRIFFIN: Yes, we submit that would certainly be a factor that would be relevant if a volenti issue were pleaded, but it is also relevant to the issue of primary negligence.

KIRBY J: Yes, but the complaint is that this is really volenti masquerading as a disqualification from the duty.

MR GRIFFIN: Well, in our submission, it is not. It is simply taking into account a factor which would be relevant on an issue of volenti but which is also relevant to primary negligence and there are plenty of matters that fall into that category. On the question of her making this voluntary decision, it needs to be appreciated that if she had not moved the bins all that would have happened was that either a storeman would have moved them or her husband would have arrived and then they would have been moved - - -

KIRBY J: And he would have moved them. That was the system you had in place that it depended at 4 am possibly on the husband turning up to move the bins. It does not sound a very sound system.

MR GRIFFIN: Well, your Honour, it is not as silly as it sounds because, in fact, she could not deliver the bread to the loading dock until her husband arrived. Her evidence was that she would wait for her husband to get there to load the bread. So she really did not even save any time, any appreciable time by moving these bins herself.

KIRBY J: Well, 4 am, this is a husband and wife team, they are working as hard as they can at that hour of the morning. A quarter of an hour is a long time at 5 am and even longer at 4 am. She is trying to help in their little business. You knew that she endeavoured to move these bins. Why was it not open to the primary judge to say you should have had a better system?

MR GRIFFIN: Well, as I said - - -

KIRBY J: You can devise these systems.

MR GRIFFIN: The system, or the adequacy of the system was only one of the factors to be brought into account in determining whether or not the occupier’s conduct was reasonable. It was the Court of Appeal which weighed up those factors, in our submission, correctly. For example, the fact that the risk was an obvious risk to her, that was something that did not really feature in the analysis of the learned trial judge, but was brought into account, in our submission, correctly, by the Court of Appeal.

KIRBY J: It was brought into account correctly by Justice McMurdo as a matter of contributory negligence.

MR GRIFFIN: Your Honour, it is not merely a matter of contributory negligence because, for example, if one takes the Woods’ Case, the fact that it was obvious that - - -

KIRBY J: Yes, but that was voluntary participation in a dangerous game. We are not talking about that. We are talking about delivering bread to a large supermarket.

MR GRIFFIN: We are, but if we are talking about the obviousness of the risk, in the Woods’ Case, as in this case, the risk was obvious to the plaintiff. In her case she had even written in her diary that the bins were too large for her to move. She had done that some months before this event happened. In addition to that, only a couple of weeks earlier she had hurt her back, injured her back in lifting bread. It is in that context that she moved these bins on this occasion and not only did she move them, she continued to move them after they jammed in some way and pushed as hard as she could.

KIRBY J: But, Mr Griffin, you might win the appeal but is not the point of how the law approaches the question of voluntariness as relevant to the duty as distinct from coming in the fourth step at the end when you are looking at contributory negligence. Is that not an important question to be clarified?

MR GRIFFIN: Your Honour, it is an important question but it is not the first case in which that has occurred. It is not the first case in which the risk has been obvious to the plaintiff. It is not the first case in which the conduct of the plaintiff has been voluntary.

KIRBY J: It is a case where a plaintiff has been deprived of a verdict to which the trial judge, who had certain advantages, entered on the basis of his assessment of the matter and deprived of it on the basis of her voluntary action. It is the first case I have seen in recent times. Now, leave aside cases of dangerous games, this is really a quasi-employment type case. It is not employment because they are not in employment relationship, but it is a sort of situation where she is delivering bread for an interest which they have and there was a system that was defective and it said she is not entitled even to get to first base because she could seek the risk. If you look back on things everybody can see risks.

MR GRIFFIN: Yes. Well, it is really a matter of weighing up these factors. It is a matter, as Justice Williams said, of weighing up these facts and applying established principles to these facts. In our submission, that is not an appropriate case for special leave. That is what the learned trial judge did. That is what the Court of Appeal did. The Court of Appeal said that he had not given sufficient attention to the fact that the risk was obvious, not only to the defendant but also to the plaintiff, and had not paid sufficient attention to other matters such as the fact that she was not an employee and was an independent contractor at most.

In our submission, the review of the matter by the Court of Appeal was correct. The various factors that were taken into account were matters that plainly are appropriate to be taken into account in a case of this type. In Woods, your Honour the Chief Justice said that it was right to describe the statement that your Honour Justice Kirby made in Romeo with respect to the obviousness of the risk as a comment; but your Honour went on to say that nevertheless, as a generalisation, what his Honour said was fair comment and your Honour said that - - -

KIRBY J: I will go out of this Court with that comment burning on my heart because it has been put up as if it is a complete answer, but if a risk is obvious then you as the occupier with great resources have the added obligation to attend to it. I mean, you are not some small tin-pot company, this is Woolworths.

MR GRIFFIN: Yes, but, your Honour - - -

KIRBY J: You would have systems experts and people to advise you on these things. If it is obvious to the plaintiff, a little business person, it certainly is obvious to Woolworths.

MR GRIFFIN: Your Honour, that works both ways. The more obvious it is to Woolworths the more obvious it is to the plaintiff and, indeed, it was more obvious to the plaintiff in this case than it was to the defendant. It was the plaintiff who knew that she had injured her back - - -

GLEESON CJ: I am reminded by what was just said that I think I asked the Registry to inform the parties that I own some shares in Woolworths.

MR GRIFFIN: Your Honour, no one has any objection to your Honour sitting.

MR WALKER: My friend speaks for me, your Honour.

MR GRIFFIN: What I was saying your Honours was that it was more obvious to the plaintiff in this case than it was to the defendant because she was the one who had injured her back about two weeks previously. So she well knew that if she did something that involved the application of force then she was liable to injure her back.

KIRBY J: It is a question of relativity of responsibility; a small business person with a husband out there at 4 am is going to do her best and you are on notice of this problem and you just thought it was enough to make them wait around at 4 am for up to a quarter of an hour.

MR GRIFFIN: Your Honour, it is all a question of the appropriate judgment on those facts as to whether or not the occupier acted reasonably. The way in which the Court of Appeal proceeded is consistent with that statement to which I have just referred and is consistent with other developments in the law such as Brodie’s Case, that the formulation of the duty of care in the case of highway authorities must bring into account the proposition that the road need not be safe in all circumstances but rather for road users that are taking care of their own safety. What the learned trial judge failed to do in this case was to give proper weight to that type of consideration and that was identified by the majority in the Court of Appeal.

GLEESON CJ: What did the trial judge find would have been a better system to deal with this problem?

MR GRIFFIN: Two things: first of all that they could have arranged their laneway arrangements such that the council trucks did not have to go to this area. They could have had access elsewhere, in other words, gained access to the area where the bins were without coming to this laneway, or alternatively, they could have had a better system for responding to the arrival of the council, that is to say that they could have ensured that there was an employee who was on the spot to move the bins the moment the council emptied them.

GLEESON CJ: This must have been a problem for everybody delivering goods to this supermarket area early in the morning.

MR GRIFFIN: It was and there was other evidence to the effect that the other people that came there early in the morning did move them. But there, of course, was a major difference between the plaintiff and the others in that the evidence was that whilst the movement of these bins involved more force than was appropriate in the case of a woman that was not the case in relation to men.

KIRBY J: You have to be careful now. There are some women who are stronger than some men.

GLEESON CJ: You have been guilty of stereotyping, Mr Griffin.

MR GRIFFIN: Sorry, your Honour. There was no evidence that there was any problem about the male delivery drivers pushing these bins.

KIRBY J: No, but there was knowledge of this particular plaintiff’s disability, that she was a small person and that that created a problem for her moving these big bins.

MR GRIFFIN: There was, but one has to remember she was the only female that came there in the morning. So if one is saying they had to have an appropriate system because these delivery drivers might push the bins, one has to recall that there was no danger except in her case and in relation - - -

GLEESON CJ: You mean a big, strong woman would have been all right.

MR GRIFFIN: Well, that was the effect of the evidence. Indeed, the same applied in relation to her moving the bins with her husband. Her evidence was that she ordinarily moved the bins with her husband but she did say that there were 20 to 30 occasions when she had moved them by herself. But it needs to be appreciated that, as our learned friends have agreed, there was no evidence that Woolworths knew that she had moved them on 20 to 30 occasions. There was evidence that on one occasion, Mr Thompson, the storeman who was ordinarily there, saw her moving the bin and he took over from her. There is dispute between us as to whether that was a warning or not. We say that was a warning to her. Our learned friends say it was not.

KIRBY J: It might have been a warning to you.

MR GRIFFIN: Yes, but that is one occasion. The other occasion was she said that there was an occasion when she was about to move the bin and Mr Bennett was present and he moved away, but that is the sum total of the evidence as to Woolworths knowing that she would move the bins.

KIRBY J: Pretty strong. It has put you on notice, it is your manager.

MR GRIFFIN: Yes, but it certainly falls very short of any proposition that they had seen her move the bins 20 to 30 times. Your Honours, in conclusion, it is our submission that the Court of Appeal correctly assessed the matter which the learned trial judge did not. There is nothing unusual
about the case either in terms of the conduct of the plaintiff being voluntary or in terms of the risk being obvious to her or anything else that involves anything special. There was not any elevation of any principle or any movement of any principle from voluntary assumption of risk or contributory negligence to primary negligence. We are simply taking into account a case of taking into account all the factors that were relevant to primary negligence and, in our submission, there is no basis for special leave being granted.

GLEESON CJ: Thank you. Mr Walker, the argument against you is that the obviousness of the risk was simply one of the factors taken into consideration in judging the reasonableness of the conduct of the occupier. What do you say is the point of principle that the case raises?

MR WALKER: The point of principle is that the voluntariness of my client’s action, given the so-called obviousness of the risk, was the reason why the scope or content of the duty of care was cut back by the majority in the Court of Appeal, not a mere contributing factor, it was the reason. Their Honours were at some pains to protest that they were not overturning the primary findings of the trial judge. My friends have been even more vociferous in protesting that they did not challenge findings of the trial judge but rather they invited in the Court of Appeal and succeeded in persuading the majority to draw a different conclusion on what Justice Hayne has called the normative final step of the matter. Now, in our submission, the point of principle - - -

KIRBY J: I must admit I am rather persuaded by what Mr Griffin said concerning the point of the buzzer and summoning people. It certainly would be open to the Court of Appeal to say as Justice Williams did, but what about the alternative theory, the laneway theory? Was that damaged? Was that shown to be unavailable to the primary judge?

MR WALKER: No, there was no challenge to the primary judge’s plain finding that that was reasonable, perfectly feasible and no challenge at all in the Court of Appeal or by the majority in the Court of Appeal to that. That would have simply avoided - - -

KIRBY J: How did their Honours overcome that because that was an alternative proposition?

MR WALKER: Simply that was a way of avoiding the whole problem. So in answer to the Chief Justice’s question, the point of general principle that arises is why is it decisive, not merely an unremarkable relevant factor, which of course it is, but why would it be decisive to characterise someone’s conduct as deliberate or voluntary, that being the case in our society for most people in most things they do and second, how could it possibly be the case that being the author of your own misfortune reduces the scope of the content of what they protest to be clearly an existing duty of care, that is to defeat contributory negligence, apportionment statutes.

The common law ought to accommodate and make meaningful statutes which are part of a seamless web of which both common law and statute are part and the law of negligence is one of those. The common law here is subverting or directly contradicting the contributory negligence approach and volens is being brought back by a back door.

The problem in this case was well stated by the trial judge in findings which were not challenged in the Court of Appeal and which were not overturned to any degree. Page 29 of the application book, paragraph [74]:

I find [Woolworths] accepted that as between [Woolworths] and the delivery drivers it was [Woolworths] responsibility to move the bins into the latticed area -

that is, out of an obstructive position. Paragraph [75]:

I find the bins on the laneway were an obstacle for the delivery drivers making a delivery to [Woolworths]. Further, [Woolworths] knew the bins on the laneway were an obstacle for the delivery drivers making a delivery to [Woolworths].

Once you put together those matters, not challenged, then this notion of the plaintiff as the author of her own misfortune really depends upon some rather disapproving flavour to the idea that she was doing things for her own convenience. She was working hard in a very small, modest business of deliveries in which this was not the only or last place to which she had to make a delivery.

It would be an astonishing common law judgment that Woolworths, as the defendant making the Shirt kind of calculation of the risks of situations it had created and for which it was responsible, was entitled to say it would be unreasonable, beyond our ken, beyond an appropriate zone of potential conduct by possible plaintiffs, for us to attend to that a delivery driver would seek to remove an obstacle which we knew would be created.

Now, the second approach that the trial judge said was a system that should has been improved was a rather better way of attending to the irregular hours at which the council emptied the bin and left them in the obstructing position than was presently the case. There is no challenge to that which contains any detail or specific factual matter at all. There is simply the conclusion to which the Chief Justice has drawn attention this morning in Justice Williams’ reasons.

So far as the suggestion by my learned friend that it was really more obvious to the plaintiff than to Woolworths that one need only say that that is an argument that says, “Because you the plaintiff had complained to us in the past out of court about this matter, you cannot now complain in court” and, in our submission, that cannot be right.

GLEESON CJ: We will adjourn for a moment or two to consider the course we will take in this matter.

AT 11.09 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.12 AM:

GLEESON CJ: In this matter there will be a grant of special leave to appeal. We will adjourn for a short time to reconstitute.

AT 11.12 AM THE MATTER WAS CONCLUDED