Abalos v Australian Postal Commission

[1990] HCATrans 222

A -!)1,~USTRALIA11~ -...,..~~~ .... ,

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S56 of 1990

B e t w e e n -

MARIA VIRGINIA ABALOS

Appellant

and

AUSTRALIAN POSTAL COMMISSION

Respondent

Summons for directions

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Abalos(2) 1 12/9/90

AT SYDNEY ON WEDNESDAY, 12 SEPTEMBER 1990, AT 10.16 AM

Copyright in the High Court of Australia

MR BENNETT, QC: If Your Honour pleases, I appear with my

learned friend, MR P. JONES, for the applicant in

the summons who is the respondent to the appeal.

(instructed by the Australian Government Solicitor)

MR D.F. JACKSON, QC:  Your Honour, I appear with my learned

friend, MR A. BARRIE, for the respondent to the

summons, the appellant in the appeal. (instructed

by Messrs Steve Masselos & Co.)

HER HONOUR:  Mr Bennett, you are really the moving party as

it were.

MR BENNETT:  Yes, Your Honour. Really the matter sought in

paragraph 1 of the summons is what the application

is really about, because the parties are not very

far apart in what they wish to do. The problem

arises out of an absence of knowledge of what is

going to happen.

The problem arises in this way: the special

leave to appeal has been granted in a case which is

substantially a Warren v Coombes case. The trial

judge found for the plaintiff on a fairly narrow

issue. There was an appeal which raised many

aspects of that issue as I will demonstrate in a

moment, and the Court of Appeal - - -

HER HONOUR: That was your appeal?

MR BENNETT:  Yes. And the Court of Appeal allowed it on one

narrow basis.	My learned friend seeks to attack
that basis and obtain special leave to do so.	The
problem which arises is the extent to which we

should be permitted to support the decision of the

Court of Appeal on the other grounds which were not decided by the Court of Appeal although argued

before it, and that is the problem in today's

motion.

Our attitude, subject to one matter which I

will mention in a moment, is that we are content to	do what the respondent wishes us to do, which is to
argue the whole of our notice of contention on the
appeal. We understand the Court may have some
difficulty with that. It would certainly involve
considerably longer appeal books than exist at the
moment. The alternative - - -

HER HONOUR:	That would be in essence, if your notice of contention is as I read it, an argument about some
factual findings, would it not?

MR BENNETT:  Yes, it would, Your Honour. But may I just

proceed to put the alternatives which we put before

the Court?

Abalos(2) 2 12/9/90

HER HONOUR:	Yes.
MR BENNETT:	The second alternative is for my friend to be

limited to the Warren v Coombes point and me to be

limited to answering it. When I say my friend to

be limited that does not limit him because that is

his appeal, but for me to be limited merely to

answering his point and no more.

The third possibility and the one which we

would readily accept, would be that we be permitted

to raise one matter in response to my friend's

appeal, and that the balance if necessary go back

to the Court of Appeal. And I will show

Your Honour in a moment how that very limited

matter arises and how it relates to the

Warren v Coombes point.

HER HONOUR:  When you talk about the Warren v Coombes point,

do you mean by that the question whether the Court

of Appeal should have done what it did, or do you

mean to include in it what, in fact, the Court of

Appeal did?

MR BENNETT:	Both, Your Honour, but only on the basis on which it acted which I understand to be my friend's
appeal.

Any of those three - - -

HER HONOUR:  I am sorry, I interrupted you. You were going

to tell me what the one point was.

MR BENNETT:  Your Honour, might I just defer that for a

moment until I finish the outline?

HER HONOUR:	Yes.
MR. BENNETT:	Any of those three would not greatly distress

us. What would distress us is the fourth

possibility which would have occurred without this

motion, or may have occurred without this motion,

and that is our having to prepare the whole of the

notice of contention and then being told on the
hearing of the appeal that we would not be
permitted to argue it. And the reason we brought

the matter on is what we regard as most important

is that we should know on which basis the appeal

will be conducted before the hearing.

HER HONOUR:	Yes, I follow that.
MR BENNETT:	Now, I should explain the one point, and might

I do that by handing up to Your Honour a document

entitled, "Respondent's submissions on notice of

motion"? It is slightly euphemistic because it

only deals with the one aspect, but the purpose of

Abalos(2) 3 12/9/90

this document is to explain what the one small

point is which we do wish to be entitled to argue

in any event.

The trial judge found first that the coding

operations caused the injury; secondly, that

supervision and training could have avoided the

injury, and therefore a finding on causation that

the absence of supervision and training caused the

injury. Now, each of those is intended to be

disputed by our notice of contention, and as I will

show Your Honour in a moment, that would involve a

considerable volume of factual material.

The trial judge - and we have summarized very

briefly what the trial judge found on relation to

foreseeability - she said that but for

Professor Ferguson she would not have

foreseeability at all in relation to the absence of

supervision and training. But he told the

respondent some years ago, she found, that the

coding system would cause injury - and that is a

factual matter which is challenged - therefore, it

was foreseeable by us that the system would cause

injury. The missing link, of course, when it is

put that way is whether it was foreseeable, not

that the system would cause injury, but that the

absence of training and supervision would cause

injury, and that is the point I have made in (c)(i)

over the page.

Now, that missing link - in other words, if

one establishes two things: one establishes that

the operation caused the injury and that is

foreseeable; and one establishes that the training

and supervision would have avoided it, in order to

succeed on a negligence count based on the absence

of training and supervision, one must prove that it
was foreseeable that the absence of that would

cause injury. That involves two propositions:

2 ( a) - The first is it was ·foreseeable that in the

absence of training and supervision injury may
occur - and that we take it to have been found.

But (b) - that it was foreseeable that with

training and supervision injury would probably not

occur. And that again is the synthesizing down of the missing link which we rely on in the Court of

Appeal.

Now, the trial judge held, as I have said in

paragraph 3, that Professor Ferguson's evidence on

foreseeability was sufficient to establish

foreseeability in respect of training and

supervision. The gap on which we relied was that

his evidence did not establish that it was

foreseeable that with training and supervision it

would not occur.

Abalos(2) 4 12/9/90

The way the Court of Appeal dealt with it is

referred to in paragraph 5. It found that the

trial judge confused foreseeability and causation

because it said that the evidence of Professor

Ferguson which Her Honour relied on to find

foreseeability destroyed the plaintiff's case on

causation, because what we say Professor Ferguson

said properly analysed is: he said, contrary to

the trial judge's findings, that the system was
absolutely dreadful. The system was, I think the

phrase he used was "appalling and inhumane", that

it was likely to cause injury, and that he gave

that advice and that it was not taken notice of and

so on. It was very strong evidence in that area.

But what the Court of Appeal said was he also said the system was so bad that no amount of

training and supervision would have cured it, and
therefore, the Court of Appeal said that destroyed

the case on causation.

Now, the appellant's point on that, as we

understand it from the special leave application,

is that the trial judge did not rely on

Professor Ferguson on causation at all.	What she
said was:	"On causation, for all these reasons I

find it. With foreseeability I would not find it.

I now look at Professor Ferguson and I find

foreseeability from him." So that is the

appellant's principal argument as we understand it,

that Professor Ferguson's evidence cannot be used

to negate causation because Her Honour did not rely

on it in relation to causation.

What we want to be able to submit, even if

everything else goes back to the Court of Appeal,

is set out in paragraph 7, and that is the short

point that Professor Ferguson does not establish

what I have called "the missing link", that it was

foreseeable that training and supervision would

reduce or eliminate the risk of injury.

HER HONOUR: Well, you would have to go beyond that, would

you not - you would have to go to "the point where

there was no evidence to establish", would you not,

to answer the appellant's claim?

MR BENNETT:  I do not need to for this reason, Your Honour,

that Her Honour made a finding which has never been

challenged as we understand it, that but for

Professor Ferguson there was no foreseeability.	So
either in Professor Ferguson my friend finds foreseeability of the type he needs, or he does
not.

HER HONOUR: Yes, thank you.

Abalos(2)	12/9/90
MR BENNETT:	Now, that argument is closely related to what I

have perhaps erroneously described as the

Warren v Coombes point. It is difficult to argue

without reference to it. It does not involve going

through any evidence except Professor Ferguson's

which is comparatively short and already

reproduced. So if Your Honour, after hearing my

learned friend, takes the view that the matters

raised on my notice of contention should not be

raised on the appeal, we ask that we be allowed to

raise this point alone.

Now, the final matter is I should put before

Your Honour what the other arguments are so

Your Honour can assess that.	We take a basically
neutral position in relation to that.	We are happy

to deal with it in the High Court. We are happy for it to go back to the Court of Appeal, but we

want to know - and it is really a matter for my

learned friend to persuade Your Honour as I

understand he seeks to do - that we should deal

with it all in the High Court.

Might I hand to Your Honour a copy of our

submissions before the Court of Appeal?

Your Honour, the paragraphs which indicate the

areas in contention are first paragraph 11 - that

is the establishment of causation, and in relation

to the employment and the right arm injury. That

involves really going to most of the evidence.

What we want to submit is that the ergonomic, factual and medical evidence makes the finding insupportable on a Warren v Coombes basis. And much of that is summarized in paragraphs 38 to 48 to which. Your Honour need not know.

HER HONOUR:	Ergonomic, medical and -
MR BENNETT:	Factual evidence. By factual I mean of the

plaintiff - evidence of the plaintiff herself. The

second is paragraph 14 - that does not go much

beyond Professor Ferguson. That is the question of

evidence that training and supervision would, as a

matter of causation, have averted the injury.

Paragraph 17 deals with foreseeability in relation

to supervision and training. That is getting

closer to the point which would need to be argued,

but for the reason I gave Your Honour, we probably

would not need to go beyond Professor Ferguson on

it. Paragraph 18 is the Wyong Council v Shirt

point. What we say is that bearing in mind the

slightness of the risk, the small number of coders

who have suffered the injury compared to the huge number employed, the number of years and the huge

amount of effort that is said to be required, there

is a question of reasonableness in relation to the

proportions.

Abalos(2) 6 12/9/90

Paragraph 25 is the next one. That deals with Professor Ferguson's evidence. What we say is that

when one looks at his evidence, he was dealing with

something completely different. He was dealing

with a condition called "telegrapher's cramp",

rather than the machines which we are concerned

about in this case, the RSI on the coding machines.

And we say Her Honour, with respect, was in error

in believing that he was dealing with the same
problem now being dealt with. That does not

involve a great deal of evidence, but it is a

factual finding.

The next one is paragraph 26. There was

evidence that Professor Ferguson wrote some

articles and reports in addition to articles, and

we say there was simply no evidence that they came

to the attention of the respondent. That is a no

evidence point.

Paragraphs 49 to 55 are credit matters, and we

appreciate that there is a very high onus on an

appellant who seeks to challenge a witness's credit

on appeal, but in this case we seek to do it. And

Your Honour will recall that the trial judge made

some adverse findings to the plaintiff in relation

to her credibility, and this goes a little further

than that.

Paragraphs 62 to 64 is a failure to admit. It

is a wrongful rejection of evidence point. We say

that there was a booklet which was useful in that

it showed the state of learning at various times
during the 70s, and for various reasons it was

admissible. That would involve having the booklet

reproduced - the booklet that was rejected - and

arguing its admissibility.

So those are all the matters which are

involved in the notice of contention. It is a

matter for Your Honour, as I say, whether they are

dealt with or not.	My submission is that if they
are not to be dealt with, the point reserved in the	submissions should be reserved to us, and in either
event, we should know before the appeal. May it
please the Court.

HER HONOUR:	Thank you, Mr Bennett. Yes, Mr Jackson.
MR JACKSON:	Your Honour, may I just say these things. In

essence, the approach which we take is that the case is one where many points were taken by the

respondent as defendant at first instance, and that

is something on which the trial judge observed. I

do not know if Your Honour has a copy of the record

that has been prepared, volumes I and II. That

appears at page 336, about line 22.

Abalos(2) 12/9/90

Your Honour, the case was largely decided in

favour of the respondent at first instance, and it

is right to say that our success was on a

relatively narrow ground. We do not now seek to

set aside the findings which were made against us,
and we simply say that the Court of Appeal was in
error in disregarding one of the findings made by
the trial judge.

Your Honour, could I interpolate one thing at this point, to say that it is described - and I

must say I use the expression as describing part of

our argument myself in the special leave

application, and I really would not like it to be

held against me as a Warren v Coombes point that

described one aspect of the case, and that it is

perhaps inaccurate or perhaps inexact description

does not really matter very much - but in any

event, Your Honour, the point is the one I am about

to outline now.

What we say in relation to that point - and I

will come to that in just a moment if I may - could

I go on to say that what we contend about the

present application is this: we contend that in

reality the other issues on which the respondent

seeks to have the matter go back to the Court of

Appeal are either substantially involved in the

appeal in any event, or would be likely to take

very little additional time. And what we submit is that the Court should have the option open to it of disposing of the matter finally.

Now, Your Honour, the - - -

HER HONOUR: Well, that is, in effect, the Court disposing

of the appeal by Mr Bennett's client to the Court

of Appeal, is it not?

MR JACKSON: Well, it is disposing of - Your Honour, it is

right to say that - or it is disposing of what

remains of that appeal to the Court of Appeal, if I

can put it that way, and what is in the end

pursued.

Now, Your Honour, could I seek to develop what

I was saying just a little because the case is not

one, in our submission, where so far as arguing so

much as might be relied on to support what was done

by the Court of Appeal is concerned, is really a
great horror story so far as the Court is concerned
in terms of the mechanics of dealing with it.

Now, as Your Honour has heard, the defendant succeeded on a large part of the case and in

particular on whether the plaintiff's injury was

caused by the design of the coding system at which

Abalos(2) 12/9/90

she worked, or by its maintenance. Could I

indicate to Your Honour where that is in the

at page 363, commencing at about line 14, and it	reasons for judgment of the primary judge? It is
goes through to page 365 to the end of the page. I
wonder if I might ask Your Honour to glance through
that. It is the heading on page 363, "Was the Defendant Negligent?", going through to page 365.

HER HONOUR: Will I continue past and continue to

"Maintenance"?

MR JACKSON:  No, Your Honour, I was going to say then that

the issue on which the plaintiff did succeed was

lack of supervision and training, and that starts

at the top of the next page, page 366 and goes
through pages 366, 367 and through to line 10 on

page 368.

Now, Your Honour will see particularly lines 1

to 10 on page 368 where the primary judge accepted

Mrs Archer's evidence, or the evidence in relation

to Mrs Archer which appears there, finding

particularly that had there been proper training

and supervision and so on.

Now, Your Honour, having done that, the judge

then went on to deal with the question of

foreseeability which commences on the same page at

the bottom of page 368, and in the course of her

discussion of the question, Your Honour will see at

page 369, lines 5 to 10, she makes a finding, in

effect, against us. And those findings which are,

in effect, against us on foreseeability go through

to page 371, about line 15. There is a reference

then at page 371, line 15, to Professor Ferguson's

evidence on the question of foreseeability. That
goes through and she discusses what he had done

through to page 374.

And, Your Honour, perhaps I should mention at

page 373, about line 7, that she makes a

provisional or tentative finding but then goes on

to deal with some more specific evidence which goes

through in the end to page 375 at the top of the

page. Now, Your Honour will see that only a narrow

area was the area on which we succeeded in effect,

most of the case being found the other way.

In the Court of Appeal - Your Honour, I really

will only take a minute with this - the

principal judgment was that of Mr Justice Meagher,

and could I take Your Honour to page 418, and from

about lines 13 to 21 His Honour set out the

question. And then at page 420 dealt with, at

about line 15 through to the bottom of the page and

going over to page 421, about line 5, His Honour

Abalos(2) 9 12/9/90

refers to the evidence of Professor Ferguson that

he relied upon.

Now, Your Honour, the point which we take in

the appeal is that it leaves out of account the

finding that was made at page 368, lines 1 to 10,

by the primary judge in relation to Mrs Archer's

evidence. And there is also nothing to suggest that

the primary judge accepted that part of

Professor Ferguson's evidence which was relied upon

by Mr Justice Meagher in the passage to which I

have referred, and was also relied on in a cognate

passage by Mr Justice Samuels at page 408,

lines 1 to 5.

Now, Your Honour, what follows from all that

is that the case on appeal is of a narrow kind.

Most of the case was decided against us, and we now

accept that. If one goes then to the issues that I

have set out in the notice of contention that

appears at page 429 - - -

HER HONOUR: That is, in summary form, the whole matter you

wish to argue on appeal?

MR JACKSON:	Yes, Your Honour.
HER HONOUR:	And the effect of that argument, if successful,

without the notice of contention, would be that the

matter must go back to the Court of Appeal?

MR JACKSON: Well, Your Honour, without the notice of

contention the result would be that the appeal

would succeed.

HER HONOUR:  But I do not follow that because you would

still have - the mere fact that you set aside the

order of the Court of Appeal would still leave on

foot a notice of appeal which had not in all

respects been dealt with.

MR JACKSON:  I am sorry, Your Honour. I was putting it

badly. What I was seeking to convey was this:

unless it were the case that the judgment in the

Court of Appeal was sought to be maintained on

other grounds, other than those on which we

succeed, the result would be that the appeal would

succeed, and the case not go back to the Court of

Appeal. But it being the position - - -

HER HONOUR:  You see that is the point that I have

difficulty on.

MR JACKSON: Well, Your Honour, I am sorry. I am simply

seeking to convey that if it were not the case that

the respondent sought to support the judgment of

· the Court of Appeal even if we succeed, then there

Abalos(2) 10 12/9/90

would be no impediment to the Court simply allowing

the appeal and that would be the end of the case.

But it being the fact that there is a notice of

contention we accept, Your Honour, that it is a matter for the Court to decide then whether the

Court will deal with the case itself or whether it

will remit it to the Court of Appeal for

consideration of the matters outstanding.	Now, the
point that I am seeking to make - - -

HER HONOUR:  Where we are not ad idem is that your grounds

of appeal would, if you put the notice of

contention to one side, at the most get the matter

remitted to the Court of Appeal for further hearing

and determination.

MR JACKSON: Well, with respect, Your Honour, it is a matter

of discretion for the Court because the desire to

have the matter go back to the Court of Appeal is

one that comes about by the respondent wanting to

have the issue -

HER HONOUR:  No, I do not think that is right. I think it

is a matter of natural justice. I do not think

there is any question of discretion at all,

Mr Jackson. If you accept that your argument in

its entirety that you summarized this morning and

that you say is the whole of your argument, it
leaves matters undetermined, matters before the

Court of Appeal that the Court of Appeal did not

determine.

MR JACKSON:  Yes, it does, Your Honour. But Your Honour

mentioned natural justice. The point I am seeking

to make about it is that that issue, or the issue

of which court should deal with those questions,

does not arise unless it appears that the

respondent wants to seek to maintain the judgment

in its favour on grounds other than those raised by

the appeal. That is the point I am seeking to

make, Your Honour, and really no more than that at

the moment. But the respondent having taken that

point, it can do it - the issue can be disposed of

in one of two ways~ The Court has power to deal

with the whole of the appeal, or it has power to

remit the case to the Court of Appeal. Now, Your

Honour, that comes about by section 37 of the

Judiciary Act which says that:

The High Court in the exercise of its

appellate jurisdiction may affirm, reverse or

modify the judgment appealed from, and may

give such judgment as ought to have been given

in the first instance and -

and I am omitting some words which are immaterial -

Abalos(2) 11 12/9/90

may remit the cause to the Court from which

the appeal was brought for the execution of

the judgment of the High Court -

and so on.	Your Honour, there is no question
about the Court's power, with respect.	The

question is the manner of its exercise. And the

point which I am seeking to deal with is the fact

that the issues which are sought to be raised by

the notice of contention are issues which are

either largely involved in dealing with the appeal, or issues which to the extent to which they are not

dealt with by the notice of appeal are ones on

which argument, one would expect, would be

relatively brief and could be disposed of by the

Court, with a consequent saving in time and money

to the parties. So, it is for that purpose that I

was going to the notice of contention.

HER HONOUR:	Yes, thank you.
MR JACKSON:	And, Your Honour, that appears at page 429.

Now, Your Honour will see, if I could go first to ground 8, which is at page 430. Now, Your Honour,

that seems to be essentially involved in the

appeal. That seems to be what the Court of Appeal

did.

Your Honour, grounds 2 and 4, one would have

thought, are grounds that are essentially involved

in the courts dealing with the appeal.

HER HONOUR: Well, that would not be obvious to me. It

might be obvious to people familiar with the case.

MR JACKSON: Well, Your Honour, "no reasonably practical

means established by the evidence of obviating the

risk of injury": now, unless it be that the finding

in relation to the evidence of Mrs Archer were set

aside then that ground, one would think, is one

which would depend on the resolution of the appeal.

Your Honour, if one goes to ground 4, unless

it be that the ground essentially means that a

finding of fact, not specifically referred to

there, is itself to be set aside, then, in our

submission, that is something that is involved in

relation to the appeal. Now, Your Honour, ground 7

and ground 1 turn on Professor Ferguson's evidence

and argument on them must necessarily be brief.

HER HONOUR:	I am sorry, I have not
MR JACKSON:	I am sorry, grounds 1 and 7, Your Honour.
HER HONOUR:	Ground 1, I suppose, by reason of the factual

matters, must turn on Professor Ferguson's - - -

Abalos(2)	12	12/9/90
MR JACKSON:	Yes, indeed, Your Honour.	Ground 7 is

simply - - -

HER HONOUR: Well, that must involve, must it not, a setting

aside of a finding as to what Professor Ferguson

did?

MR JACKSON:  Yes, I suppose so, Your Honour, from what has

been - - -

HER HONOUR:  Or does it go to the published articles?

MR JACKSON: Well, it is simply, one would think, as it is

put, a no evidence point, and one would simply have

to look at whether there was evidence on which such

a finding could be made. Now that, Your Honour,

really cannot take very long, one would think, in

relation to any of those three matters.	The
evidence is either there or it is not.	Your

Honour, I am sorry, what I was going to say then was that ground 5 seems to involve simply the

question whether a particular inference should be

drawn from proven facts and, Your Honour, that

leaves grounds 3 and 6 which are, in a sense, the wild cards, which, Your Honour, they may turn out

to be aces or jokers, but it is impossible, in our

submission, to envisage that argument on them would

really take very long, we would say.

So, Your Honour, that essentially is what we

wish to say. Could I say one other thing about it,

and it is this? Until my learned friend's argument

this morning we had understood the correspondence

to have the consequence that the course which we

would suggest would be the appropriate one was one

that was opposed, and I should just mention that in

passing. So, Your Honour, the reasonableness

inherent in our learned friend's argument has a

certain freshness about it. So, Your Honour, what
we would submit really is the case should simply

proceed and to the extent tp which it is thought

that further material is necessary, then we will

co-operate in doing whatever is necessary to have

that before the Court, but there should not be any

restriction placed on the argument before the Court

and we are happy co-operate in putting anything in

writing the Court may require.

HER HONOUR:  Yes, I understand that. Leaving aside

grounds 3 and 6, as it were, the books would

require no more than they presently contain?

MR JACKSON:  Not much more, Your Honour, I do not think.

Your Honour, as best one could imagine it, it might

perhaps require some exhibits that were not in the
books. Your Honour, we find it hard to imagine it

would require much more in any event.

Abalos(2) 13 12/9/90

HER HONOUR:	Do you agree with that, Mr Bennett?
MR BENNETT:	No, Your Honour.  I am not sure if my friend

has finished. We have - - -

HER HONOUR: Well, I have probably interrupted him.

MR JACKSON:  Your Honour, there is nothing more

substantially I have to say.

HER HONOUR:	Thank you.
MR BENNETT:	Your Honour, the only thing I want to say in

reply is really in answer to Your Honour's

question. We have difficulty with a splitting of the cross appeal, on the basis of the dividing up

grounds. I can give Your Honour a quick table of

cross reference between the numbers - - -

HER HONOUR:  Except that the point that you put in your

outline to me today does not seem to have a point

which precisely corresponds in the notice of

contention, and I am trying to measure up what

points of contention bear on ground 7, or

paragraph 7 in your document this morning.

MR BENNETT:  The nearest, Your Honour, would be ground 1, I

would think, but it certainly is not put with the

clarity that one would like.

HER HONOUR: Well, when you say then you oppose the

splitting up of the notice of contention you speak

with a forked tongue, I think, Mr Bennett.

MR BENNETT: Well, Your Honour, I would be content, if

Your Honour were minded to draw the line where I have suggested it be drawn in those submissions,

with a description of the matter as being so much
of the first ground of the notice of contention as

is explained in this document, in paragraph C7 of

that document, which is - - -

HER HONOUR:  But is not ground 2 so close to what you have

said?

MR BENNETT: Well, ground 2, I rather thought, went to the

overall reasonableness to the submission I referred

to about the risk being so small, numbers who were

not injured being so large, and the cost of

precautions being so great as to make it

unreasonable - - -

HER HONOUR: Well I must say I would not have read it that

way.

MR BENNETT: Yes. It is hard to break them up, Your Honour.

They are not put perhaps precisely the way I put

Abalos(2) 14 12/9/90

them. The correlation - if I could just give

Your Honour a quick table of which I have scribbled

out a few moments ago - and this is perhaps E&OE -

but paragraph 11 of the long document seems to be

grounds S(i) - - -

HER HONOUR: Sorry - paragraph 11 -

MR BENNETT:	Of the long document - the submissions before the Court of Appeal. Your Honour, of course, I
went through that identifying paragraph numbers which - - -
HER HONOUR:	Yes, well, but should we not work from the notice of contention which you filed in this Court?

MR BENNETT: Well, I suppose we should, Your Honour. It

is - - -

HER HONOUR:  Because I am quite sure that is what the Court

is going to work from, rather than your outline in

the Court of Appeal.

MR BENNETT:	Well, Your Honour, in that event, it is the - I would have thought the matter referred to in
paragraph 7 is part of ground 1. it certainly is
not a separate ground; it is included in ground 1,
but it can be isolated out.  The grounds which
would involve the most material are grounds S(i) and 6, which seem to be identical, although the
balance of ground 1 would involve some material.
Grounds 2 and 4 involve the unreasonableness issue
I referred to.
HER HONOUR:	You have said that before, in relation to

ground 2 - I see it in ground 4, I certainly

thought ground 2 raised - unless confined to the

effect of Professor Ferguson's evidence, that it

must have raised some other issue.

MR BENNETT:  Yea.

HER HONOUR:  I mean, if it is confined it seems to be a very

narrow point, although it does not read as though

it is so confined.

MR BENNETT: It goes, I suppose, in a sense, to causation,

because it really says, "training and supervision

would not have obviated it", it is the causation in

relation to training and supervision, rather than

the foreseeability in relation to training and

supervision. But 2 and 4 certainly seem to be

related. It may be that 2 is a little wider for the reasons Your Honour gives. Ground 7, which

is 25 and 26 of the other document, is certainly

fairly narrow; I accept that. And S(ii) and 3 -

they seem to be similar and they go to the other

Abalos(2) 15 12/9/90

part of it, that if there had been precautions,

they would not have been effective in the

particular case. It is again causation, but

causation tied to the supervision. Your Honour, if.

something is to be separated, I submit it would be

easier to do it in the order by reference to either

paragraph 7 of these submission, or a taking of

paragraph 7 out of them and defining so much of the
notice as raises that point as being the matter
which can be separated, because that point is, of
course, a very short one and it really does arise
directly out of the way my friend puts his case.

It, genuinely, whereas the others do not, involves supporting what the Court of Appeal did

rather than other grounds on which we might have

done it. That is the difference between it and the

other points. But, Your Honour, as we see it, it

would be necessary to have further books printed,

but, of course, that can be done if necessary, and

we are content to do that.

HER HONOUR:  If one sets out, on your view, some of 2, 3,

S(ii), go to causation and extend beyond the

evidence of Professor Ferguson.

MR BENNETT:	Oh yes, Your Honour, yes.
HER HONOUR:	And perhaps some of 1.
MR BENNETT:	1, I think, relates more to foreseeability.
HER HONOUR:	Yes.
MR BENNETT:	But it must extend past Ferguson, yes. I

suppose, I say that with this qualification; when

my learned friend indicated he accepted the trial

judge's findings, I am not quite sure if he was

accepting the finding on page 371, lines 14 to 16 -

if my friend accepts that finding, of course, that

shortens it considerably.	I am not quite clear
that he does.

MR JACKSON:	Your Honour, we accept that.
HER HONOUR:	Yes.
MR BENNETT:	So that limits the foreseeability aspect. So

the foreseeability material is - - -

HER HONOUR:  So that limits ground 1 - confines ground 1 to

Professor Ferguson's material - - -

MR BENNETT:	Yes, Your Honour
HER HONOUR:	- - - and it confines ground 2 - - -

Abalos(2) 16 12/9/90

MR BENNETT:	No, ground 2 is causation.
HER HONOUR:	Oh, sorry, yes.
MR BENNETT;	3 is causation; 4, really seems to be

causation, although it involves - 5 is certainly

causation, 6 is causation - I just would be a

little concerned if the division were defined in

terms of foreseeability and causation. That may

well involve dangers - - -

HER HONOUR: Yes, I understand that. I can well understand

why you may be concerned with doing it on the

notice of contention as filed.

MR BENNETT:  Yes, that is so, Your Honour. Yes, those are

my submissions.

HER HONOUR:  Mr Jackson, I did interrupt you, if you have

any - - -

MR JACKSON:  Your Honour, there is nothing further I want to

say.

HER HONOUR:  I think in view of the possibility that other

issues than that directly raised by the Court of

Appeal's decision may be involved in grounds 1 to 8

of the notice of contention, that the respondent

should be confined in the argument in this Court to

arguing so much of ground 1 in the notice of
contention as raises the issue whether it was
foreseeable that training and supervision would
reduce or eliminate risk of injury, that being the

matter set out in paragraph 7 of the respondent's

submissions on notice of motion filed in this Court

today. I do not think I need to say anything

further on that, but on costs - nobody has

addressed me on that. I would be inclined to think

there should be costs in the appeal.

MR BENNETT:  Perhaps reserved to the appeal, rather than

costs in the appeal in case there is - it may be

that we would want to submit on the appeal that

these costs should abide the result in the Court of

Appeal if the matter goes back. It leaves it more

open to the court if it is done that way but it is

a matter for Your Honour.

HER HONOUR:	But what invariably happens is that it passes outside the minds of everyone concerned and is
lost.
MR BENNETT:	Your Honour, we are content with costs in the

appeal?

HER HONOUR: Yes. Mr Jackson.

Abalos(2)	17	12/9/90
MR JACKSON:	Yes, Your Honour.	I am not sure if Your Honour

has to certify for two counsel?

HER HONOUR:  I do, I think, yes. Well, I certify for two

counsel and make it costs in the appeal.

MR BENNETT: If Your Honour pleases.

HER HONOUR:  Is there anything else that follows from that?

It does mean, of course, that the inevitable result
is that if Mr Jackson's client is correct, it must

go back to the Court of Appeal.

MR JACKSON:	Yes.
HER HONOUR:	Yes.  So long as that is understood.

AT 11.10 AM THE MATTER WAS ADJOURNED SINE DIE

Abalos(2) 18 12/9/90