Strong v Woolworths Limited T/as Big W & Anor [2011] HCATrans 131 (13 May 2011)

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Strong v Woolworths Limited T/as Big W & Anor [2011] HCATrans 131 (13 May 2011)

Last Updated: 16 May 2011

[2011] HCATrans 131

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S268 of 2010

B e t w e e n -

KATHRYN STRONG

Applicant

and

WOOLWORTHS LIMITED T/AS BIG W ABN 000 014 675

First Respondent

CPT MANAGER LTD ABN 054 494 307

Second Respondent

Application for special leave to appeal

FRENCH CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MAY 2011, AT 10.34 AM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC: May it please your Honours, I appear with my learned friends, MR T.J. WILLIS and MR E.G. ROMANIUK, for the applicant. (instructed by Leitch Hasson Dent Solicitors)

MR J.E. MACONACHIE, QC: I appear for the first respondent, if your Honours please. (instructed by Bartier Perry Solicitors)

FRENCH CJ: There is a submitting appearance for the second respondent. Yes, Mr Toomey.

MR TOOMEY: May it please, your Honours. Your Honours, the matter before the Court involves two complaints by the applicant, one relating to the legal decision of Justice Campbell accepted by the Court as to the content of section 5D(1) of the Civil Liability Act 2002 (NSW), and the second, a method of approaching a factual decision which we say did not contain the necessary analysis which ought to have been done had the cases been followed. The 5D point concerns, of course, the description of the effect of section 5D(1)(a) in paragraph 48 of the appeal judgment at page 100 of the application book. I should start at 47, your Honours:

When causation was decided according to the common law, it was held that a defendant having materially increased the risk of an injury of a particular type occurring is not the same as the defendant having materially contributed to (and thus, according to the common law, caused) a particular injury of that type that has occurred: Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 316 per Mason P.

Now, apart from the “exceptional case” that section 5D(2) recognises, section 5D(1) sets out what must be established to conclude that negligence caused particular harm. That emerges from the words “comprises the following elements” in the chapeau to section 5D(1).

Section 5D(1) is reproduced in paragraph 45, one page back, your Honours –

“Material contribution”, and notions of increase in risk, have no role to play in section 5D(1).

Your Honours, we read those three sentences as saying you must prove that negligence caused particular harm. If you prove that negligence materially contributed to the harm, you have not proved that negligence caused the harm.

FRENCH CJ: So, just looking to the facts of this case in that context, am I right in saying that the finding of which you complain is that which says that the application of a reasonable minimum approach to cleaning this particular area using a 15 minute cycle, or whatever it was that was applied or supposed to be applied in the balance of the area, would not have made a difference in outcome – you could not say it would have made a difference in outcome because you could not say when the chip dropped.

MR TOOMEY: That is so, your Honour, yes.

FRENCH CJ: And therefore, it is not shown on the balance of probabilities that its absence, if you like, was a necessary condition of the accident.

MR TOOMEY: Yes. That is, we think, the way in which his Honour used it.

FRENCH CJ: That is how I read it.

MR TOOMEY: Yes, it is, I must say, with respect to his Honour, not entirely clear to us what use he did make of the absence of material contribution, what he believed to be the absence of material contribution as being covered by 5D(1). Where his Honour decided that the matter - - -

FRENCH CJ: Sorry, before you go to that, the absence of the reasonable cleaning system was not – we are into all sorts of negatives here, but was not a necessary condition of the accident for the purposes of 5D(1)(a).

MR TOOMEY: Yes.

FRENCH CJ: Now that is how, as I understand the reasoning, you say there should have been a broader approach bringing in this notion of “material contribution”, that there was some sort of enhanced risk, and that he has taken too confined an approach to 5D(1)(a). Is that how it goes?

MR TOOMEY: We do, your Honour.

FRENCH CJ: So I need to understand how this “material contribution” concept – it works in the context of the text.

MR TOOMEY: Yes. Your Honour, his Honour is saying, it seems to us, that there can be no modified cause. In other words, it is either a cause or it is not. “Material contribution”, which has been in the common law for a century, and certainly has been at the forefront of proof of causation and negligence since Bonnington Castings v Wardlaw is, according to Justice Campbell, removed from the law by section 5D(1)(a) because that is where it came in. If one looks at Bonnington Castings v Wardlaw, when Lord Reid said that a contributing matter which was not de minimis must be a material contribution, that was in the context of the “but for” test, which of course existed at common law as it does under this Act.

So what his Honour’s interpretation, we say, of 5D(1) means is that without saying so, the legislature have radically altered the causation test. His Honour does not, we would say with respect, give reasons why the section must be read that way, except for his dealing with “particular harm” in paragraph 50, but not, we say, in a way which justifies a reading of the section so as to make such a radical change in the common law.

The “but for” test, as expressed by Chief Justice Mason in March v Stramare, essentially equates to the essence of section 5D(1), although it is expressed slightly differently, and the two requirements are in a different order. It is on that basis that section 5D was not applied, that the Court of Appeal decided that they must decide the case themselves because it had been decided according to the common law and not to section 5D. That raises fair and square the question - - -

FRENCH CJ: Well, there was really no causation analysis at first instance, was there?

MR TOOMEY: No. With great respect to his Honour, it was an ex tempore judgment in a circuit, and one understands the difficulties, but certainly there was not much of a causation analysis either at common law, and certainly not under section 5D.

FRENCH CJ: None before really.

MR TOOMEY: Well, I cannot say that. Your Honour can. So there had to be a reconsideration, but we say that there had to be a consideration according to section 5D, not an emasculated section 5D. The decision of the Court of Appeal in Woolworths v Strong has not met the approval of other members of the Supreme Court. We refer in our submissions – I think paragraph 14 on page 121 of the book – in Zanner v Zanner, which is in our bundle, your Honours, President Allsop, with whom Justice Young agreed, questioned at [11] and [12] the correctness of the general conclusion by the Court of Appeal in this case that section 5D excluded notions of material risk – can I just read, your Honours, the two paragraphs that we refer to of the President? It is tab 4 of our bundle, paragraph 11, page 6 of 24:

The requirement to follow s 5D is clear. What its statutory content is and the extent of any continuity with developing common law concepts awaits judicial elucidation. In Woolworths Limited v Strong [2010] NSWCA 282 at [48] Campbell JA (with whom Handley AJA and Harrison J agreed) said that s 5D(1) excluded notions of “material contribution” and increase in risk. To the extent that his Honour was referring only to factors or circumstances from which a negative “but for” answer was given, so much is clear. However, the notion of cause at common law can incorporate “materially contributed to” in a way which would satisfy the “but for” test. Some factors which are only contributing factors can give a positive “but for” answer.

His Honour gives some examples, and he refers to Henville v Walker –

However, material contributions that have been taken to be causes in the past (notwithstanding failure to pass the “but for” test) such as in Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613 are taken up by s 5D(2) –

With respect, we do not agree with the learned President there, because we say that Bonnington Castings v Wardlaw was in fact an application of the “but for” test, treating material contribution as being a cause. His Honour went on:

There is no suggestion that the application of common sense is in any way foreign to the task in ss 5D(1)(b), (2) and (4). Indeed it would be an odd interpretation of a law of the Parliament that excluded such a consideration from an evaluation of this kind against the background of the common law and, in particular, in the light of the contents of the Ipp Report.

In a case called Benic, also referred to in paragraph 14 of our submissions, Benic v New South Wales, decided four weeks after this case in the Court of Appeal:

Garling J recorded at [516] his ‘profound disagreement’ with the opinion of the Court of Appeal that material contribution and increase in risk have been excised from any test of causation.

I would not say that “increase in risk” is part of the test of causation. I think that is still a matter of some controversy, but so far as it has been decided in this Court, I do not think it has been allowed.

HEYDON J: Let us assume your criticisms are correct. Your application of the supposedly correct position appears in paragraph 17 of your written submissions, page 122.

MR TOOMEY: Yes, your Honour, 17 to 19, really.

HEYDON J: Mr Maconachie says you have reversed the burden of proof, particularly the sentence:

There is no permissible basis for the conclusion that the debris had come on to the floor in the 10-minute or 20-minute intervals immediately preceding the Applicant’s fall.

Just how do you fit in the correct legal construction with the facts or the evidence?

MR TOOMEY: Your Honour, with respect to Justice Campbell, his application of his use of “exclusion in material contribution”, we say, is opaque because he does not really say why and he does not really say, we would submit, what effect that had on his judgment, but he did say he did that in making a decision that section 5D had to be applied. So we say it is to be assumed that he did, in some way, use what we say is this incorrect construction of section 5D(1)(a).

The question of lack of proof can be met in a number of ways. We have for your Honours – unfortunately, it is not in our bundle – but if I can hand up, your Honours, copies of a case called Kocis, which is a case decided in the Supreme Court of Victoria in 1996, the court being Justices Ormiston, Phillips as he then was, and Hayne JA as he then was. That was a case where the difficulties caused by this factual situation of there being either no system, or a system which is not properly applied, was considered, and the passage from Justice Phillips’ judgment at 419 is apposite to a case such as this.

It was a jury case, but we say, with respect to others who might differ, that there is no difference. It is either proved or it is not proved to the satisfaction of the jury or to the satisfaction of a judge. The case was one in which there had been an injury to the plaintiff at about 10 am. The supermarket had a system of checking for spillages every half an hour or so, but the system had not been in operation for one to one and a half hours before the accident.

She, the plaintiff in that case, came into the aisle where she slipped on the disinfectant which was on the floor about five minutes before the fall. The learned trial judge corrected the jury that they must enter a verdict for the defendant because he said there was no evidence on which it could be found that the slip had occurred more than five minutes before she fell. He said it was speculation. There is a - - -

FRENCH CJ: Does he not mean the spill had occurred?

MR TOOMEY: A spill, yes, your Honour. There is an elucidation of the problems by Justice Phillips at 419 to 421, and at 430 to 432, Justice Hayne does likewise. The court found that it was open to the jury. It was remitted for a new trial. It was found by the court that it was open to the jury to find that the defendant had not had a safe system and that had been causative in the accident.

In this case, there were, of course, four and a half hours between the opening of the supermarket and the fall. The cleaning contract stipulated a quarter of an hour cleaning sessions. That would have meant, in that four and a half hours, 18 inspections. The practice appears to have been that it was done every 20 minutes, but that still would have been 14 inspection times. I should point out to your Honours that this was a Woolworths area which was not cleaned by the general cleaners.

FRENCH CJ: Mr Toomey, you are into your red zone now. If you could take us straight to the point of onus in answer to what Justice Heydon put to you.

MR TOOMEY: Your Honours, effectively, what the court said was that in appropriate circumstances, although it is not possible for a plaintiff to prove the actual time of the spill, if the circumstances indicate the possibility of a long period, and if the probabilities are that the drop of the material was outside the period when the last inspection should have taken place, then the plaintiff may win the case. Justice Hayne made the point that it is necessary to consider any differentiating facts, and of course there were differentiating facts in this case because the Woolworths area went to a food court and the accident happened at lunchtime. That was, in fact, the factual basis on which Justice Campbell based his decision.

FRENCH CJ: All right. Thank you, Mr Toomey.

MR TOOMEY: Thank you, your Honour.

FRENCH CJ: Yes, Mr Maconachie.

MR MACONACHIE: The case has nothing to do with it. It was a jury trial, a directed verdict, as my learned friend has said, and the decision of the court was that on the facts of that case it was open for an inference to be drawn. The legal issue was whether or not the trial judge had properly directed a jury to return a verdict for the defendant, and the Court of Appeal said it was not right for him to so direct. That is all the case decided. The fact that the facts of that case might have some kind of broad similarity to this case has nothing to do with this appeal.

My learned friend is, in my submission, wrong when he says, as he did this morning, that the formulation or the interpretation of section 5D by Justice Campbell removes from the law of causation material contribution, it does no such thing. One only has to read on from that which my learned friend drew your Honours’ attention to at page 100 of the appeal book, where at line 39, his Honour said:

It well may be that many actions or omissions that the common law would have recognised as making a material contribution to the harm that a plaintiff suffered will fall within section 5D(1), but that does not alter the fact that the concepts of material contribution and increase in risk –

and I would interpolate “as such” –

have no role to play in deciding whether section 5D(1) is satisfied in any particular case.

Zanner v Zanner, in the very passages to which my learned friend took you, Justice Allsop at page 6, paragraph [11], says effectively the same thing. Material contributions that have been taken to be causes in the past, notwithstanding failure to pass the “but for” test such as Wardlaw’s Case, are taken up by section 5D(2), which though referring to an exceptional case is to be assessed in accordance with established principle.

Justice Campbell said nothing exceptional. He applied the principles of construction of statutes that this Court elaborated in Project Blue Sky, most recently in Lacey, and the construction he gave it is unexceptional. But even if you were to take the view that, as President Allsop said in Zanner, this area of the statute requires elucidation, this is not the case to do so. That is because the legal points about whether or not there could be drawn an inference favourable to the plaintiff were lost in the Court of Appeal. The point that stands foursquare, in our submission, against my learned friend is at page 108 of the application book at line 24, where Justice Campbell says:

Because of those aspects of the facts –

and I am not going to read them out to you. They are there to be read –

I am not prepared to draw that inference.

He did not say that as a matter of law, it was not open to be drawn. He said “as a matter of fact, I am not prepared to draw it”. That is what section 75A required of him, and whatever construction is given to the section – see Mr Toomey’s argument at paragraph 17 – that factual finding denies the

plaintiff a verdict, a finding of causation, and that is because the unchallenged finding of fact by Justice Campbell was that periodicity was all that was required. That was the minimum standard, and once that finding was made, there had to be something more than the mere presence on the floor of that which the plaintiff slipped on. Beyond that, your Honours, we say there is nothing more to be said. They are the submissions for the respondent.

FRENCH CJ: Thank you, Mr Maconachie. Yes, Mr Toomey.

MR TOOMEY: Your Honours, this question of what my learned friend calls periodicity has been dealt with in other cases. There was a case called Brady v Girvan in the New South Wales Court of Appeal, where the same sort of analysis as was done in Shoey’s Case, that is, the length of time when there had been no cleaning and so on, and the probabilities as to whether it had happened within, in this case, the 15 minutes before the accident or whether it had happened and I think in Brady v Girvan it was five hours before the accident, the Court of Appeal in that case held that because it was five hours and there had been no cleaning, that the probabilities favoured it being in the lengthier period.

Can I point out to your Honours that the finding by the Court of Appeal in this case says that although there had been no cleaning from eight o’clock that morning, that the probabilities cannot be said to be that in the four and a quarter hours from eight to 12.15 that the chip did not fall during that time. The food court was open at eight. There is no, in our respectful submission, on the probabilities - it ought to have been found. The probabilities clearly were that it had happened at that period, not within the 15 minutes before, and of course the situation was created by the admitted breach of duty by the defendant. Their answers to interrogatories are illuminating at paragraph 21.

That test of the period of time, and the period of the last cleaning time, is one which has been applied time and time again. Kocis is a very valuable source of all the Australian cases. There is also a very new Fleming on tort, which contains curiously - - -

FRENCH CJ: This is the 10th edition, I think, is it not?

MR TOOMEY: It is, your Honour, and it contains a heading “Supermarkets”, which one would not expect to find in a book of torts. It raises interesting questions as to the onus of proof, and the reversal of proof. It refers to the judgment in Kocis in note 77:

In particular, the absence of any system of periodical inspection permits an inference of causality, without concentrating on the time the substance might have been spilt –

It also refers to the English practice - - -

FRENCH CJ: This is referring to a standard straddling negligence and strict liability. We are in the territory of negligence.

MR TOOMEY: Yes, we are, your Honours, but it may be that the consideration that there has been a longstanding breach of duty in this case for four and a half hours, where it is known that there is a substantial danger may inform the decision on negligence and causation. Those are our submissions.

FRENCH CJ: Thank you, Mr Toomey. Right, there will be a grant of special leave. This would not take more than a day.

MR TOOMEY: No, your Honour.

FRENCH CJ: Mr Maconachie? Thank you.

AT 11.07 AM THE MATTER WAS CONCLUDED