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Grills v Leighton Contractors Pty Limited & Anor [2016] HCATrans 118 (16 May 2016)

Last Updated: 18 May 2016

[2016] HCATrans 118


IN THE HIGH COURT OF AUSTRALIA


Office of the Registry
Sydney No S264 of 2015


B e t w e e n -


ADAM LEE GRILLS


Applicant


and


LEIGHTON CONTRACTORS PTY LIMITED


First Respondent


STATE OF NEW SOUTH WALES


Second Respondent


Application for special leave to appeal


KIEFEL J
BELL J


TRANSCRIPT OF PROCEEDINGS


AT SYDNEY ON MONDAY, 16 MAY 2016, AT 2.00 PM


Copyright in the High Court of Australia

MR B.J. GROSS, QC: May it please the Court, I appear with MR K.O. EARL, for the applicant. (instructed by Carroll & O’Dea Lawyers)


MR M.J. WINDSOR, SC: If your Honours please, I appear along with MR R. PERLA, for the first respondent. (instructed by Thompson Cooper Lawyers)


KIEFEL J: Yes, Mr Gross.


MR GROSS: Your Honours, the application seeks special leave and also we seek that address time provisions not be applied. My learned friend has kindly advised me that they do not take any point in relation to the lateness of the filing of the - - -


KIEFEL J: Do you require an extension?


MR GROSS: Well, we have submitted that we - - -


BELL J: There is a controversy about the date from which - - -


MR GROSS: There is contrary, yes, but we say the time runs from when the judgment is entered, when the judgment is pronounced, and that was the stage when the orders were made. But, in any event, your Honours, my learned friend does not take any point about that.


KIEFEL J: There is no objection, I take it, regardless of how long the period is required to be?


MR WINDSOR: Your Honour is correct.


KIEFEL J: Yes, all right then, we will proceed on that basis.


MR GROSS: I am obliged to my learned friend. Now, your Honours, the second respondent, the State of New South Wales, has filed a submitting appearance and so they are not here. Your Honours, we submit that the Court of Appeal erred in law by basing the finding of negligence by the police force upon the police force as the applicant’s employer, owing the applicant a “very heavy”, “non-delegable” duty of care.


Secondly, we contend that the Court of Appeal erred in law by failing to take into account the competing responsibilities, particularly on the morning of the accident, of the police force for the safety of the Vice-President and of the public and for facilitating traffic management in relation to his motorcade and other traffic affected by that.


Thirdly, we submit that the Court of Appeal erred in finding negligence by the police force, that is, by the State of New South Wales which represented it, because first of all there was no evidence of negligence; secondly, the court imposed too heavy a burden on the police force, describing its duty as employer as a heavy responsibility and very heavy duties; and also by finding the particular aspects of negligence which are at paragraph 140 on page 120.


KIEFEL J: Mr Gross, is there not a threshold question that might be relevant to special leave, and that is that you are arguing a position, and you did argue in the Court of Appeal, a position which was not taken at trial? That is, it was argued at trial that the second respondent was liable – it is a considerable difficulty, I suspect.


MR GROSS: Well, we argue that in your terms – in our reply written submissions, we point out that we sued Leighton first and they basically said that the boom gate was lowered because Superintendent Blair ordered that be done, so we had to join them in; and secondly, they pleaded a defence under 151Z of the Workers Compensation Act, that issue to take off the plaintiff’s damages against Leighton an amount related to the fault of the State of New South Wales.


KIEFEL J: You succeeded in having findings of negligence made against both defendants and then you went to the Court of Appeal and said one of them was not negligent.


MR GROSS: Your Honour, our position always was at trial that the Leighton Contractors had sole responsibility. Obviously, in the event that our submissions about that were rejected, we had a backup position, so there was another defendant there. But, your Honours, we made clear that all of the fault was the fault of Leighton.


KIEFEL J: It does not matter if you describe it as a backup position. It was your position at trial that both the first and second defendants could be held liable, and they were.


MR GROSS: That was the commencing point at a stage when there had not been litigated the question of who gave the instructions for the boom to be lowered. If it was the police officer, well, obviously they were liable. If it was not the police officer - - -


KIEFEL J: It was the plaintiff’s case, evidence was adduced against both defendants and they were both held liable in different amounts.


MR GROSS: Yes, but we certainly were not – at the conclusion of the evidence, we were not seeking that the State of New South Wales be found liable. We wanted it all against the Leighton Contractors, for the reasons given.


BELL J: Mr Gross, when you – your reasons for the grant of special leave at application book 185 are first that:


The Court of Appeal judgment places an excessive burden on Police Forces –


and allied to that is the suggestion that in some way the reputation of the police force will be tarnished by this judgment handed down some time ago. The real burden of your complaint is the operation of section 151Z of the Workers Compensation Act in consequence of the apportionment that was made, is it not?


MR GROSS: Well, your Honour, that is the outcome under section 151Z, which was the result of the anterior errors.


BELL J: Well, it is difficult to see the application of the provision, whatever one thinks of the policy informing the provision, as giving rise to a miscarriage of justice.


MR GROSS: Your Honour, we complain that the outcome gives rise to that injustice rather than - - -


BELL J: By reason of - - -


MR GROSS: It is the – the reasoning which leads to that outcome creates an outcome where we say if all the fault is Leighton’s, therefore 151Z cannot be applied. It is consequential - - -


BELL J: But what I am getting at, Mr Gross, is the complaint is with the particular finding in this case, if I may say so, the suggestion that there is some broader point of importance arising out of the reputation of the police force is a difficult one to make good.


MR GROSS: Your Honour, that is a bit of flourish at the time of draft, that document, but your Honour, on the other hand the question of what standard the police force is to be held to is relevant and we would submit that there was a finding which obviously affects not only the applicant but also the State on that. Your Honours, could I just make these points, if I may move on?


Your Honours, the police force had control of the security operation called Operation Warwick, i.e. planning for the safety and security of the Vice-President, his party and of the entire community which might be at risk during that day. Your Honours, the police force was in charge of the traffic management and had its traffic management plan for the purposes of that security operation and efficiently facilitating traffic movement and providing for the safety and convenience of members of the public.


Your Honours, Leighton was the owner of the Eastern Distributor motorway. All of its equipment and machinery used in relation to the operation of the Eastern Distributor was owned by it. Leighton was the sole employer of the employees, including motorway control officers who had responsibility in relation to the operation of the Eastern Distributor. Leighton had control over all of the traffic control systems and equipment used for the operation of the Eastern Distributor. Leighton’s employees had all of the expertise and practical experience and knowledge in operating the traffic systems and equipment, but the police did not. Your Honours, could I go to the judgment, if I may?


BELL J: Mr Gross, there is a unanimous judgment of the Court of Appeal upholding Justice Schmidt’s conclusion respecting duty, breach and apportionment. What is the special leave point that you are going to take us to?


MR GROSS: Well, your Honour, the fact that the Court of Appeal applied a non-delegable duty of care standard to the police force where it was not appropriate to apply such standard. Your Honours, could I briefly make the point if I can by reference to the passages? Your Honours, at page 118 at line 30, middle of paragraph 124, her Honour the trial judge found:


that it was “relatively simple” to provide instructions in the Traffic Management Plan as to what was required for the arrival and departure of the motorcade or to give written instructions to Leighton as had been given to police officers.


Had those simple precautions been taken “the risk . . . could have been avoided”. So, in other words, the trial judge had based herself on the idea that there is a written protocol in the traffic management plan itself or, alternatively, written instructions to Leighton and, your Honours, that was a finding which was rejected by the Court of Appeal. So we do not have concurrent findings of fact here. At page 119, paragraph 130:


I am of the opinion that there is validity in the State’s complaint that there was no evidence in the court below as to why documentation of the instructions relating to the closure of the ED –


that is Eastern Distributor:


was a reasonably practicable alternative. It may be that had that allegation been expressly made, evidence could have been directed to the reasonableness or the practicality of that step.


Notwithstanding that, I am of the opinion that the State breached its duty of care. The State was in an employer/employee relationship with the appellant at the time of the accident and owed him a non-delegable duty of care as his employer “to take reasonable care


et cetera. Now, that non-delegable duty of care also surfaces as an expression in paragraph 136. Your Honours, the plaintiff did not argue for a non-delegable duty of care and, your Honours, the State of New South Wales in its written submissions – I am looking at those – basically said that the employer owes its employee a duty of reasonable care, the duty is personal, non-delegable, which means no more than the employer cannot discharge its duty to the worker by delegating its fulfilment to a competent contractor. So, apart from those borrowed lines from authority, the - - -


BELL J: What in point of principle is wrong with the application of those borrowed lines from authority?


MR GROSS: Well, there is no non-delegable duty of care owed by the police force as the employer. Your Honours, could I just very briefly indicate the passages I am relying on? If your Honours go back to page 119, there are three paragraphs there in the bottom half which basically refer to a reasonable care standard, and at paragraph 135:


The standard of care . . . has been expressed variously. In O’Connor . . . the standard of care for an employee’s safety “is not a low one”.


Et cetera. At 136:


In Liftronic Pty Ltd v Unver . . . Gummow and Callinan JJ stated, at [85], that that an employer:


“... bore a heavy responsibility to devise –


et cetera. I will not read all this. The third line:


The ultimate legal responsibility for its fulfilment could not be delegated. In this sense –


et cetera, et cetera, and then refers to:


the very heavy duties that the law in Australia casts on an employer.


So that twice the court is referring to a non-delegable duty of care. Your Honours, the negligence that was found at paragraph 140 are matters which we have summarised in our written submissions, that it was found that there should have been an unambiguous clear instruction as to what had to be done. The police force should not have assumed that the motorway controller on duty knew what had been done three days before by his fellow employee. It assumed that the motorway controller had access to the logbook to check what had been done. Well, no one was to assume that he was ignorant of such matters. Thirdly, that - - -


BELL J: Mr Gross, taking us to these facts and making assertions such as the last one, how does it identify some point of principle that would justify the grant of special leave?


MR GROSS: Yes, well, could I abandon that background and come to answering your Honour Justice Bell’s question? Your Honours, a non-delegable duty is a duty to see to it that care was taken by Leighton in this context. The respondent states in effect that is what was done and endeavours to support that. The non-delegable duty of an employer is applicable where an employer has exclusive responsibility for the safety of work appliances, the safety of the work premises or the safety of the system of work in situations where in these relevant respects the employee’s safety is in the hands of the employer. So it is the employer’s responsibility and the employee can reasonably expect that reasonable care and skill will be taken by the employer.


Your Honours, it has no application to the police force in this sort of situation for two reasons. Firstly, one cannot apply that principle to situations where the police officer is on the road or in the community or interacting with other organisations or performing his duties on premises controlled by another organisation.


The second aspect is that police officers, your Honours, are only employees for certain limited specified statutory purposes. Your Honours, the police officer is in the service of the Crown. It is inappropriate to treat him as being an employee for all relevant purposes in this context and, your Honours, it is well-known that vicarious liability principles – for the purpose of those, the police officer is treated as being in the service of the Crown and not a servant of the Crown but nevertheless liability attaches by virtue of statute.


In the industrial arena, the Commissioner is deemed to be the employer. Under the Workers Compensation Act the Crown is deemed to be the employer for the limited purposes of that Act; the compensation provisions. But one cannot treat police officers as subject to all of the standard principles in relation to the obligation of employer when it comes to - - -


BELL J: Accepting that is so for certain purposes, here the finding of the Court of Appeal at application book 120, paragraph 140, was that the instruction given by Inspector Blair was “inadequate at a number of levels” and, without going into the details of that, this is not a case that raises the sorts of considerations you are raising concerning the special position of the constable, and the like. It is a finding, is it not, that the person who – that the New South Wales Police Service as the employer of the applicant had failed to provide the instructions that ought reasonably to have been provided to Leighton.


MR GROSS: But, your Honour, this is not a context where there was no suggestion that Leighton was ignorant of what was meant to be done. There had been prior meetings and discussions and the like.


BELL J: But that is a factual matter, Mr Gross. What I am taking you to is the point of principle.


MR GROSS: I agree. But, your Honours, at the same time one cannot hold the police force to the standard of an overly officious, untrusting and anxious helicopter nanny checking whether or not an employee has spoken to another employee or whether someone has looked at his records. The responsibilities of the police force do not allow for that demanding standard to be applied to the police force when they are dealing with someone in the community and when they are dealing with what effectively is a risk in the community. So that we submit that the cases of non-delegable duty of care all have in common a particular responsibility where there is capacity to control in effect what the contractors or so-called delegates do.


But this is not a delegate situation or a contract situation. None of the relevant features that might otherwise attract a non-delegable duty of care apply, particularly where the injury is occurring well away from where the employer’s premises are and it is out there in the community where risks can be created by third party organisations. So that we would submit that it is unfair to impose upon a police officer the likelihood that the damages caused by a tortfeasor will be reduced by virtue of so-called fault of an employer which just cannot measure up to any legal standard or is totally unreasonable on the evidence.


So, your Honours, we submit that the Court of Appeal intruded in an additional standard in making its findings of fact which was not before the trial judge, which the trial judge makes no reference to at all, where the

parties were not submitting that the State of New South Wales – Leighton Contractors was not submitting it – that the police force were subject to a non-delegable duty of care. So, this different standard with different findings of breach is based upon a finding of the scope of duty of care which goes well beyond what was litigated below.


BELL J: Is there somewhere in your submissions where you highlight this suggestion that there has been a shift in Leighton - - -


MR GROSS: Your Honour, no. The findings made are by reference – I am sorry, we have submitted that the findings have been made by reference to a non-delegable duty of care, but we did not explicitly say this was not part of the reasoning of the trial judge or part of the submissions of the parties.


BELL J: Well, it is a rather material matter to raise, is it not?


MR GROSS: Your Honour, it is, yes. But, in any event, the usual restraint on where you have got concurrent findings of fact cannot apply because they are totally different findings of fact where the second set of findings by the Court of Appeal are based on an analysis of duty of care and an application of that non-delegable duty of care which the evidence cannot fairly support. Your Honours, I think that completes my submissions, unless there is something else.


KIEFEL J: Mr Windsor, we need not trouble you.


In our view, the interests of justice do not require the grant of special leave. No point of principle is identified. This case turns upon its own facts. Special leave is refused.


There will be an order for costs in relation to the first respondent. I think there was an issue raised, Mr Gross, in relation to – was there a request by the second respondent for costs?


MR GROSS: No, they just filed a submitting appearance.


KIEFEL J: Submitting appearance, so there is no issue - - -


MR GROSS: They had some qualification – if the case went further and someone had to play with the costs orders made by the Court of Appeal they would like to be heard on that. But, beyond that, they are completely silent, not surprisingly.


KIEFEL J: All right, we do not need to deal with it then.


MR WINDSOR: I am sorry, your Honour.


KIEFEL J: Yes, Mr Windsor.


MR WINDSOR: At page 206 of the application book at line 22, the State of New South Wales makes reference to – it speaks to the order of the court save as to costs. Whether that is just.....I am not sure.....concerned.....


KIEFEL J: Yes.


MR GROSS: I think that is what they had in mind, what I said, but my learned friend is correct – sorry to interrupt, your Honours.


KIEFEL J: Thank you. That does not require any further order.


AT 2.21 PM THE MATTER WAS CONCLUDED



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