Takacs v The Uniting Church in Australia Property Trust (NSW) [2008] HCATrans 384 (14 November 2008)

Last Updated: 19 November 2008

[2008] HCATrans 384

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S329 of 2008

B e t w e e n -

JOHN ERNEST TAKACS

Applicant

and

THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) T/AS NORTHAVEN RETIREMENT VILLAGE

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2008, AT 11.17 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR P.G. MAHONY, SC and MR R.E. QUICKENDEN, for the applicant. (instructed by CBD Law)

MR P.R. GARLING, SC: May it please the Court, I appear with my learned friends, MR R.G. GAMBI and MR G.E.S. NG, for the respondent. (instructed by HWL Ebsworth Lawyers)

GUMMOW J: Thank you. Yes, Mr Walker.

MR WALKER: Your Honours, there were two routes to success at trial for my client. If I may label them for convenience the common law and statutory route and immediately raise this problem at a special leave application with the statutory route, namely, the regulation has been repealed and what might be regarded as its replacement does not include wording which any longer raises the matters of textual analysis which separated the members of the Court of Appeal on that point. I thought I should draw that to attention immediately. Can I, therefore, concentrate on what I call the common law point.

GUMMOW J: You are concentrating, but not abandoning otherwise, is that right?

MR WALKER: For this reason. Your Honours will have seen that we invoke the justice of the particular case. These are very severe injuries from a very foreseeable risk. Indeed, one could be forgiven for thinking that against us the argument was so foreseeable that nothing should be done about it.

GUMMOW J: Justice Basten dealt only with the statutory - - -

MR WALKER: Only with the statutory ground. The verdict for us has been lost by a majority who approached the common law question, in our submission, in a way which does not accord with principle in two ways put generally that is transcending this case. The first is in relation to this combination of so-called obviousness and the Shirt calculus carried out impeccably, with respect, by the trial judge, no error being identified. That is the first point. The second is, of course, as a matter of intermediate appellate technique, in our submission, it was wrong for there to be an interference by the majority in the Court of Appeal with the trial judge’s outcome, particularly bearing in mind two matters of fact, namely, a characterisation of the respondent, to which I will come, and, second, an assertion unsubstantiated by evidence concerning the expense of a precautionary response, namely, the safety harness, which caused error.

Now, the third reason why, in our submission, this is a fit case for special leave catches up what Justice Gummow has asked me about not abandoning the statutory point which has lost its general continuing importance for the future and that is the importance of this case for the plaintiff. The errors of approach by the intermediate Court of Appeal, in our submission, make it appropriate that were there to be a grant of special leave, my client ought to be given the attempt to vindicate the approach which, in our submission, is purposive and textually sound taken by Justice Basten to the interpretation of the beneficial provisions which were in effect at the time.

About the statutory point I only wish to add this. One of the main points that would be argued were special leave granted would be to inquire, could it possibly be right, as the majority in the Court of Appeal held, that a man who at the request of the manager of a land owner, not a private householder, goes to measure up in order to assess for a quote the repainting protectively of a roof - - -

KIRBY J: But he was an independent contractor, was he not?

MR WALKER: Can I come back to that expression “independent contractor”?

KIRBY J: It sounds awfully like Sweeney v Boylan.

MR WALKER: Can I come back to that in a moment, your Honour? Can that be described as not carrying out construction work? In our submission, no. Can I come straight to the independent contractor point. Of course, if that expression is simply used to mean somebody who is not an employee, it will serve, but there was, of course, by definition no contract in question here. This was a man who had done work from time to time under contracts who was being asked back to see whether he was interested in another job.

KIRBY J: No, but if I can be brutal, the principle behind the statement of the law is if people are independent contractors, then you can normally expect that they will insure themselves against risks and that the law does not provide them the same sort of protection that you do to employees.

MR WALKER: But, your Honours, that has to cohere with what the common law of negligence says about the responsibility of occupiers. If it has to cohere with what the common law pronounced by this Court in, for example, Thompson v Woolworths or Stevens v Brodribb say about workplaces or premises onto which people are invited for particular purposes, we would add in this case “for the potential benefit of the defendant”. So, in our submission, it is not a case that if you do not have a master/servant relationship, the plaintiff is on his or her own. The common law, if it ever said that, has ceased to say so in this country for a very long time.

There must be coherence with the approach taken to the responsibility of occupiers of property, to the responsibility of what might once upon a time have been called invitors and certainly the responsibility of people who have supervision of a place in which other people are plying their trade.

GUMMOW J: Now, you have to overcome, have you not, or you would have us overcome the conclusions of Justice Hodgson at page 117?

MR WALKER: Yes. Did your Honour say 117?

GUMMOW J: Paragraphs 56 and 57.

MR WALKER: Yes. Before I come to that, may I draw to attention that in the course of his Honour dealing with the statutory matter, there is a comment at the foot of 113, paragraph 43 which may provide an answer to the reason why his Honour differed from the learned trial judge on what are essentially jury questions. Now, I stress, this was in the context of a statutory question, but, nonetheless, the prism perhaps supplied by the comment in paragraph 43, second sentence, is one which informed the view his Honour took on the common law question. There, his Honour says:

The trust was not relevantly in any different position from a householder engaging a contractor to do a particular piece of work on the householder’s property.

Well, in relation to the common law question, it manifestly was in a very different position. This was a landowner, a sufficiently elaborate and sophisticated and extensive in its property responsibilities to have a manager with responsibility for the maintenance who pursuant to his position, managerial position, invites my client onto the premises in order for the potential benefit of the defendant to assess the appropriateness and the pricing of certain work and invited onto a place which was by dint of its location an obvious source of danger, it not being the law that the so-called obviousness, namely, that if you are on a roof one might fall off, it not being the law that that either as a matter of social expectations or that which follows social expectations, namely, common law reasonableness, dispenses the person responsible for the invitation to go onto a roof from any response by way of precaution.

One cannot imagine safety legislation ever being informed by the approach that a whirling saw being an obvious source of danger need not be accompanied by precautions, et cetera. Now, your Honours, on page 115, paragraph 48, Justice Hodgson commences the reasoning that Justice Gummow has asked me to confront. There is a clear duty of care, in paragraph 48, arising from occupation and invitation and, in our submission, that is entirely on all fours with the way we put the case. Paragraph 48, in our submission, differs in nowise from the way the learned trial judge approached it.

So then one turned to the Shirt calculus, the question of breach, paragraph 49, where my learned friend’s argument is put. It is said there is nothing in the nature of an unusual danger or trap. One has to, of course, contrast that with what one found at trial conveniently set out by way of conclusions of the trial judge at page 50 in paragraph 149, a summary accepted in paragraph 115. I will not read it to your Honours, but you see there reference to the nature of the construction of the roof, the effect that had ergonomically on the capacity to walk or maintain stability, the relation of the low parapet and the high elevation from the ground, et cetera.

HEYDON J: Just pausing here. If this was an ordinary householder, you say these might be fair points?

MR WALKER: Yes.

HEYDON J: But because it is not an ordinary householder, they are not fair points?

MR WALKER: That is exactly right, yes, your Honour. Page 116, paragraph 51, Justice Hodgson, with respect, very plainly identifies the argument in this appeal by way of rehearing as one which did not involve any reliance on any “particular error in the reasoning of the primary judge”. Now that, of course, does not portend success for the respondent in an appeal, we accept that, because there could be overall such a glaring improbability or inappropriateness of the outcome that in the same way with discretionary judgments House v The King can produce appellate overturning. So one might have with the common law evaluate of assessment involved in what was reasonable. But there is no such conclusion that follows in Justice Hodgson’s reasoning and for those reasons, in my submission, notwithstanding the plenitude of an appeal by way of rehearing, there ought not, in our submission, to have been a departure from the way the trial judge answered the jury question.

There is nothing intuitively unreasonable about asking, in particular, in this kind of roof exercise where a person has to be involved, not only in travelling across this roof material, but also kneeling down and the like for the purpose of measuring, there is nothing inherently or intuitively unreasonable about what the learned trial judge proposed as obvious precautions. Your Honours, would be aware, without any specialised knowledge, of the straightforwardness of safety harnesses. Justice Hodgson deals with that, it being - - -

KIRBY J: So you are saying that when a person who is a specialised painter or builder goes to a client for the purpose of giving a quote, the client has to provide a safety harness?

MR WALKER: He is not just any client. This is the manager who knows about all of the building. It is not suggested there was any knowledge on the part of the building manager that my client had any particular expertise - - -

GUMMOW J: But what was special about the roof?

MR WALKER: It was high, it had a low parapet. There were no handholds, protections, fences. I am sorry, your Honour?

HEYDON J: All those circumstances were special?

MR WALKER: Well, your Honour, if one talks about an ordinary suburban bungalow, no they are what one would expect, but in a commercial building, in our submission, it is common to find precautions of that kind, precisely because of the workmen.

GUMMOW J: Is there evidence about that?

MR WALKER: No, your Honour. It is not to be forgotten, this is a roof where the occupier has to unlock a door, as the evidence showed, in order that there be ladder access to it. This is a commercial building, in effect, that is, it is not a private dwelling. Justice Hodgson, in paragraph 57 at the foot of page 117, dispensed with what the trial judge had found in relation to the reasonableness of what I will call by way of example the safety harness approach, that it would be a substantial operation, see line 45, not called for, having regard to the smallness of the risk.

Now, the smallness of the risk presumably has something to do with the duration of the time the man would be on the roof and the expectation that most people will not lose their balance most of the time. That has never, with respect, been an answer to inviting people to go into dangerous high places. It could hardly, for example, be a reason, if there had been an employee tasked to inspect the roof, let alone to paint the roof for days on end, it could hardly ever be a reason not to supply harnesses or the like.

In our submission, when one asks the basic question of reasonableness in relation to the risk, whose physical consequences are the same, whatever your status of employment, whose physical setting is the same, regardless of the status of your employment, namely, that amount of height, that kind of roof, that low parapet, those physical manipulations, kneeling and the like being required, no reason is supplied in the Court of Appeal approach for finding a sufficient error in the approach taken by the trial judge. It is for those reasons, though, of course, we do not seek the slightest alteration or revisiting by this Court of the principles governing the question of content or scope of duty and breach of duty in the law of negligence, nonetheless, in the visitorial jurisdiction this is an appropriate case for the grant of special leave.

It is to be recalled, to distinguish this from some of the other so-called independent contractor cases or skilled workmen cases, that there was no suggestion of knowledge or belief on the part of the building manager that my client was, as it were, an aerialist, a specialist in high dangerous places. In fact, he was not. Of course, the evidence against us can be put this way, namely, there was no evidence that he knew we were inexperienced, as in fact we were, but it has to be - - -

KIRBY J: He fell two storeys, did he not? It was two or three storeys?

MR WALKER: It is a three-storey height. He fell onto a first storey roof.

KIRBY J: Yes. But is it not inherent – I am sorry to go back to this – but Sweeney is very vivid in my mind and it did appear, looking at it from the point of view of the Court, to be an affirmation of the principle that ordinarily people who own their own business will be expected in matters of safety to look after themselves. I disagreed with that, but that was the holding of the Court and it is a relatively recent holding. It does not seem as though, if you apply that approach, that your client would have much chance of succeeding in disturbing the conclusion that Justice Hodgson said there was no breach, there was only a very small risk. So that is what seems to stand in the way of your argument on this point.

MR WALKER: Your Honour, Sweeney v Boylan, with respect, neither declares itself to be nor should be understood as, as it were, reversing the almost as recent Thompson v Woolworths and the older but still cogent, with respect, Stevens v Brodribb. They do cohere. One of the keys is, precisely as Justice Hodgson put it, on all fours with the trial judge. There is an occupier of property who invites somebody to do something which has inherent risk in it. That, in our submission, is rather different from saying, well, this is a man whose job it is to deal with electrical current or high places, et cetera, or sharp implements. May it please the Court.

GUMMOW J: You said Regulations 73 and 74 have been replaced. Where do we see the details of that?

MR WALKER: On page 129 of the book. Sorry, we do not find the text of the replacement, your Honour.

GUMMOW J: I see. So there was a repeal and there is a new set of regulations?

MR WALKER: Yes. What I cannot do, because it is not true, I cannot say that this is a text which, in ways which make this reasoning apposite, carries into the present.

GUMMOW J: Thank you. We do not need to hear you, Mr Garling.

In the New South Wales Court of Appeal Justice Basten dissented from the decision of the majority on the basis the interpretation given to regulation 73 and 74 of the Construction Safety Regulation 1950 (NSW). However, as his Honour pointed out, those regulations have been repealed and their replacement, it is agreed, does not reflect the terms of the previous regulations. Properly, the applicant conceded that this circumstance deprived the point respecting regulations 73 and 74 of continuing public or legal importance. Nevertheless, the point was not abandoned.

The heart of the applicant’s argument today was to the effect that the majority of the Court of Appeal, Justices Hodgson and Cole, had erred in disturbing the judgment of the primary judge, Justice Rothman, that the respondent was liable to the applicant in negligence although with a 20 per cent discount for contributory negligence. The applicant criticises the majority’s finding that there was no breach of the common law duty of care and that the risk of falling, as the applicant did, was “very small”.

We are not convinced that the applicant has demonstrated reasonable prospects of succeeding on these matters. Significantly, Justice Basten, who otherwise dissented, did not embrace this branch of the argument. Special therefore is refused with costs.

AT 11.37 AM THE MATTER WAS CONCLUDED