Coles Group Limited v Costin [2016] HCATrans 58 (11 March 2016)

High Court of Australia Transcripts

[Index] [Search] [Download] [Help]

---

Coles Group Limited v Costin [2016] HCATrans 58 (11 March 2016)

Last Updated: 17 March 2016

[2016] HCATrans 058

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
BRISBANE No B50 of 2015

B e t w e e n -

COLES GROUP LIMITED ACN 004 089 936

Applicant

and

DEBORAH ANNE COSTIN

Respondent

Application for special leave to appeal

KIEFEL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 11 MARCH 2016, AT 10.40 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR M.J. MAY, for the applicant. (instructed by Cooper Grace Ward)

MR W. SOFRONOFF, QC: May it please the Court, I appear with my learned friend, MR M.T. O’SULLIVAN, for the respondent. (instructed by Shine Lawyers)

KIEFEL J: Thank you. Yes, Mr Walker.

MR WALKER: Your Honours, may I take you please to pages 42 and 43 of the application book, in what might be called the further reasons of the Court upon application by us. There are – particularly in paragraphs 13, 16 and 17 in the passages to which I am about to come – there are, in our submission, a few concepts which show why this is a case worthy of special leave and why, in this case, there are sufficient prospects of showing error that justify that grant.

It is, of course, against the background that had already been reached, correctly by the court, that these concepts assume importance. The background is that there was an injustice done to my client by a failure to appreciate a prejudice of a kind which the statutory provisions posed as an obstacle – if not, an absolute bar – to the grant of a discretionary extension of time. There was, in terms of the well-known principles, and it might be thought policy referred to by this Court in Brisbane South, there was a firm foundation for a refusal of an extension of time, and yet it was granted because – and only because – of the undertaking in question. We have been so bold on researches to suggest this is the first that has been done. Certainly, it is the first time appellate explanation and approval of that course has appeared in this country.

KIEFEL J: Well, is the question that arises whether or not the undertaking can define the action for the purposes of the Act?

MR WALKER: That is the first of the concepts, yes. The second is and how can that, as a matter of principle, remove the prejudice, they are intertwined? As to the first, one sees an apparently unexceptionable proposition – namely, the need properly to identify the cause of action. That is unquestionably correct and it does not alter if you use the statutory language of right of action. However, in our submission, the desirable clarity with which paragraph 13 ends, is not a clarity which is produced by then dividing up or filleting a common law cause of action in negligence by reference to matters which are either matters perhaps of particulars or perhaps, even more, simply matters of evidence.

GAGELER J: What is a common law cause of action in negligence other than the collocation of facts on which the plaintiff relies?

MR WALKER: Nothing, nothing else. That is, of course – it falls to be judged, by reference, when one comes to this part of an argument in negligence, it falls to be judged only by the reasonableness of the defendant’s response. That is, when all other issues are down and one comes to the question of breach negligence, it is a question of judging whether reasonable care has been displayed by a reasonable response to the risk posed. That is why a plaintiff’s holding back of a positive allegation will never, of its nature, restrict the case so as to remove prejudice of a kind posed in this case.

Let me make it clear. There are parts of a negligence action which would lend themselves to being removed by a device such as an undertaking – such as, an undertaking not to claim certain heads of damages because of irremediable factual obscurity to which time has lent permanence about matters by which the defendant might answer such a claim. That is because damages lend themselves for an itemised list, but particulars of negligence – though they are particulars of negligence – do not define the case because the case involves the defendant’s answer to the plaintiff’s claim.

GAGELER J: We are only concerned with the right of action, are we not?

MR WALKER: Yes.

GAGELER J: Which is the plaintiff’s positive case?

MR WALKER: Yes, and we are concerned, in this case, with the existence of prejudice suffered by the defendant because of the late-bringing of that right of action.

GAGELER J: I follow that. So is your real complaint in this case with the identification of the prejudice and the view that was taken that the prejudice would be accommodated by the giving of this particular undertaking?

MR WALKER: Particularly the last aspect and, yes, that means that, inevitably – as will always be the case in such proceedings – one has to look at the particular facts.

GAGELER J: What I am trying to identify is, where is the question of principle if you can accept - - -

MR WALKER: No, I understand. This is not simply, however, a case where there is a well-established principle. This is simply an instance of its application to particular facts. That would be a poor start and worse finish to an application of this kind. I accept that. Rather, there is, with respect, no well-established principle at all by which a plaintiff withholding a positive assertion in a case has ever hitherto been regarded as meeting the prejudice affecting a defendant who is not able to prove something.

That is the whole point. There is no well-established principle here but the plaintiff can, by undertaking, remove prejudice simply by saying, I will not try to prove X because, in a negligence case, it is conceptually important – as this Court has repeatedly said – never to move away from the fact that the wrong is the failure to take reasonable care. It is not a wrong to fail to administer course X or it is not a wrong to fail to have a supervisor within two metres, et cetera, et cetera. It is a wrong not to take reasonable care.

When a plaintiff says, my case is you failed to take reasonable care because you did not give adequate training, you allowed me to work alone and you allowed me to work without supervision, in our submission, it is no answer to the prejudice which is found in this case to be raised by our allegation of inadequate training to say, I will withdraw the particular act of training. Because the defendant remains able to say, in relation to working alone and supervision, but I gave you training which was adequate to ensure that whether you were working alone, or with or without supervision, by way of my reasonable response to the risk of you picking up something too heavy for your back to bear, I had reached the standard of reasonable care.

KIEFEL J: But, by that, is your submission really then that the undertaking is impractical?

MR WALKER: In this case, it plainly is impracticable but it emerges it is so because there is a conceptual error committed by saying that when a plaintiff frames or defines a cause of action in negligence by reference to particularised shortcomings in behaviour of the defendant, the defendant is protected from the prejudice by reason of the obscurity of facts which it otherwise could have relied upon. Training is, as was said at first instance in this case, right at the heart – at the centre – of the matter to the forefront of an allegation of lack of reasonable care.

Nothing in the plaintiff’s defining the case by refraining from alleging lack of adequate training, amounts to an admission that the training was adequate. After all, if it was truly adequate, as we have pointed out in written submissions that would appear that there could not be a cause of action. That is, you could not find negligence – depending, of course, on what you mean by being inadequate.

There is no admission that the training was adequate but there will not be a positive case made that it was inadequate. That does not answer the position which was always our position throughout that we wish to be able to answer the allegation of negligence by showing that the training we gave was adequate – adequate, that is, to meet the requirements of reasonable care, to meet the risk that fell in in this case. We cannot do that and we are not assisted in any regard – whether by way of our evidentiary onus or in resisting the plaintiff discharging her legal avenues.

We are not assisted in any regard by the plaintiff refraining from demonstrating, that is, pleading or claiming the inadequacy of training. And, in our submission, it goes beyond simply a particular exercise of discretion in a particular case, because this device is seen, in general terms – whether it is by undertaking or by what his Honour calls framing the pleading – this is seen as an answer to an established prejudice. If you can identify that the prejudice is because the plaintiff wants to raise a certain allegation, then simply withdraw the allegation and that allows the prejudice to be removed.

GAGELER J: But your argument is really that the prejudice is wider than the prejudice identified, or acted upon, by the court in this case.

MR WALKER: Yes, that the injustice – to use the word used in the Court of Appeal – the injustice of facing a stale claim in relation to the irremediable factual obscurity concerning our training – is something which cannot be met by the undertaking. In that sense, it is a complaint that the prejudice has been mischaracterised by the holding that this undertaking will meet it. But, we submit, there is general importance – doctrinal conceptual importance in this notion that a plaintiff can frame a cause of action in negligence and, by particulars, narrow that which a defendant can point to in answer because the defendant does not have to meet a case, ever, that I failed to do X or Y, by way of particulars.

The defendant meets the case by saying, whether I did X or Y, I did Z which means I met the requirements of reasonable case. This is a case which, in our submission, as to this expedient is informed by the fallacy that you can have a negligence case which is, as it were, filleted down to be a case of negligent lack of supervision, a negligent lack of company, a negligent lack of training, rather than simply a failure to take reasonable care.

GAGELER J: The difficulty with that for me is that it is so obviously wrong that it is hard to see that the Court of Appeal would have taken that view.

MR WALKER: But, they did.

GAGELER J: It is not the way I read their decision.

MR WALKER: But in 13 that is very much what is done. It leads into what is said in 16, particularly the last sentence. That is page 43, about line 25:

If . . . the applicant resiles from one or more of the allegations of breach –

“allegations of breach” is itself an unfortunate term because the breach is, you were negligent, the allegations of breach here are shorthand for the particulars –

and makes clear that such matters will not form part of her cause of action –

to which we say, that is all very well but your cause of action is in negligence. The defendant has sufficient autonomy, of course, at the time to have chosen the reasonable response. The common law is not prescriptive as to how you discharge your duty of care so long as you do.

That is why a plaintiff’s selection of those things which will be the issues in the plaintiff’s case by which they say, we hereby show you were negligent, that does nothing to constrain the defendant’s answer and, therefore, does nothing to meet the prejudice, the injustice as was found, for my client. This expedient which unquestionably has been adopted as the two sets of reasons we speak – unquestionably has been adopted in an earnest attempt to do justice, in our submission, have miscarried.

They miscarried because at the beginning they are rooted in this fallacy concerning the nature of a cause of action in negligence. It is a complete and indivisible question – has the defendant been negligent? True, the parties join issue by the plaintiff saying, I am going to show you were negligent because of X, Y and Z. That never prevents the defendant from saying, I have got something else.

KIEFEL J: This question only arises because the action was framed in a particular way when the question came before the court. But if one says that the plaintiff’s right of action is the action as detailed and pleaded by the plaintiff, if the plaintiff had come to the court without this particular of negligence, do you say the question still arises?

MR WALKER: Absolutely. Because, in answer to anything – if the plaintiff said, for example, I should not have been left to work alone, we could answer that by the training which talks about the need not to lift certain boxes unless you have help. In other words, you can work alone but you must not lift on your own certain size boxes. That is, in our submission, a demonstration that the plaintiff does not preclude the nature of the defendant’s answer to an allegation of negligence. In our submission, in particular, the plaintiff had never, as it were, removed from relevance as a complete answer, a kind of conduct which forms no part of the plaintiff’s case.

KIEFEL J: If the undertaking had said the respondent undertakes not to litigate, claim, plead or defend – claim or plead any allegation or defend a contrary assertion – that would overcome your prejudice. Is that what it comes down to?

MR WALKER: If there was an admission imposed that our training was adequate, then there will be a very unfortunately semantic argument about whether adequate training is an automatic answer so that we have to win.

KIEFEL J: So the question is really a quite confined one. The prejudice is simply that you may wish to assert but she may be in a position to respond.

MR WALKER: Certainly the terms of the undertaking do not, as we read it - - -

KIEFEL J: That is the prejudice, is it not? Is it any more than that?

MR WALKER: That is the prejudice that the court found existed and found did constitute an injustice, but they went on to find that that can be removed by this undertaking but it plainly is not. The defect of reasoning, as I say, is to regard a plaintiff’s allegation as matching entirely the position of a defendant which is never true with a negligence action – never true – in terms of particulars of negligence.

It is for those reasons, in our submission, that when you come to [17] the unfortunate expression is used of the plaintiff having “now defined the right of action she wishes to litigate”. Her right of action is one of negligence, but that gives rise to practical concerns which are such as to raise policy difficulties of general importance concerning this expedient.

What is the court’s power to commit an amendment, for example? We have raised this in our written submissions. That is left entirely obscure and presents real difficulties in relation to the balance of justice in such a case. How can that be foreclosed by this kind of undertaking? If it is not foreclosed, in our submission, then it cannot be said that this is the kind of undertaking that removes the prejudice which the court had found constituted, unalleviated, an injustice. Next, what happens in relation to what I will call onus questions?

GAGELER J: Mr Walker, your real complaint, as I am hearing it, is at page 34 - - -

MR WALKER: Yes.

GAGELER J: - - - paragraph [50], second sentence.

MR WALKER: Yes.

GAGELER J: The court was wrong in finding that:

The relevant prejudice related to only one aspect of - - -

the claim.

MR WALKER: Yes. Conceptually, they are wrong to say that a claim can ever be broken up by saying, this is my right of action for inadequate training, this is my different right of action for allowing working alone, this is my different cause of action or whatever else it is, unstable footing, or whatever it may be. The statute does not speak in terms which permit any such fallacious concept to operate. It is precisely because the plaintiff’s cause of action being negligence – failure to take regular care – the defendant is at full liberty to point to anything, not just – not constrained by the way the plaintiff complains but can point to anything else in the circumstances and this conduct which justifies it having done what it did, or not having done other things, and thereby achieving a reasonable standard of care.

The court by these steps in reasoning actually contemplates that we will not be able to prove the adequacy of training and does not, in particular by its undertaking, address the question whether or not the plaintiff will be able to point to the feebleness of the evidence brought about by the lapse of time which is the injustice which affects us. That, in our submission, is a pointer to the fact that there is something generally important transcending the quiddities of this case that justifies a grant of special leave.

It is rooted in the conceptual difficulty of this fallacious notion of filleted causes of action in negligence and it is rooted in the conceptual problem that the plaintiff, as it were, defines the field of history that a defendant may address in order to justify themselves against a claim of negligence, and, of course, for the reasons I have put, it thereby produces an expedient – an undertaking – which does nothing to meet our problem. May it please the Court?

KIEFEL J: Yes, Mr Sofronoff.

MR SOFRONOFF: In our submission, this is a case that does not raise any point of general importance but turns upon its own facts. The applicant’s real complaint is that the Court of Appeal got it wrong because the prejudice was not in fact removed by the requirement for the undertaking as a condition of an extension of time.

There is no point of general importance for this reason, in our submissions. We speak of causes of action. That is a term that echoes the existence of forms of action. When there were forms of action, they were divided strictly into real, personal and mixed. A form of action connoted or, rather, required a particular writ to be issued in respect of that form of action. That was a strict division of particular writs which were commands by the sovereign to bring a person to court.

It implied a choice of jurisdiction – not every court had jurisdiction over everything. It rendered the form in which the defendant was brought to the court different. It rendered the form in which a defendant could plead differently in a assumpsit and in debt you could plead not indebted. In trespass, you could plead not guilty and it affected the form of trial and the form of judgment and the form of execution.

The Judicature Act, in our submission, changed that so that the forms of action were swept away and instead there was one writ issued in the High Court of Justice in which you no longer pleaded in the words imputed to you by the forms of action but simply pleaded the facts. In pleading the facts, you then imply that the law gave you a remedy in respect of those facts having been proved. Consequently, what one pleads now is not a cause of action but, rather, a set of facts which constitute acts or omissions.

GAGELER J: You do not plead a form of act. You do not plead a form of action.

MR SOFRONOFF: That is right.

GAGELER J: But the collection of facts on which you rely constitutes your cause of action.

MR SOFRONOFF: Yes, the facts which give rise to a legal obligation which the Court will declare. It is common to plead facts which, by two or more strands of reasoning, give rise to the remedy that is sought. One can elect not to plead a particular strand of facts if to do so might provoke a defendant to take a libation point or some other kind of point. In this case,

if your Honours would go to page 43 of the record, at paragraph [19], in the second sentence, Justice Applegarth said:

It was necessary for her to identify the cause of action or causes of action she intended to pursue –

We would respectfully submit that that might have been phrased in this way – it was necessary for her to plead the actual facts which she contended gave rise to a right. If your Honours would go to page 62, you will see section 31 of the Limitation of Actions Act and 31(1) speaks of:

This section applies to actions –

That is, not causes of actions but actions. By that is meant proceeding and the current rules of the Supreme Court of Queensland do not speak of actions, it speaks of proceedings commenced by claim. So the word “action” or “proceeding” means the same thing, it means the process by which you are litigating. Subsection (2):

Where on application to a court by a person claiming to have a right of action –

That is, a right to a remedy based upon a set of facts. Now, what the court did here was to conclude, if your Honours would go back to page 42. At the top of the page, paragraphs [6] and [7], the court concluded that she, by offering the undertaking:

the adequacy or otherwise of the training or instruction will not be placed in issue by her. The case may proceed to trial on the basis that she received adequate training –

One question will be whether in those and all the other circumstances there was a breach of duty for her to be required to work on her own, and similar in respect of the other bases upon which damages are sought. Now, they might have been wrong about that but, in our submission, it is perfectly orthodox to identify the bases upon which it said damages are recoverable, there being alternative bases, to invite a plaintiff applicant to abandon one of those bases if it said that basis would cause a prejudice, that being removed. If they are wrong about that, it is facts case that does not involve any point of principle to warrant special leave. Those are our submissions, your Honour.

KIEFEL J: Anything in reply, Mr Walker?

MR WALKER: Just briefly, on that page 42, in paragraphs [7] and [9], what emerges beyond any doubt is that there is, as is there said, actual and

presumptive prejudice, and that the court had in mind that there may be an assumption of the receipt of adequate training.

In our submission, that is a wholly unsatisfactory state of affairs in terms of the court discharging the judicial function of addressing prejudice and seeking by adequate reasons to explain how the expedient they favour is such as to remove the prejudice. There is no room and neither can the undertaking nor any order under section 31 impose adjudication by assumption. There is no undertaking to give an admission and it is for those reasons, in our submission, that not only in this case but in all cases in which this kind of expedient may be assayed, there is raised the important points that we have put in-chief. May it please the Court.

KIEFEL J: In our view, this matter raises no question of principle which would warrant the grant of special leave. Special leave is refused with costs.

MR WALKER: If it please the Court.

AT 11.07 AM THE MATTER WAS CONCLUDED