Downview Pty Ltd v Fox & Ors; Leighton Contractors Pty Ltd v Fox & Ors [2008] HCATrans 386 (14 November 2008)

Last Updated: 21 November 2008

[2008] HCATrans 386

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S160 of 2008

B e t w e e n -

DOWNVIEW PTY LTD

Applicant

and

BRIAN ALLAN FOX

First Respondent

LEIGHTON CONTRACTORS PTY LTD

Second Respondent

WARREN STEWART PTY LTD

Third Respondent

Office of the Registry
Sydney No S183 of 2008

B e t w e e n -

LEIGHTON CONTRACTORS PTY LIMITED

Applicant

and

BRIAN ALLAN FOX

First Respondent

DOWNVIEW PTY LIMITED

Second Respondent

WARREN STEWART PTY LIMITED

Third Respondent

Applications for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2008, AT 11.51 AM

Copyright in the High Court of Australia

__________________

MR J.E. MACONACHIE, QC: May it please the Court, in the first of those applications I appear for the applicant, Downview Proprietary Limited, who is also the second respondent in the second application brought by Leighton Contractors, and I appear with MR R.G. GAMBI. (instructed by Wotton & Kearney)

MR M.J. CRANITCH, SC: May it please the Court, I appear for the first respondent in both of those applications with my learned friend, MR R.C. TONNER. (instructed by Walkom Lawyers)

MR P.R. GARLING, SC: May it please the Court, I appear for Leighton Contractors, which is the second respondent in the first application, and the applicant in the second application, with my learned friends, MR W.S. REYNOLDS and MR G.E.S. NG. (instructed by Moray & Agnew)

GUMMOW J: There is no appearance for Warren Stewart Proprietary Limited which is the third respondent in each application?

MR GARLING: That is so, your Honour.

GUMMOW J: There is an extension of time required, is there not?

MR GARLING: Yes, there is, there is an extension. We make an application, your Honour. I think we were one or two days out of time.

MR CRANITCH: We are in the same position, your Honour.

GUMMOW J: Is that opposed?

MR MACONACHIE: No, your Honour.

GUMMOW J: You have that extension.

MR GARLING: If the Court pleases.

MR MACONACHIE: Your Honours, could I hand up to your Honours a two-page document which I hope synthesises the case that we hope to make and I will address the points that are there raised. Your Honours, this application is brought on the basis of - - -

GUMMOW J: Just a minute, Mr Maconachie, we will stop the clock and just read this to ourselves for a few minutes.

MR MACONACHIE: If your Honours please.

GUMMOW J: Yes, Mr Maconachie.

MR MACONACHIE: Your Honour, the application is put on both bases, that there are issues of general importance and that there is a miscarriage of justice in a particular case. Your Honours might recall that the factual circumstances are reasonably straightforward. There was a pyramidal, as it were, arrangement of contractors from Leighton through Downview to an organisation, the identification of which was not all that straightforward. Mr Fox, who was the plaintiff, was about four, perhaps five, steps away from Leighton and its subcontractor, Downview.

The cause of the harm was Mr Fox being struck by a whiplashing concrete delivery pipe and that happened because it was found both in the court at first instance and in the Court of Appeal for two reasons, essentially. One was that the pipe was not tied down and it should have been tied down, and the second essentially was that there should have been an explanation to these experienced men, and they were found both at first instance and in the Court of Appeal to be experienced men, that they should do that which was found to be the relevant breach.

GUMMOW J: What is the business or commercial connection in this operation between Downview and Leighton?

MR MACONACHIE: There was a contract between them pursuant to which Downview was to provide concrete formwork and the like. Part of that operation, part of that contract, or the discharge of the obligations under that contract, were subcontracted to others.

GUMMOW J: Where did Warren Stewart Pty Limited fit in?

MR MACONACHIE: They were two removed from Downview on one view of it. A concrete truck was to have been provided by someone, by Toro Constructions, and a somewhat grey figure in these proceedings. That was unavailable and so another one was provided through what seems to have been essentially a labour hire company, and Mr Fox came along with that truck, he being a contractor to the provider of the truck who was a contractor to the person who could not provide the first truck who was a contractor to Downview. There is no doubt the relationship of contractor and subcontractor all the way down the line was found at first instance in what we submit to be a careful and well-reasoned judgment, and was also accepted in the Court of Appeal.

We give your Honours a reference, in paragraphs 1 and 2 of the document that I just handed up, to the point at which it seems to us that Justice Basten decided both the duty and the breach point against us. The first point of substance that we wish to make is that those formulations of duty and breach are inconsistent with Sweeney v Boylan, which your Honours have just had your minds applied to. Can I take your Honours to what was said in Sweeney v Boylan. There is a second volume which has been provided to your Honours, on page 15 of which you will find Sweeney v Boylan. The relevant paragraphs of the judgment of the Court in which your Honours both participated are to be found at page 18 paragraph [12], page 22 paragraph [31] and page 23 paragraph [33]. But one does not really need to go past the fundamental proposition that was established in Quarman v Burnett so long ago and upon which this case, Sweeney, stood.

A second proposition that we wish to make is that the approach taken by Justice Basten conflates the contractual obligations of Downview to Leighton for the benefit of Leighton with the content of the duty of care, if any, owed to Fox, the plaintiff. It gives a benefit to a contract of a contract to someone who is not a party. We do not for a moment suggest that there cannot be a circumstance in which a contract between A and B can inform the duty of care to C, but the manner of approach by Justice Basten in this case insists that the failure on the part of Downview to do that which it agreed to do with Leighton amounts to both the content of the duty to Fox and a breach of it. If that is to be articulated as a principle of law in this country, it is not for the Court of Appeal to do it, but for this Court.

We submit that the Court of Appeal’s decision imposes on Downview a standard of care that is more onerous than an employer owes to an employee. Your Honours will be familiar with the principle in O’Connor’s Case, but in Glass McHugh and Douglas it is dealt with at page 45. We have attached that at the back of your Honours’ two page synthesis.

We submit that this is plainly a simple and uncomplicated operation within a system of work because all that was being done was that a concrete hose, if you like, four, five, six-inch hose, from a concrete truck to a bin was being cleaned out and two things were done that ought not to have been done. The first was it was not tied down, a simple straightforward exercise that plainly enough everybody knew should happen, a simple and uncomplicated step in the operation.

The second was that instead of using something called a sponge, some sort of proprietary device that is designed specifically to clean out the pipe, there was used an ad hoc device made up of a paper bag and some dacron rubbish, and that was used on the second occasion to clean out the pipe and that is what caused the problem. It apparently got stuck, more air pressure was introduced, a whiplash effect occurred when the stoppage was cleared, and the plaintiff was struck when the whiplash effect was thus produced. Again, simple, straightforward, uncomplicated operation in a - - -

GUMMOW J: If I could just interrupts, what was the basis of the recovery against Warren Stewart Pty Limited?

MR MACONACHIE: I cannot immediately recall, I must say, your Honour. Mr Stewart was on the site. He was directing the plaintiff in the operation that they were engaged in. It was on that basis that he was found to have a liability to Mr Fox.

GUMMOW J: The criticism of your client was that it had not given proper induction training; that seems to be at page 101?

MR MACONACHIE: Well, not even that, your Honour. It was said that Leightons provided some kind of induction training which, on one view of it, would extend to some elements of how the concreting work might be done, and it was said, Justice Basten, because Downview had a contract with Leightons it was therefore obliged to ensure that – and the words “ensure that” is used throughout the judgment – ensure that induction occurred, and that seems to have been the basis upon which Justice Basten and others found that we were liable to the plaintiff. But it ignores, as we have set out in this short document, the nature of the duty, that which gives rise to the duty, the content of the duty, the breach and the causative impact if there had been an induction.

HEYDON J: Do you accept there was a duty?

MR MACONACHIE: I am sorry?

HEYDON J: Do you accept that Downview owed a duty to Mr Fox?

MR MACONACHIE: Absolutely not. The relationship between them was not so close that an obligation arose. It would be inconsistent with Sweeney v Boylan. It would be inconsistent with Brodribb. It is not an occupational relationship.

HEYDON J: Sweeney v Boylan is a vicarious liability case.

MR MACONACHIE: Yes, it is, your Honour.

HEYDON J: Was a case put below that a direct duty was owed independently of any vicarious relationship?

MR MACONACHIE: It seems to have been, your Honour, it seems to have been. But if it were, it would be an advance in the law. It has not been recognised that in circumstances of this kind where there is, so far as Downview was concerned, no duty to co-ordinate, because there is no interaction between - - -

HEYDON J: Mr Still was with Downview, was he not?

MR MACONACHIE: No, Mr Still was an independent contractor who arranged for Mr Stewart and Mr Fox to come along, he having been somewhat associated with this.....Toro Constructions, which either did or did not exist; there was some confusion about its - - -

HEYDON J: With whom did Mr Still have the contract that made him an independent contractor?

MR MACONACHIE: Downview, more probably than not.

HEYDON J: Mr Still was in charge of these operations in the basement of the building?

MR MACONACHIE: Well, in effect, he was because he had, by one means or another, undertaken the task of delivering the concrete. He was a skilled man, he was an experienced man, 19 years or so in the business. There is no suggestion that he was a newcomer or that we knew he was a newcomer. Both Mr Stewart and Mr Fox were men with 11 or 12 years experience.

HEYDON J: Mr Fox is described as a semi-skilled labourer.

MR MACONACHIE: Yes, there is no doubt about that, he did not have a university degree in engineering but he did not need it. He was an experienced man of 11 years experience as a lineman - - -

HEYDON J: Was he experienced in the cleaning out of concrete slurry pipes?

MR MACONACHIE: Yes, there is a finding to that effect. His inexperience was said to be that he had only worked on buildings two storeys high, but that had nothing to do with the mechanism by which you clean out a pipe after concrete has been poured through it, an, accordingly, we say, uncomplicated operation. An employee would have difficulty in establishing that there was a relevant duty and a relevant breach, a fortiori someone who has contracted to produce a result; not to us, but to an intermediary.

HEYDON J: Maybe not an uncomplicated operation, but there were three men there, each of whom were with a different organisation, one of whom - - -

MR MACONACHIE: That is because Mr Still and his companions, who were Toro or associates of it, could not provide their truck, so they contracted for the provision of another truck with a driver and an offsider. It was in malt or in meal Mr Still’s truck and, accordingly, something that Mr Still and those whom he had engaged were required to do something quite straightforward that did not require any co-ordination from somebody up the line.

GUMMOW J: It must have required quite a bit of detective work on the part of the plaintiff to work out the elements on this chain as to who was to be sued for what.

MR MACONACHIE: That is a point that has not been raised before.

GUMMOW J: The actual specifics of the contractual arrangements are rather obscure.

MR MACONACHIE: They are.

GUMMOW J: Were they proved at a documentary level?

MR MACONACHIE: Not as between Downview and those beneath it, but there was as between Downview and the people, Leightons, above it. But the operation was a standalone, simple operation undertaken by Mr Still part of which was subcontracted to Mr Stewart and Mr Fox.

HEYDON J: Could I read out what I think is a famous sentence from Stevens v Brodribb, Mr Justice Mason, and you just say what you submit does not apply in this case?

If an entrepreneur engages independent contractors to do work which might as readily be done by employees –

That is so here, is it not?

MR MACONACHIE: Yes.

HEYDON J:

in circumstances where there is a risk to them of injury arising from the nature of the work –

that is so here?

MR MACONACHIE: Subject to one matter that I will address when your Honour is finished.

HEYDON J:

and where there is a need for him –

that is the entrepreneur –

to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work.

MR MACONACHIE: Well, there is no co-ordination obligation or need here, your Honour, because - - -

HEYDON J: Even though the three people are from different organisations?

MR MACONACHIE: Well, that is Mr Still’s obligation. He is the entrepreneurial figure with respect to the relevant work. Brodribb was a case in which the sniggers and the truck drivers and the like, their operations had to interface, as it were, whereas in this case the operation was a self-contained singularly circumscribed simple operation. Downview obviously, we would submit, undertook with Mr Still and his operatives to provide a truck and concrete so that they did not have to do so themselves.

It might be something that could as readily be done by Downview if it determined that it was in its commercial interests to buy and maintain a truck. It chose not to. It chose to take the simple expedient, which is commonly done, of having plant and machinery together with those to operate it provided by way of subcontract and the entrepreneurial element therefore was that of the person providing the truck and the concrete, not Downview.

Point 5(ii), your Honour, can I make this point. It was discussed to some extent in the last matter, which Mr Walker was in, and that is this. The Occupational Health and Safety Act and the obligations of Leighton’s contract have been, as it were, fed into the obligation said to be owed by Downview to Mr Fox, but the Occupational Health and Safety Act is radically different from Regulation 73, 74 provisions of the Construction Safety Regulations, which Justice Gummow referred to in the last case. They were prescriptive; 1.8 metres, loads, that kind of thing. You had to provide scaffolding if somebody was liable to fall 1.8 metres.

The Occupational Health and Safety Act and Occupational Health and Safety Regulations dictate outcomes; you have to achieve an outcome. It is entirely different from cases like Abela v Giew where an attempt was made to say the motor traffic regulations require you to stop at a traffic light. If you do not, there is a statutory duty which gives rise to a common law duty. No, they said, but the prescriptive nature of the regulation can inform the duty of care. Not here, because it is outcome directed, not prescriptive. That led to the – the references are given – you must ensure, you were required to ensure construct that permeates Justice Basten’s reasons.

Point 6, I will not read that, your Honour, it is plain enough in itself. The causation point is of significance. The points that we want to make are set out in 1, 2 and 3, but, importantly, in 8 - - -

HEYDON J: Did you not say Justice Basten assumes without deciding, but did he not actually decide that if some induction training had been given, it would have been listened to and acted on?

MR MACONACHIE: No, he did not, in our respectful submission. I stand to be corrected.

HEYDON J: So do I.

MR MACONACHIE: There was nothing about what it was relevant to those breaches which were found to have given rise to liability in Downview. There was nothing in the evidence to say that they would have been directed, dealt with, it was just assumed.

HEYDON J: But did not Justice Basten make findings of the type I was talking about against Leighton?

MR MACONACHIE: I think he did, yes.

HEYDON J: If it is true against Leighton, would it not be true if the same types of warnings had been given by Downview?

MR MACONACHIE: Only if Downview were in a situation like Leighton where it had, as it were, overall control.

HEYDON J: But here we are just talking about causation.

MR MACONACHIE: Yes.

HEYDON J: If something had been said to someone would they have listened to it, understood it, and acted on it?

MR MACONACHIE: Yes, I think that might be so, your Honour, I would have to concede that. But, in any event - - -

GUMMOW J: Wait a minute, just look at paragraph 68 at about line 28, page 101:

an opportunity to ensure that safe practices were adopted on the site was lost as a direct result of Downview’s ineffective administration –

Does it go any higher than that?

MR MACONACHIE: No, we submit not. I could not find anything that takes it any higher than that, your Honours. We make the point in 8 by reference to what is at appeal book 101, line 56, that essentially two points
arise, “different practices”, whatever they might be, “might have been adopted in relation to securing the end of the concrete line”. There was nothing in the evidence to suggest what mechanism would have been employed, should have been employed, reference to chains and the like, but nothing to the effect that the kinds of forces that were caused by this ad hoc sponge would have made any difference to the outcome.

Section 5E , your Honour, of the Civil Liability Act imposes the obligation to prove causative elements, factual causative elements, upon the plaintiff. Justice Basten does not do that, and, most importantly, we submit that when you read the paragraph at 101, point 56, it is plain that Justice Basten assumes that the breach of itself establishes causation. That is not something that is appropriate for the Court of Appeal to deal with, it is something for this Court if it is to become the law in this State. They are our submissions.

GUMMOW J: Thank you, Mr Maconachie. Yes, Mr Garling.

MR GARLING: If your Honours please, may I, without enhancing them, adopt what my learned friend has said with respect to the principles of contractual relationship. Can I take your Honours to page 95, paragraph 54 of the judgment? That is where his Honour Justice Basten says:

the existence of a duty on the part of Leighton should be upheld on the sole basis articulated above. If a duty existed, it was clearly breached –

May I then take your Honours back from that commencing point to this fundamental error. I will your Honours to the paragraphs. His Honour has said that Leightons, which on all hands is the upper level principal contractor, was in breach of its common law duty to Mr Fox because it did not give him induction training in respect of what was required by the concrete pumping code.

Now, that is what his Honour said because he said that was the code referred to and the Occupational Health and Safety Regulations which imposes that obligation on the principal contractor. His Honour made a fundamental error because he misinterpreted the regulation and, in our respectful submission, there is, according to the regulation, no such obligation on Leighton. The general law does not impose it by precedent and there was no expert evidence of a kind which described what industry practice may have been to enable him to come to that conclusion.

HEYDON J: What was the wrong code doing in evidence then?

MR GARLING: I have no idea, your Honour.

HEYDON J: It is exhibit J, is it not?

MR GARLING: The concrete code is exhibit J, but, of course, in a multi-party case, your Honour - - -

HEYDON J: Was this point drawn to Justice Basten’s attention?

MR GARLING: Well, I cannot answer that question, your Honour, I did not appear at the appeal.

HEYDON J: It is hard to criticise a judge for making a mistake when the truth, as it were, was not set before him.

MR GARLING: It is not that difficult, your Honour, with respect. Your Honours will have an additional bundle. There are two. May I just ask your Honours to go to the one that has “Moray & Agnew” on the left-hand side at the bottom because they are not otherwise identified. Would your Honours go to page 34. These are the regulations to which his Honour Justice Basten had regard. Your Honours will see in section 212:

In this part:

Code of Practice means the document prepared by WorkCover entitled “Code of Practice – Occupational Health and Safety Induction Training for Construction Work 1998” as in force -

That might, for present purposes, be called conveniently a general code. Your Honours, the clause to which his Honour referred is on page 35, the next page, 213:

Principal contractors to ensure that OHS induction training undertaken.

There is an obligation in paragraph (1), then in paragraph (1A) “The only evidence”, et cetera, (2):

A principal contractor for a construction project must:

(a) identify any change in the construction site . . .

ensure that each person carrying out construction work at the construction site undergoes such OHS induction training referred to in clause 216(1)(b) or (c) as is necessary –

One then goes to 216 at page 37 and one sees:

Meaning of “OHS induction training” . . .

(a) general health and safety induction training that complies with clause 217,

(b) work activity based health and safety induction training that complies with clause 218 . . .

(c) site specific health and safety induction training that complies with clause 219 –

If your Honours go to the next three pages, those three regulations referred to commencing in “Code of Practice”, that is the code that is referred to, as I took the Court to, on the first of those regulations. Now, his Honour takes the reference to “code” to be the very subsidiary concrete pumping code and at pages 90 and 91, if I may take the Court back to that, your Honours will see that at paragraph 47 at the bottom of page 90 his Honour says:

The continuing obligations of a principal contractor . . . are reflected in the Occupational Health and Safety Regulation and in the general law. Thus it has long been accepted that a principal may be liable –

and so on. Your Honours need to go back one further page, page 85, paragraphs 33 and 34. At paragraph 33 his Honour says:

The basis upon which Leighton may have been liable was variously formulated in the statement of claim as a failure to ensure (by training and supervision) that safe work practices were adopted.

I am not taking a point about pleading, your Honours, but he says - - -

GUMMOW J: I just wonder about this. When it says “in the statement of claim as a failure to ensure (by training and supervision) that safe work practices were adopted”, was there any particularisation of the relevant safe practice at the pleading level? We do not have the pleading.

MR GARLING: I do not have it, your Honour. I really cannot answer that.

GUMMOW J: I just wonder how this got into the area of debate.

HEYDON J: Justice Gaudron always used to say you must bring your pleadings to Court.

GUMMOW J: Yes, that is right.

MR GARLING: I will ask my junior, your Honour.

GUMMOW J: Yes.

MR GARLING: But, your Honours, can I just articulate the point.

GUMMOW J: Just a minute, Mr Garling.

MR GARLING: I am sorry, your Honours.

HEYDON J: Was Justice Basten the recipient of a submission along the lines of the reasoning he eventually articulated as his reasons for judgment?

MR GARLING: No, not from the appellant.

HEYDON J: Are you submitting that this is some independent piece of reasoning by the judge that was not laid before the parties?

MR GARLING: Yes.

HEYDON J: On what basis can you submit that? You have to demonstrate it.

MR GARLING: Firstly, because at page 60 of the joint application book your Honours will find no ground of appeal from Mr Fox which raises the matter specifically and, secondly, other than - - -

HEYDON J: Would it be there though?

MR GARLING: It was the plaintiff appealing against a failure to have Leightons found liable.

HEYDON J: They are very general grounds.

MR GARLING: Yes, so one would then ordinarily look to argument and submissions. I cannot put those before your Honours. I can only report, without personal knowledge, what I am informed by those that appeared at the appeal. I am always reluctant to do that, your Honours, because memories are vague and memories vary, but it is my understanding that this was an excursion uninformed by assistance in oral submission.

HEYDON J: Before we got onto that you were about to say something, just after you spoke to your junior.

MR GARLING: I was about to ask your Honours to look at paragraphs 33 and 34 because that is where the path diverges. At paragraph 33 at page 85 his Honour says, “Thus reg 213 relevantly provided”. We accept that that is correct. And then he says in paragraph 34:

A similar obligation was imposed on each “self-employed person”: reg 215. Further, such training was required to “cover the relevant health and safety topics set out in the Code of Practice”: reg 217(a).

I have taken the Court to that, and we accept that. He then says:

The relevant code of practice for present purposes was that for “pumping concrete” which included cl 3.18 which read:

“3.18 Line cleaning safety –

Your Honours, I took the Court to the regulation. Clearly that is erroneous. The code of practice certified that the relevant capitals is not the concrete pumping code. Why am I concentrating on that, your Honours?

HEYDON J: Because you have no other arguable point perhaps.

MR GARLING: I am sorry?

HEYDON J: Because you have no other arguable point.

MR GARLING: Your Honour is harsh and unkind and I adopt Mr Maconachie’s arguable points.

HEYDON J: Why are you concentrating on this? You were about to answer that question.

MR GARLING: Yes, for this reason, your Honour. It informs the entirety of the content of the duty that he lays at the feet of Leighton and finds he has breached.

HEYDON J: You say that material in 3.18 should have come from the lips of an exert witness?

MR GARLING: If it is part of the industry practice for a principal contractor, remembering I am not a concreter, then it had to come from either industry practice, the lips of a witness or if it came from the regulation, as his Honour found, he had to interpret the regulations correctly and they gave no support for that proposition. And may I add, your Honours, there is no statement in the general law that his Honour refers to, case X or Y, which says, here is the well-known clear obligation.

I concentrate on that for this reason, your Honours. I accept that, as with many of these applications, this is demonstration of an obligation by reference to particular facts on a building site. The difficulty is the way in which his Honour has expressed his conclusions, to which I will take the Court, is a classic example of imposing an obligation by reference to the law of negligence which the industry does not yet embrace, or at least on the evidence does not embrace, and which transfers to every large complex building site. So it is a decision which does have tremendous consequential run-on effects for large building projects, hence its importance. Your Honours, that leads me to say I need to take your Honours to - - -

HEYDON J: We do have to be confident, do we not – I mean, exhibit J came into evidence without any party objecting.

MR GARLING: Yes, your Honour, but that is a - - -

HEYDON J: No party imposed any limitation on it and said, “It only applies to the others, not to me”. So it is relevant; it is accepted to be relevant.

MR GARLING: Yes, and it is tendered and it is clearly relevant to, at least on any view, Warren Stewart Pty Limited – and I will not say Downview because it might get Mr Maconachie excited – but it is clearly relevant to the issues of proper practice at the level of specific behaviour when pumping concrete; it is relevant. The nicety of saying, “It may be relevant but it is not relevant to me” is often not the most looming point of importance in the District Court trial process, your Honours. So, your Honour, I am really submitting I think your Honour ought not place too much emphasis on the fact that it was an exhibit. It was clearly relevant to the issues that were joined in the case generally. All of the evidence was being taken together. It may not have been directly relevant against one party or another, but your Honour ought not leap from that to the conclusion that it assumed a significance of a kind by reason of its tender that related to Leightons.

Your Honours, may I take the Court then to the paragraph at page 95, subsequent to that to which I took the Court before. His Honour says at paragraph 56:

The likelihood that cleaning out operations –

when speaking of the content of induction –

would have been addressed should be accepted.

So he is only talking of one set of induction training, that is, the one done by Leightons –

One cannot be sure that the training would have referred expressly to the requirement in the Code of Practice to attach the discharge end of the pipeline to catch the cleaning device –

Pausing there, your Honour, that is in fact a reversal of the code which says you have got to attach a catching device to the discharge end of the pipe –

but the concrete pumping exercise was a relatively simple one, with a limited number of dangers.

I think that is a point that my learned friend, Mr Maconachie, embraces –

Induction training which did not cover that aspect of the work would not have been proper induction training.

That is, in our respectful submission, the core finding of the nature and content of the obligation. That is a classic case, if I may say, with respect, that calls up those prescient remarks of Sir Garfield Barwick in Maloney v Commissioner for Railways that the fertile but unqualified imagination of counsel – I would add, parenthetically, or Court of Appeal judge – is no substitute for evidence. His Honour then goes on to say:

The only witness who went through induction training and who might have been able to give evidence in respect of the content of the training was Mr Still. He was asked no questions in this regard and, in one sense, his answers would not have mattered.

GUMMOW J: Yes, Mr Garling, we will call on your opponent.

MR GARLING: If your Honours please.

GUMMOW J: Mr Cranitch.

MR CRANITCH: Thank you, your Honours. Your Honours, the matter was actually pleaded in its terms and that is, the code of conduct was pleaded in the statement of claim in the original hearing, the code of conduct was pleaded in the original statement of claim. No objection was taken to it below and it was accepted below that this was the relevant code of conduct. If that be an error, the - - -

HEYDON J: Just one moment. And 3.18 was referred to?

MR CRANITCH: Yes, your Honour, it was referred to expressly in paragraph 7(a) of the statement of claim. Your Honour does not have it regrettably.

GUMMOW J: You had better show that to Mr Garling before he has a seizure.

MR CRANITCH: My learned junior had the appeal books from the court below.

HEYDON J: That is another Justice Gaudron maxim, always bring your appeal books from the court below.

MR CRANITCH: Yes. My learned junior obviously took that on board, your Honour.

MR GARLING: Your Honours, I would be entirely happy if the Court was provided with a copy of that page. It says this in respect of particulars of negligence against my client:

(b) Failing to ensure that the Plaintiff . . . had undergone OHS induction training at the site before commencing work in accordance with the Occupational Health and Safety Regulation 2001 . . .

(h) Breaching the Occupational Health and Safety Regulation 2001 in not providing a safe place of work on the construction site . . .

(k) Failing to ensure that the Code of Practice for pumping concrete (especially clause 3.18) was being observed during the cleaning of the concrete pipeline.

That provides no basis for my learned friend’s submission. But, of course, it provides a very good basis for the admission of exhibit J, and upon that point the plaintiff failed at the Court of Appeal.

MR CRANITCH: A distinction without a difference, in our submission, your Honours.

HEYDON J: Yes.

GUMMOW J: Yes, go on.

MR CRANITCH: Thank you. Even if we are wrong in that, the sections of the Occupational Health and Safety Regulations to which you have been directed would incorporate within it this code of conduct in any event, because it refers particularly, for example, at page 37 of the Moray & Agnew book, if I might put it that way, to:

(b) work activity based health and safety induction training that complies with clause 218 and relates to the particular type of construction work to be carried out –

We would say, and not only we, but his Honour Justice Basten was entitled to assume that that would have included the concreting code of conduct. With respect, it is our submission that this is a matter which went off on its own peculiar facts. It does not raise a matter of importance across Australia for a number of reasons and they rely upon what in fact was decided by Justice Basten and adopted by his fellow judges in the court below. At page 89 of the joint appeal book his Honour adopted that the case against Leighton was a failure to ensure safe working practices were adopted.

At page 91 he then went on to discuss how a principal might be liable for an independent contractor and it cannot be said that he misquoted any of the relevant principles involved. Then he went on to discuss what in fact the contract imposed upon Leighton at paragraph 48 on page 91. He said that it imposed obligations on Leighton which reflected the general duty of care to persons coming on the site. Now, there has been much emphasis in submissions made by my learned friends that this was a simple operation conducted, as it were, in a one-off manner.

This was a simple operation, of course, but it was conducted on a major building site with multiplicities of trades in and about the area and in the near vicinity by people whose training in high-rise operations of pumping – and there seems to be no controversy about that – was non-existent. They were used to two-storey buildings and pumping out in a different manner. They were not, as it were, a skilled contractor. Justice Basten went on, at paragraph 49, to say that Leightons in fact took on a supervisory role and he gave concrete examples of that; for example, the gatekeeper, they had a foreman, they had insisted on green cards.

The importance of all of those is this, that if they had the induction training which, his Honour fairly found, we say, would have incorporated the code of conduct, they would have had a green card. The gatekeeper should have stopped them if they came onto the site without such a green card. He went on to say the relevant omission was to ensure induction training, whilst not exonerating Downview from their obligations, and it was consequent upon that that he found the trial judge should have found a duty of charge to Mr Fox and by allowing work without induction training he had breached that duty. One might think that there was nothing much wrong with what his Honour says in respect of that and it certainly does not - - -

GUMMOW J: Where does he deal with causation?

MR CRANITCH: Your Honour, the problem was the trial judge did not deal with causation and his Honour had to deal with causation at page 95. He said, at paragraph 55:

In terms of causation, two questions arise: the first is whether it was more probable than not that had Mr Stewart (or the appellant) undergone induction training, this matter would have been addressed. Secondly, there is a question as to whether, had it been addressed, Mr Stewart (or the appellant) would, on the balance of probabilities, have behaved differently.

Then he goes on to the passage that Mr Garling took you to, and that is:

The likelihood that cleaning out operations would have been addressed should be accepted.

He, in fact, did find in respect of causation – and it is a necessary consequence of his Honour’s subsequent findings – that that must be the case. The question that he addressed to himself was whether it was fairly open to infer that had this training been implemented, then this accident would have been avoided. It is not rocket science, your Honours. It is not just a little hose. It is a steel pipe which, on the concrete code, is required to be adequately secured at the discharge end and there is an obligation to ensure that takes place.

The consequences are significant in that, as it happened to the plaintiff, and he was some considerable way off – or rather should I say the worker – could have happened to any one of a number of trades equally on site. So it is not, as my learned friends say, an operation which is simply confined to one simple issue. It is an operation which has ramifications for general site safety and gives rise to what Mr Maconachie fairly conceded, the possibility that one can look at the contract and say, how does that inform the duties of the various parties onsite? In this case, of course, Leightons and Downview.

In respect of Downview’s liability, at page 97 where he commences to deal with that – relevantly he says at page 99 that the same principles apply to Downview’s liability for these acts in relation to the contract as did Leightons. He was hindered, of course, by the fact that, absent evidence called by Downview, whether it could be accepted that Downview did not tell Cook or Still about Downview’s contractual obligations to see they were observed. Essentially, he said, they abandoned their contractual obligations and because those contractual obligations had ramifications of safety across the board, they abandoned their duty to people in the position of the worker.

Your Honours, dealing specifically with Mr Maconachie’s matters that he raised, the formulations of duty and breach, we say, when one reads in particular the context of the citations which he gives in his further written submissions, are not inconsistent with the law in Sweeney v Boylan Nominees were we to have to address that in any event. Rather, what he is saying is that the duty of care which is imposed is informed by the contractual obligations of the parties in a relevant way. Both of them – that is, both Downview and Leightons in their different guises – had an obligation to provide what was, in effect, a safe operating system. Contrary to what was said in O’Connor’s Case, to which reference was made, this really was a system case. This was a case which was more consistent with the sort of case that was referred to in Todd v Juleffs, which is also on the page annexed to my learned friend’s written submissions.

The suggestion that this was a simple, uncomplicated operation within the system of work I have already addressed for your Honours. My learned friend, as I hear what he says, does not dispute that the contractual obligations can inform a duty and we say his Honour in his approach adopted the view that the contractual obligations did inform the duty in this case and they were breached. There is no suggestion, in our submission, that there was a reversal of onus of proof and a proper examination of the passages to which my learned friend refers takes that matter no further.

In terms of the final matters, and that is the question of causation, his Honour was indeed hampered by the fact that the trial judge did not get to that, but, as I said, it is not rocket science. If this is not attached at the end, then it is a fairly elementary issue on the question of causation as to whether or not it is more likely than not that this is going to fly off and hit somebody. Its failure to conduct a very simple operation is not something we say, contrary to that which was put by Mr Garling, which requires expert evidence to elucidate it and enunciate it.

Indeed, as my learned junior points out, at page 23 of the joint appeal book the judge at first instance did find, in fact, at paragraph 40, that the cause of the accident was the failure to secure the pipe. She did not, in fact, go into it in the detail that his Honour might have expected, but, in fact, there was a positive finding in that regard and that really did not seem to have been disputed on appeal as an issue.

HEYDON J: I think the causation disputed on appeal was ought they have responded to the instruction? What would have been the response to the instruction?

MR CRANITCH: Would there have been a response?

HEYDON J: Yes.

MR CRANITCH: Yes, your Honour, and his Honour dealt with it by saying it was an inference that was properly open and should have been adopted because, had this code of conduct been drawn to their attention and had they got their green card on the basis that they had and knew the code of conduct – the evidence was they did not know the code of conduct, the plaintiff certainly did not – and the way in which it was conducted, would suggest that really nobody, even though Mr Still was apparently inducted, had turned their mind to the code of conduct at that point, although his Honour said that is not necessarily relevant to the way in which this operation would be conducted.

So, your Honours, there is nothing in those factual circumstances, we say, which requires the grant of special leave or brings it within the purview of this Court. The case has been decided on its own particular set of facts. There is no matter of general importance and it really does not seek to take the law any further outside the established authorities, despite the contention of my learned friends. Those are my submissions, your Honours.

GUMMOW J: Thank you. We will hear the replies at 2.00 pm. We will now adjourn until 2.00 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GUMMOW J: Mr Maconachie.

MR MACONACHIE: There are four things I want to deal with, your Honour. The first of them, briefly, is the question of the code of conduct. Mr Garling tells me he is going to deal with that and so that you do not have to listen to it twice, I will not, but I rely on what he says. Secondly, my learned friend to my right spoke of there being a multiplicity of trades in the vicinity. There was, as I have already said, no relevant interface. They were not involved in the relevant work. Could I, in that context, refer your Honours to what was said by Justices Wilson and Dawson in Brodribb [1986] HCA 1; 160 CLR 16. I want to take you to page 45 where they said this:

There is no reason why those same concepts should not provide a basis upon which it might be found that Brodribb was under a duty of care towards Stevens and we are prepared to assume that it was under such a duty of care, although it seems to us that the extent of the duty would have to take account of the independent functions of the contractors and be something less than that owed by an employer to his employees. To equate the duty with that owed by an employer to his employees would be to give no weight to the very circumstance which differentiates the contractors from employees.

They then go on to say they did not have to deal with the point, but it puts into context, we would say, the passage from the Chief Justice’s reasons for judgment which Justice Heydon referred to before lunch. Causation, your Honours, and my learned friend said her Honour did not deal with it, she did. Can I take you to application book 38, line 52. The passage goes through to 39, line 15:

Mr Still held a green card. It was he who precipitated the events –

et cetera. Your Honours can read it as well as I can, through to about the fourth or fifth line. The important point is that he was inducted. He was inducted. You will find that referred to again, and specifically, at page 7 of the application book at line 48. That is an incorrect reference, I am sorry. I will go on. Mr Still was the man who determined the set up and the use of the sponge and you will find that evidence at page 9 of the application book, about line 15:

To the extent that there be evidence that the Code is reflective of practice, or indeed known, Mr Still is the only source. Each of the plaintiff and Mr Stewart disavow knowledge of either the Code or the need to secure the pipe during cleaning. If they be properly reflective of the knowledge, expectations and practice of concrete pump operators/linesmen, the accident is either inexplicable or caused by the use of a concrete bag, and thus caused by Mr Still’s casual act of negligence.

Again at page 11, line 10:

neither Mr Still nor Mr Stewart took any direction from anyone associated with the third defendant or the first defendant.

Mr Still was in charge. At page 15, line 10:

Mr Still was aware that the pipe was not attached to the bin –

before he went upstairs and the like. At line 49 there is another one, “Mr Still is not a party to the proceedings”. I will not worry about that. The point is that Mr Still in charge of the operation, he was inducted, it made no difference at all to the manner in which he went about organising and directing the work. At page 38, line 53, he had a green card, he “precipitated the events”, he assisted “in placing and balancing the unsecured pipe”, he used the ad hoc piece of equipment and he was the person who was relevantly assuming the entrepreneurial risk; his fault, not ours.

GUMMOW J: Thank you, Mr Maconachie. Yes, Mr Garling.

MR GARLING: If the Court pleases. I would simply wish to draw this to the Court’s attention. The case as pleaded had a number of bases for liability of Leighton, one of which is to be found at page 93 of the application book, paragraph 51, “a non-delegable duty” of care.

GUMMOW J: I think you have a last minute reinforcement.

MR GARLING: No, your Honour. He was here this morning.

GUMMOW J: No, no, of a document.

MR GARLING: A document. A last minute reinforcement. Thank you. I read the parts, your Honours, this morning, but may I hand them up to the Court in case that assists.

GUMMOW J: You had better tell us what it is so your client knows.

MR GARLING: It is the amended statement of claim, your Honour. If your Honours go to page 3 of it, this is the part that my learned friend drew to the Court’s attention. Page 3 sets out the particulars of the breach of common law duty. As in common with a lot of pleadings, your Honour, it does not articulate the precise nature and content of the common law duty. I am not complaining about that here, but the particulars of breach often articulate what the nature and content is. Your Honours see that at the top of page 3, subparagraph (b) is the induction issue. The balance of the issues down to subparagraph (k) seem to enliven obligation similar to employer/employee obligations. At paragraph (k) is:

Failing to ensure that the Code of Practice for pumping concrete (especially clause 3.18) was being observed during the cleaning of the concrete pipeline.

That of itself would provide sufficient reason for exhibit J to be tendered. When that was dealt with by the Court of Appeal at paragraph 51, page 93 of the application book, the proposition is put that there was:

a non-delegable duty to persons coming onto the site to take care for their safety.

Mr Fox not being an employee of Leightons or anywhere close, the court at 52 says:

There being no reason presented in this case to suppose that subcontracting concrete pumping services was in any sense unreasonable, there is no basis for importing –

employer obligation, et cetera. Then at line 24:

Leighton cannot be said to be liable on this basis.

Paragraph 53 on page 94:

claim of liability based on a duty to supervise the activities of the concrete pouring, or at least the cleaning-out –

and that is held to fail. Then at paragraph 54, which I took to the Court to before, the existence of the duty is upheld only on the induction training basis. So for those reasons we submit that although the concrete code was mentioned in pleadings and may have fallen for consideration, it was not relevant in the way that Justice Basten held that it was.

HEYDON J: Pretty nice point you are taking. Have you looked at the written submissions in the Court of Appeal?

MR GARLING: Yes. I can tell your Honour this. I have looked at the written submissions. The submission by my learned friends was not as perhaps clearly separated into the three categories of possible liability for negligence as the Court of Appeal separated them. The submission said that the first respondent, Leighton, undertook induction pursuant to regulation 213. It had an obligation to ensure that OHS induction training was undertaken. It then says there was a clear breach of that mandatory regulation. Then it goes on to say that the code of practice for pumping concrete had a purpose of providing guidelines, et cetera, but it does not
directly, it must be said, say that that was part of induction. It follows with the general submission.

The response in written submissions was that the code was not part of any obligation of Leightons. I will just turn up what was put. What was said in the written submissions in response, there was no basis for her Honour to find that the first respondent was and ought to have been informed of the provisions of the code. It is submitted there was no basis for her Honour to find induction training included any reference to the code. There is no evidence on these issues and it went on to deal with what the evidence was about what industry practice was. So that is the extent of the exchange on written submissions.

I have sought out notes of oral argument. I have none. I have merely unsubstantiated recollection which I do not think is appropriate for me to raise. If the Court pleases.

GUMMOW J: Thank you, Mr Garling. We will take a short adjournment.

AT 2.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GUMMOW J: Mr Maconachie and Mr Garling, you may need some time to get instructions on this. If we were to grant special leave, would your clients consent to the imposition of an obligation to pay the costs of the first respondent in any event in this Court and not seek to disturb the costs order in favour of Mr Fox in the courts below?

MR GARLING: I have those instructions.

MR MACONACHIE: I do not have those instructions.

GUMMOW J: You had better get them.

MR MACONACHIE: I will seek those instructions.

GUMMOW J: Yes. You can mention it again when you have the instructions. It should not take you long, should it?

MR MACONACHIE: I cannot tell, your Honour. I would think not. In fact, I am sure it will not be, but I cannot speak for others.

GUMMOW J: All right. We will stand both matters in the list until we hear from you again shortly.

MR MACONACHIE: Thank you, your Honour.

AT 2.17 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.36 PM:

GUMMOW J: Now, Mr Maconachie, have you heard anything yet?

MR MACONACHIE: No. I have been looking in the back of the Court to see whether or not those instructions have been forthcoming. Could it stand for a few more minutes and I will deal with it myself.

GUMMOW J: What I was going to do, Justice Heydon and I will sit again at 9.30 on Monday and you can send up your prospective juniors.

MR MACONACHIE: There is another way forward and that is for your Honours to impose the condition and if it is unacceptable, we will not proceed.

GUMMOW J: No, no, no.

MR MACONACHIE: Very well, your Honours. I will see to it there is somebody here at 9.30 am on Monday.

GUMMOW J: Applications 7 and 8 will stand over before Justice Heydon and myself to 9.30 am on Monday, 17 November 2008.

AT 2.37 PM THE MATTER WAS CONCLUDED