Andar Transport Pty Ltd v Brambles Ltd

[2003] HCATrans 450

[2003] HCATrans 450

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M214 of 2003

B e t w e e n -

ANDAR TRANSPORT PTY LTD

Appellant

and

BRAMBLES LIMITED

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON TUESDAY, 4 NOVEMBER 2003, AT 10.17 AM

(Continued from 3/11/03)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours, may I just say something more about the first issue in the matter, and it is this.  What is necessary for the party claiming contribution to show is that if the plaintiff had sued the party against whom contribution is claimed the plaintiff would have succeeded.  That is not a question to be answered in the abstract simply by reference to, on the one hand, the existence of the employer/employee relationship and, on the other, a duty arising in consequence of that.  Rather, in our submission, it is to be answered by looking at the circumstances of the particular case, that is this employee suing this employer.

CALLINAN J:   Mr Jackson, the rule, or the principle, in Lister v Romford Ice, has that been legislated about in Victoria at all?

MR JACKSON:   No, your Honour, no.

CALLINAN J:   I think it may have been in New South Wales.

MR JACKSON:   Yes.

McHUGH J:   Yes, it has in New South Wales.

CALLINAN J:   So why would not the application of that principle be a complete answer to Mr Wail’s claim against Andar, if he had made one?

MR JACKSON:   Your Honour, it could be.  It would depend of course on the circumstances.

CALLINAN J:   In the circumstances of this case.

MR JACKSON:   Your Honour, that is in a sense what I am about to say, although I would put it perhaps slightly differently.

CALLINAN J:   But approaching it from that viewpoint, is that a possible view or the right view?

MR JACKSON:   If it be - and your Honour, could I put it this way - if one had a situation where the obligation is that of the employee and it is the breach of that obligation that brings about the liability or potential liability to the employee, then one can put it in a number of ways.  One is to say indemnity.  One is to say that if one looks at, to use the expression that Justice Brennan picked up in Nicol, that it was the employee’s fault, any relevant fault was that of the employee.  Another way is to say that a person cannot profit from the person’s own wrongdoing.  There are several ways of describing it.

CALLINAN J:   Mr Jackson, there were two directors at one stage, is that right?

MR JACKSON:   Yes, two.

CALLINAN J:   Was there evidence about the other director, what role - was it a man or a woman?

MR JACKSON:   A man, it was Mr Parker.

CALLINAN J:   And what was his role?

MR JACKSON:   To do the books.

CALLINAN J:   To do the books.

MR JACKSON:   Yes.

CALLINAN J:   And that was the evidence.

MR JACKSON:   Yes.  It is a little stronger than that actually, your Honour, because there are some findings about these aspects I was just about to take your Honours to.

McHUGH J:   The difficulty with you relying on Lister v Romford Ice is that that was a case of vicarious liability.  The allegation here is a breach of the employer’s personal duty of care.

MR JACKSON:   Your Honour, that is in a sense what I am about to come to.  Why I said a moment ago that the question is to be answered not in the abstract by saying there is a duty and therefore there is a breach if there is injury in a sense, but what one has to do is to look at the circumstances of the particular case.  Your Honours, what I was getting to is this.  If one looks at this case, there are factual findings relating to the actual control of the company as between the directors.

HAYNE J:   But what does that matter?

MR JACKSON:   It matters, your Honour, because of this.  What you have is a circumstance where there is a two‑man company.  In relation to the two‑man company, what is the agreement between them, as it were, is that one of them is responsible for looking to matters such as establishing a safe system of work, the responsibility for taking reasonable care.  That person does not perform that obligation.  That person is injured because that person has not performed that obligation and in those circumstances, in our submission, the case is simply one where - one can put it in a number of ways - but the person is simply seeking to obtain damages in respect of injuries suffered by a breach for which that person was responsible.  Now, one can say so too was the company, but at the same time the liability, one to the other is the same, in our submission.  One can describe it also by way of circuity of action.

GUMMOW J:   Well, responsible in what sense, responsible factually?

MR JACKSON:   Yes, your Honour.  First of all factually, and then the question is does one translate that into legal responsibility or absence of legal responsibility, and the answer, in our submission, in a case of this kind, yes.  Your Honours, may I seek to develop that just a little because it does involve some facts ‑ ‑ ‑

KIRBY J:   Just before you go on, I know you are very keen to go on with what you have there.  On Justice Callinan’s question, has this Court ever accepted Lister v Romford Ice?  I think there was a case, was there not?  It was quite a controversial case in England.

MR JACKSON:   Your Honour, Lister v Romford Ice, there is no doubt about the controversy about it.

KIRBY J:   I realise statute has now, as it were, in New South Wales accepted it, but in Victoria not.  Is it the common law of Australia, just in case we have to come to it?

MR JACKSON:   In our submission it is, your Honour.  Perhaps if I could give your Honours a note about what cases have been ‑ ‑ ‑

KIRBY J:   Yes, if you would.

MR JACKSON:    ‑ ‑ ‑referred to in this Court.  I think there are some words being referred to at least.

KIRBY J:   Just before you move on, one other point is concerning me.  You remember in that case recently in this Court concerning the couriers, Justice McHugh wrote a slightly different judgment in which he referred to some earlier views of his concerning the operation of vicarious liability in the context of independent contractors.  I am not sure whether that is relevant in this case or whether it goes, for example, to what is just and equitable, because here as I understand it Mr Wail was in a truck which was decorated with Brambles’ colours.  But at some stage if you would send in a note about the relevance of Justice McHugh’s view, because I think his Honour was of a view that one should consider expanding notions of vicarious liability, and I have some sympathy for that.

MR JACKSON:   Yes.  Hollis v Vabu I think is the case.

McHUGH J:   Yes, Hollis.

KIRBY J:   That is the one, and it referred to earlier authority than his Honour’s ‑ ‑ ‑

HAYNE J:   Is vicarious liability any part of your case in any way in which it is put?

MR JACKSON:   No, your Honour.

HAYNE J:   Is it any part of the other side’s case as you understand it?

MR JACKSON:   I do not think so, your Honour, no.

KIRBY J:   If there is vicarious liability it may be relevant to what is just and equitable.

MR JACKSON:   Your Honour, I will endeavour to respond to what your Honour has asked me to do.  Your Honours, what I was going to say was that if one is looking for a moment at the circumstances of this case, and I will do it as briefly as I can, there are factual findings relating to the actual control of the company as between its directors.  Can I take your Honours - and I will do so very briefly - to the primary judge’s reasons at page 181.  Now, your Honours will see, if I could go to line 20 on page 181, that his Honour said:

The problem with the control test in this case is created by the fact that the Plaintiff was effectively solely responsible for the affairs of the Company.

Then a little further down the same page, around line 27, his Honour said:

The fact is however, on the evidence before me, that any decision of the Third Party is in reality a decision of the Plaintiff.

GUMMOW J:   What does “in reality” mean?

MR JACKSON:   Your Honour, I do not mean to be offensive, but he means that if one looks at the circumstances of the case decisions on this aspect, namely anything to do with the actual trucking, are those made on behalf of the company by the plaintiff.

HAYNE J:   That is always going to be the case when you have a worker off site doing something.  What is the legal relevance of this set of findings that you say arises?

MR JACKSON:   Well, the legal relevance is this, your Honour, that one has the plaintiff suing the company for something that the company has not done.

HAYNE J:   Namely, what?  What is the breach alleged against Andar?

MR JACKSON:   The breach alleged against Andar, your Honour, one has to go back to the third party claim essentially to see that.  Your Honours will find that at page 21.  In paragraph 5 at line 15 your Honours will see there the particulars of the claim set out at the bottom of page 21 and the top of page 22.

HAYNE J:   One of which is fail to provide a safe system.

MR JACKSON:   Yes.

HAYNE J:   Particular (i) at page 22.

MR JACKSON:   Yes.  Your Honours, some of them appear to be relevantly ridiculous in a sense, but leaving that aside, so it is failing to provide a safe system.  Now, undoubtedly, your Honour, the obligation to provide the safe system is an obligation of the company.  The company is obliged to take reasonable care to provide that safe system.  In determining how to provide the safe system, what the company does is that one of the directors of the company is the person who is, so far as the company is concerned, the person responsible for taking the steps in that regard.  Now, your Honour, I say so far as the company is concerned.  The company has to act by human beings, and the person to whom the company has allocated that responsibility is the plaintiff.

HAYNE J:   Now, this has come out of a stream of authority in England - true it is about breach of statutory duty, but let us leave that complication aside - it seems to come out of a stream of cases concerned with disobedience, where the company says to a worker, “The system you will follow is X” and the worker disobeys the instruction and is injured.  Hence the references in Lord Reid’s statements quoted by Justice Brennan in Nicol at 620:

an employer, put in breach of a statute by the disobedience of his servant ‑

Now, is there a distinction to be drawn between the case of disobedience, “The system to follow is X” and the worker does not, and the case where the obligation to provide a safe system of work, true it is the employer says to employee, “You go out and devise the safe system”.  Its not devised worker who was told to devise it is injured.  Have we not taken a turn in the reasoning?

MR JACKSON:   Your Honour, when one speaks of disobedience in the cases that your Honour is referring to, what appears, in our submission, is that the disobedience, if one is speaking about the breach of statutory duty cases, is disobedience to the statute.  That is the disobedience that is being spoken of in those cases.

HAYNE J:   I thought not in at least Ross v Associated Portland [1964] 1 WLR, particularly at 779 and thereabouts, I think.

MR JACKSON:   Your Honour, I exclude the cases of disobedience to an instruction, but in the end in the statutory duty cases the liability of the employer is a liability which has been brought about in a sense by the failure of the employee to perform the obligation provided for by the statute, thus giving rise to a liability in the employer, sometimes in liability in both.

HAYNE J:   I can understand the causation argument being employed in connection with a case where the employer says, “The system you must follow is this” and the employee in breach of that instruction does something else; then I can understand an analysis in causation terms.  What I have difficulty with is analysing the present case in causation terms unless you pursue the mirage of the single cause.

MR JACKSON:   Your Honour, could I say one does have to appreciate that the plaintiff in this case was not just an employee.  He was a director as well.  So that one is not looking simply at someone whose obligations arise from the position that the employee holds as employee with directions and so on being given to him.  What you have is a company where, so far as the highest levels of direction of the company are concerned, there are two people.  Could I pause to say, your Honours, these days there might only be
one, because you only need to have one director in a company now.

KIRBY J:   You are wanting to look at the facts.  The legal categories, as Justice Dawson suggests, are different.  He had a capacity as an employee and he had a capacity as a director, and you just have to analyse it in different terms in respect of his different capacities and the company’s liability, as something different from himself.  Conceptually, that appears to be unarguable.

MR JACKSON:   Your Honour, one accepts that there are different duties, but if one is looking to see - one really cannot, with respect, depart altogether from the facts because what one has is a circumstance where the, as the primary judge held, insofar as it is possible to do so as between the two directors of the company, one of them was responsible for the books as it were, paying the wages; the other was responsible for the actual work and insofar as the company was concerned, of its two directors one had a duty to the company, the duty to the company being to take the steps necessary to provide reasonably a safe system of work.

GLEESON CJ:   I am not suggesting anything necessarily turns on this, but how many issued shares were there in the capital of the company?

MR JACKSON:   I think there were only two, your Honour.

GLEESON CJ:   Parker owned one, and your client, Wail, the other?

MR JACKSON:   Yes.

GLEESON CJ:   Did Parker own his share on trust for Wail?

MR JACKSON:   No, your Honour, no.

GLEESON CJ:   So they split the profits 50:50?

MR JACKSON:   Yes, your Honour.

KIRBY J:   I thought I read that they had other employees.

MR JACKSON:   They had one other truck.

KIRBY J:   But the company had other employees?

MR JACKSON:   It employed occasionally a relief driver and someone else to drive the other truck.

KIRBY J:   The problem is once you force people from the realm of employment into this realm of independent contractors they sometimes take on grand ideas that they are in truth an independent contractor entitled to employ others with an independent legal personality.

MR JACKSON:   Your Honour, I do not suggest for a moment that if someone other than Mr Wail had sued - some other employee had sued, this issue would not arise.

KIRBY J:   It may be that the statute so far as we are in the business of considering the statute, cuts the Gordian knot and just says, “Well, don’t worry about the legal categories.  Look at the facts of what is just and equitable and take a broad view”.  I do not know.  There must be authority on that.

MR JACKSON:   That is the next point I am coming to, your Honour.  May I conclude what I was endeavouring to say on this point.  I have taken your Honours to page 181 and to lines 21 and 27.  Could I refer also to the last couple of lines on the page, where the judge said:

it is in one sense true to say that it is the Plaintiff who controls the Third Party, rather than the other way around.

Perhaps I should give your Honours a reference to where there was a part in the evidence showing directly what the functions of the two were.  Your Honours will see that at the bottom of page 113 to the top of page 114.  In short, Parker does the wages.  Wail looked after the trucking.

I have already given your Honours a general reference to page 182, and the paragraph in the middle of the page.  Could I mention two particular references.  One is about line 10, where his Honour says:

The evidence establishes that it is the Plaintiff who has the actual task of conducting the affairs of the Company.  It is the Plaintiff who has the effective control of the activities of the Third Party.

And at page 183, line 24, your Honours will see that his Honour said, in the circumstances of this case:

It was the Plaintiff who in fact knew the system and as director of the company informed the company as to the system and equipment.

When he is speaking of the company, he is speaking of the appellant.

KIRBY J:   What was that second reference that you were just reading?

MR JACKSON:   Page 183, line 24, your Honour.

KIRBY J:   Thank you.

MR JACKSON:   Your Honours, his Honour also found, at page 184, line 15, that:

in this case there is no basis for finding that any servant or agent of the Third party (other than the Plaintiff himself), by negligence caused or contributed to the injury to the Plaintiff.

His Honour is speaking factually I think.  He found also on the same page at line 29 that no evidence could be pointed out which showed that the appellant was guilty of negligence or breach of duty over and above or in any way different from what was found to be the contributory negligence of the plaintiff.

So the situation which obtained was that the plaintiff had actual control of that aspect of the company’s activities.  He was the person who was responsible for ensuring that the company did take reasonable care to provide a safe system of work, but he failed to do so and he was himself injured in consequence of that failure.

Your Honours, that is what, in our submission, the situation to which Justice Brennan was adverting in Nicol 163 CLR at page 620.  At the top of that page where, in the fourth line - and I interpolate - his Honour of course was there speaking in the context of breach of statutory duty, but as your Honours have seen at page 621 about point 2, he said that was apposite also to common law negligence.  Returning to page 620, his Honour said:

These are cases where the employee was solely responsible for the failure to perform the duty and was therefore “the sole author of his own wrong” ‑

Your Honours will see he adverted then to the “Whose fault was it?” test in the first quotation.  Then after the quotations his Honour goes on to say:

But if the employer has failed in some respect to do everything which the employer could reasonably be expected to do to prevent the breach which caused a plaintiff’s injury, the employer does not escape liability.

Then his Honour quoted from Chief Justice Herron a few lines further down:

“[i]t must be established that the breach by the plaintiff is the sole Cause and not merely a cause of the accident”.

HAYNE J:   Now, just pausing at that first sentence after the quote from Lord Reid, “But if the employer has failed in some respect”, do I understand your position to be that Andar, the employer, could not reasonably have been expected to do more to prevent the breach than to delegate the task, or to give the task, to Wail?

MR JACKSON:   Yes, your Honour.

HAYNE J:   Why should that conclusion be reached?

MR JACKSON:   It should be reached ‑ ‑ ‑

HAYNE J:   Where there is another director involved in the business.

MR JACKSON:   Your Honour, because one is not speaking about a liability which is strict.  One is speaking about a liability to do things which are reasonable.

KIRBY J:   Yes.  We are also speaking about a liability which is personal to the employer which is a distinct legal personality of the company, which has another director, which has its own duties, which the law imposes on it as a company and as an employer to make a proper system of work.  That is a personal duty.

MR JACKSON:   Your Honour, one identifies the person upon whom the duty is cast.  One identifies the ambit of the duty.  One identifies whether there has been performance of the duty.  In relation to the first of those things, of course, the person on whom the duty is cast is the employer.

KIRBY J:   But you are trying to elide, it seems to me, the separate legal personality of the employer.  It may be you can do that under the statute, under the rubric of just and equitable, but in terms of legal doctrine it is a very radical step, is it not?  Because we have the facts of this case, the next case is going to be well, there is another, there are three directors and there are a couple of employees, and the next case is going to be slightly bigger.  Where do you draw the line?  It is better to stick to the doctrine.

MR JACKSON:   Your Honour, may I say two things in response to that.  The first is that, if I could deal with the floodgates observation your Honour put to me, the position is really likely to be the reverse because now that one has a situation where you have the possibility of there being one person companies, if I can put it that way, that is where the issue is most likely to arise in relation to proprietary companies, where one has the provision of the Corporations Act which is section 201A(1), which says:

A proprietary company must have at least 1 director.  That director must ordinarily reside in Australia.

KIRBY J:   Exactly.  That is why this is a very important matter.

MR JACKSON:   It is, your Honour.

KIRBY J:   Because there is a great tendency in employment nowadays to try to get people out of awards and out of employment into independent corporations where they are negotiating workplace agreements.  So the doctrine you are propounding is one which is going to elide our notion of a separate personality and have very serious consequences for a very large number of Australians.

MR JACKSON:   Your Honour, may I say one thing in response to that and one thing in response to what your Honour said before.  In relation to that, your Honour, the difficulty that has been brought about by the desire to have persons who were employees become self‑employed in the sense of having their own corporate bodies that employ them, has given rise to circumstances where one might think in reality the only contribution they have made is that which is taken into account in contributory negligence.  But of course the argument on behalf of the respondent means that the cherry is bitten twice; bitten twice because one sees the company, which in reality is carried on by the employee, having itself to make a contribution in addition, subject of course to the just and equitable ‑ ‑ ‑

KIRBY J:   With its own separate liability as employer that owed a separate duty, an entirely separate legal concept and which failed to discharge that separate duty.

McHUGH J:   Well, I have a problem with that.  Mr Jackson, I am not sure that this is a system case at all, or a breach of a personal duty.

KIRBY J:   It is pleaded.

McHUGH J:   I know it is pleaded, but it just seems to me there is some rather loose thinking in this case.  If you look at what is found in the case; the defendant, that is Brambles, owned the trolley, supplied and maintained it and loaded it before it was picked up by the plaintiff.  Now, what is the breach of the system of Andar’s?  The best it seems to me that you can put against Andar is that there was a casual act of negligence on the part of its employee in not inspecting this particular trolley.  What is the system?  What is the defect in the system?

MR JACKSON:   Your Honour, can I say, in our written submissions we have adverted to the fact that the Court of Appeal does not identify what the breach was and the only - it simply says, and I took your Honours to the passage yesterday, there was a breach by Brambles, therefore there must be a breach by Andar.  Now, your Honours, that proposition is one which really cannot be sustained, in our submission.

McHUGH J:   See if you look at page 183, line 3, the trial judge says:

This system of work was established by the Defendant.  The trolleys were supplied and maintained by the Defendant.  They were not supplied by the Third Party or the Plaintiff.

And then if you go back to 180, at line 20 the judge says:

It was common ground that the trolley that the Plaintiff was pulling at the time of the incident was supplied by the Defendant –

that is Brambles ‑

and loaded before being collected by the Plaintiff at a laundry under the control of the defendant.

So what appears to be the case is the plaintiff turns up, takes the trolley and it is defective.

MR JACKSON:   I am not disagreeing at all with what your Honour is putting to me.  What I am seeking to say is that what your Honour said is reflected in what the primary judge said at page 184, in the passage which commences at about line 19, and that is that the only negligence really - such negligence as there may have been in Andar is in a sense whatever the jury said was the contributory negligence of the plaintiff.  There is nothing different.  Your Honour, it is very difficult to identify what was said to be the negligence by the Court of Appeal.

HAYNE J:   Why was it not the negligence involved in packing and shifting the trolleys as they were; packing them in the truck the way that they were packed and having to shift them by holding onto the roof of the truck pulling?  That is the system of movement.

MR JACKSON:   To the extent to which one regards that as the system, I suppose one could say that might be, but the system was one which appeared to cause difficulty in the particular case because the wheels got stuck.  That is the best one can say about the system, your Honour, and that is why there does not seem to be anything particularly wrong in having the trolleys arranged in the way they were, subject to the jury’s finding.

Could I just say also, further in response to your Honour Justice Kirby, that your Honour spoke of elision.  The elision does not, with respect, exist.  One identifies who owes the duty, and that is owed by the employer.  One identifies the ambit of the duty.  The ambit of the duty is to take reasonable care in the relevant respects.  In taking reasonable care, there is no doubt that that is an obligation, as I said, of the company but the question is whether the obligation has been performed.  If you have work of this kind, the work of this kind being – and your Honours have seen the nature of it – the job to be performed by the company is one of picking up and delivering laundry, delivering, on the one hand, fresh laundry, taking back, on the other hand, laundry that is soiled and has to be washed and cleaned.

In relation to that, what you have is someone who has been engaged in the work for a number of years, namely, Wail.  You have other people engaged in the work.  When I say other people, it was a very large business which Brambles conducted under the Princes Laundry name.  In relation to that, one has a system that is established by Brambles – established or continued as a fact, it was, by Brambles.  As your Honour Justice McHugh put to me, they are their trolleys, the size of them determined, how they are filled is determined by Brambles’ system.

In relation to that, your Honours, the person who is engaged in the activity on behalf of Andar is the person who engages in it day by day.  One is not really talking, with respect, about rocket science.  He is engaged in it day by day and as between the company, namely, the company by its operative body, the two directors, it is said the person who knows something about it is the one who is responsible for all those aspects.  In relation to that, so far as the performance of the duty is concerned, there is nothing wrong, in our submission, in terms of there being a breach, for the company to leave that aspect of it to the plaintiff.

So far as a different employee was concerned, that would not be a satisfactory response, but one is speaking of the position of the plaintiff.  Then the position, we would submit, is one where it was his obligation to take the necessary steps if they were necessary.  He did not; he was injured; he was injured by it.  So his claim would be based on his own breach.

CALLINAN J:   Mr Jackson,…..in this sense, that if Mr Parker had been the person who had devised the system, assuming we are talking about a system, then the company could have sought an indemnity from Mr Parker.  It seems anomalous that because Mr Wail was the person who was injured and was also the person who devised the system, it would be very odd that the company would not be able to make a complete answer to his client by saying exactly what you have just said.  If Lister is relevant in that sense, it would create an incoherence in the law as to ‑ ‑ ‑

MR JACKSON:   And your Honour will see – I was going to refer to the further amended defence to the third party claim, page 26 – that in paragraph 3, the allegations in paragraph 5 of the third party’s statement of claim I took your Honours to before were denied.  Your Honours will see the particular (b), “The Plaintiff was solely responsible for”, and your Honours will see the matters there set out.

CALLINAN J:   The reality is today, Mr Jackson, that companies have board committees that deal with workplace safety.  Perhaps that is not as readily apparent in the case of small private companies, but more and more there is a tendency to fix directors with real liabilities or systems and workplace safety generally.

MR JACKSON:   Indeed, your Honour.  In relation to employers generally, there are sometimes statutory obligations sometimes by delegated legislation to have such committees and to have safety bodies of that kind.

CALLINAN J:   And with a trend in some places towards criminal responsibility on the part of directors for…..and workplace safety.

MR JACKSON:   Sometimes demonstrations in the streets because of – one sees in recent times.  In Melbourne there was a large demonstration last week by one of the unions involved.

KIRBY J:   If we are talking about reality, we inject the reality of insurance, that companies get their own insurance and then insurance companies, not wanting to be made liable, put pressure on the companies as a separate legal personality to take preventive steps, which is how the law ought to operate as something different from the plaintiff himself.

MR JACKSON:   That is not very like this case of course, your Honour, where the party seeking to obtain something from the employee’s company is the one that sets up a system.

KIRBY J:   That is a distinct factual element in the case and also, as I understand it, insisting, it said - I would like to know the facts of it – that its system, that is to say Brambles’ system, is observed. 

MR JACKSON:   Yes.

KIRBY J:   You say that.  I would like to know what that means in evidentiary terms.

MR JACKSON:   Your Honour, I will come to that.  May I turn then to the second issue, and that is the just and equitable exemption.  The question is whether this was a case where there should have been any order for contribution or, if I could put it differently, perhaps should the court have exempted the appellant from liability to make a contribution?  That gives rise to two questions.  First, does the power to do so exist in cases where the liability of the party seeking exemption is not one which is attracted because of strict liability?  Assuming that the power does so exist, was this, as the judge held, an appropriate case?

Could I turn first to the question of power.  This is an issue which the court noted but did not decide in Amaca Pty Ltd v New South Wales (2003) 77 ALJR 1509 at page 1513, paragraph 20. This is in tab 1 of the respondent’s materials. I am not certain whether it is in the ALJR form, but in any event it is paragraph 20 and it is the last five lines in the court’s observation. In relation to that, could we say that the starting point is to be found in section 24(2) of the Act itself. May I take your Honours to that for a moment, which is behind tab 10 in our book of materials. Your Honours will see that section 24(2) says that:

the amount of the contribution recoverable from any person shall be such as may be found by . . . the court . . . to be just and equitable having regard to the extent of that person’s responsibility for the damage; and . . . the court . . . shall have power to exempt any person from liability to make contribution, or to direct that the contribution . . . shall amount to a complete indemnity.

There are several features, one may note, concerning the provision.  One is that it contemplates that, but for the power to exempt, there would be a liability to make contribution.  That is the underlying assumption of the provision.

The second thing, your Honours, is that the concluding words of section 24(2), that is “or to direct that the contribution . . . shall amount to a complete indemnity”, are the obverse of the exemption provision.  The third thing is that the power is one which is conferred on a court and plainly enough, in our submission, to be exercised only where it is just and equitable to do it.  This is not a case of a power conferred on an administrative body and a power conferred on a court should not be construed as subject to unstated restrictions except those which would be implied from the subject matter or nature of the power.

That last observation has been made on a number of occasions in the Court.  Could I give the Court one reference.  That is to Owners of “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404. All the members of the Court at the top of page 421 said:

It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.

HAYNE J:   You have to be able to give a direction to a jury about this issue because it can be a jury question under this statute.

MR JACKSON:   Yes, quite, your Honour.

KIRBY J:   There was a jury trial in this case, but not on the third party.

HAYNE J:   If there is a jury trial, it is the jury that is to have power to exempt.

MR JACKSON:   Yes, and what one would do in that case would be to give a direction to the jury that they had to bear in mind, had to take into account, to make a comparison – in dealing with this question, first of all a comparison of culpabilities and the relative importance of the acts of the parties - that is the standard observation in relation to contributory negligence – and then to say, looking at those matters, is it a case where, bearing in mind all the facts that you have found, it is - your Honours, I do not know that one could go beyond using the words of the statute, “just and equitable”, that one of the parties should not have to pay or should be entitled to a complete payment by the other.

GLEESON CJ:   But it is justice and equity as between two people and justice and equity in a particular context.  You could not resist a claim for contribution on the ground that it would eat up the whole of your assets and you would have to sell your house.

MR JACKSON:   No, your Honour, I do not suggest that for a moment.  What I am suggesting is that it is something which flows on from the matters which would be taken into account in determining what contribution should be made.  One sees that commonly stated in the terms to which I referred earlier, and that is a comparison of the relative culpabilities of the parties and the relative importance of the acts of the parties.

HAYNE J:   Could I just follow that out.  Let it be assumed and let us stay with the jury for a moment, the jury making the comparison of responsibility, say it is an 80/20 split.  What is the further step in reasoning which you invite the jury to take, whether as advocate or as judge in charging the jury, to lead them to the conclusion that the power to exempt should be exercised?

MR JACKSON:   In a case like this, your Honour, it would come down to saying matters of the kind that were adverted to in the discussion I had with Justice McHugh a little while ago, but one would look at the fact that what was being done was really to implement a system; a system which was one that was required to be implemented and one which, not of our design but one brought about by the acts of the present respondent, and one in relation to which there was only in a sense casual negligence of the kind I described before by Mr Wail.

In relation to that, your Honours, one would say two things.  One is the question would be, is the relative responsibility of the two parties such that although there may be a legal responsibility on the employer, the significant proportion of responsibility or the overwhelming proportion of responsibility really should be attributed to the respondent.  Your Honours, a value judgment inevitably is involved but it does work on the prior assumption there would be a liability, so that there is some value judgment involved.

HAYNE J:   Can I just go back a stage.  Which contribution proceedings are you considering?  Who is seeking contribution from whom?

MR JACKSON:   I am speaking immediately of the present circumstances, of course, but the basic foundation of it is that one has one tortfeasor seeking from another tortfeasor contribution in respect of the liability.

HAYNE J:   In this case, which contribution?

MR JACKSON:   The contribution that is being sought in this case is contribution from the employer to Brambles in respect of the amount of 65 per cent of the plaintiff’s verdict.  That is why there is a second aspect to this case and that is, if one looks at the relative responsibility and bears in mind that already 35 per cent has been taken off the plaintiff’s verdict for the circumstances of his own negligence and where the judge has said that that negligence and the negligence of the company are, in effect, the same thing, it is possible, in our submission, to say that this is a case where in the particular case there should not be any further apportionment as between the company and the respondent.

GLEESON CJ:   But why should Brambles entitlement to contribution from Andar be affected by the relationship between Andar and Wail?

MR JACKSON:   Your Honour, it should be affected, in our submission, because the acts that are relied upon as giving rise to the entitlement to contribution are the acts, which as between the other two parties, had the consequence that Wail was held to be contributorily negligent.

Your Honour, one is speaking about a circumstance where the liability of the appellant to Wail is a liability brought about by those very same acts.  A judge, or jury in an appropriate case, would be perfectly entitled to say, if one looks at the position overall, the acts on the one hand of Andar by its employee are perfectly well catered for by saying that 35 per cent of the liability is to fall on that side, 65 per cent on the other.  It should not be 65 per cent, then further to be apportioned.

HAYNE J:   Is it relevant in making that comparison to have regard to the fact that Andar’s breach, which is the hypothesis for debate, is breach of a duty of care to its employee ‑ Wail’s liability to contribute arising from a failure to take care for his own safety – does the characterisation of the fault intrude in any way?

MR JACKSON:   Your Honour, it is of course relevant.  One identifies what is the fault but if one goes beyond a description of the legal nature of it to what lies behind it, why it exists, one sees that in the particular case – and these are all particular cases – the failure of the company or the liability of the company is brought about by failure of Wail, on behalf of the company, to do the things that were the same things as those that gave rise to his contributory negligence, the failure to take care of himself.

GLEESON CJ:   Why should it be any concern of Brambles that it is convenient for Mr Wail and Mr Parker to have a division of labour under which Mr Wail works out the operation of the trucks and the trolleys and Mr Parker does the books?

MR JACKSON:   Your Honour, one looks to see in the first place what is the liability.  One starts from the proposition that for there to be a claim for contribution it has to be a case where Wail could have sued the appellant successfully.  If he had sued us, he must have been able to do so successfully.  He would have been able to do so successfully on the basis that there had been some breach by the company of its duty, but the breach by the company of its duty is a breach which consists of, and one has to identify it, the fact that he personally did not take sufficient care for himself.

Your Honours, in terms of the overall responsibility for the injuries one is entitled to say, in our submission, who, as amongst the three parties as it were, bears the greatest responsibility.  Or, should the responsibility of the appellant be any greater than 35 per cent?  The answer, in our submission, would be “No”.  Your Honour, I appreciate that one is looking at, in our submission, a tripartite situation in the particular case, but that still does not follow that it should be more than 35 per cent.

CALLINAN J:   Mr Jackson, can I just return to a matter.  What Justice McHugh suggested to you as a possibility was that perhaps Andar was not negligent at all.  You do not have a ground of appeal to cover that, do you?

MR JACKSON:   No, your Honour.

CALLINAN J:   It is not your submission?

MR JACKSON:   No, your Honour.  I am sorry, your Honour, we do.  I am sorry if I have misled your Honour because what your Honours will see is ground 3, page 261, and also ground 2.

CALLINAN J:   Ground 2?

MR JACKSON:   Your Honours will see grounds 2 and 3, page 261.

CALLINAN J:   Do you say there are no findings of fact that you have to overturn?

MR JACKSON:   No, your Honour, there are not.  Your Honour will see in our written submissions paragraph 23, page 7.  We set out in paragraph 23 what seems to be the core of the reasons of the Court of Appeal for saying we were negligent and we go on to say what is set out in paragraph 23.

CALLINAN J:   If that submission succeeds that is really the end of the matter, so far as you are concerned.  Is that not right?

MR JACKSON:   Yes, it is the end of the matter.  There is, of course, an argument on the contract.

CALLINAN J:   Yes, subject to the contracts argument.

GLEESON CJ:   And it was the argument on the contract that it was decisive in the Court of Appeal, was it not, in terms of the ultimate outcome?

MR JACKSON:   In terms of there being an indemnity, yes, your Honour.

GLEESON CJ:   Yes.

KIRBY J:   That is why I am curious that you have approached it this way because conceptually one would think the contract comes first, because if the contract applies, then that is total indemnity under the contract and end of problem.

MR JACKSON:   The reason for doing it in this order, your Honour, is that the principal basis on which we obtained special leave was in a sense the first point that I have argued.

KIRBY J:   Once you have it you are in the court and is that not true, that conceptually one looks first to see if there is this special contract between the parties.  If it is, it overwhelms all the other problems and that is the end of the matter.

MR JACKSON:   Your Honour, if it is and then there is a question – if it is, if it was in operation and there is a question of construction of it as well.  So that I accept that logically what your Honour puts to me is right, but it is a question of in the end one has to deal with the points.

KIRBY J:   The contract issue itself has some interesting points in it.  It is not, as far as I am concerned, a matter that would not itself warrant special leave.  I am just trying to get it clear in my mind how one, as a lawyer, approaches this problem conceptually and it does seem the special contract is the first step and if that fails, then you come to the general law and the operation of the Wrongs Act.

MR JACKSON:   Yes, your Honour, I accept that is the logical way to do it, may I say the prudent way, from someone looking at it from the other side of the table.

KIRBY J:   Yes, I am sure it is very different down there.

GLEESON CJ:   Is it also the case, Mr Jackson, that the Court of Appeal did not actually make a decision about what was just and equitable contributions?

MR JACKSON:   Yes.

GLEESON CJ:   That is why I think I suggested earlier that it may have to go back to the Court of Appeal, on one view of the matter, if you were to succeed on your contract argument.

MR JACKSON:   If we succeed on the contract argument, one goes to the first and second issues.  In relation to those, if we succeed on the first issue then the second issue does not require consideration.  If we fail on the first but succeed on the second, it is a question of what degree of success we have.  If we succeed in convincing the Court that it was a case where it was appropriate there be no contribution, then that is the end of the matter.  If, on the other hand, the Court feels there should be some contribution, then the Court could either decide it itself – your Honours, one is speaking of really a very small compass ‑ or on the other hand, the matter would go back to the Court of Appeal.

Your Honours, may I move on in relation to first of all the operation of section 24(2).  Could we say this, there is nothing in the wording of section 24(2) which suggests that the power to exempt is limited to cases where there has not been personal fault on the part of the person from whom contribution is sought.  Your Honours, no doubt there are cases of that kind where an order might be made but they are not the only instances of the ambit of the power.

Two decisions in intermediate appeal courts, in the Court of Appeal in New South Wales, support the view that there can be exemption in circumstances, notwithstanding the fact that there has been individual fault on the part of the party seeking exemption.  Your Honours, that was directly decided in the case from which Amaca v New South Wales in this Court was the appeal.  That decision is Rolls Royce Industrial Power (Pacific) Ltd v James Hardie and Coy (2001) 53 NSWLR 626.

That case involved the liability of a number of parties and there are three passages that are germane to the present issue.  Two of them are contained in the reasons for judgment of Justice Stein in dealing with two of the separate claims.  The first passage, your Honours, is at paragraph 70 at page 639 and it is a passage that goes through to paragraph 76.

GUMMOW J:   Which paragraph of your written submissions are you on now, Mr Jackson?

MR JACKSON:   I am sorry, your Honour, this case is not referred to in our written submissions.  It is an addition to it.

GUMMOW J:   That is what I was wondering.  So it goes in where?

MR JACKSON:   It relates to, your Honour, what ‑ ‑ ‑

GUMMOW J:   It goes in paragraph 35?

MR JACKSON:   Yes, 36, your Honour, around 35, 36.  Your Honours will see in the first of these passages at paragraph 70 there is a discussion by his Honour of some of the cases and background and he arrives at the conclusion at paragraph 76 that there was simply “an orthodox exercise of the discretionary power under s 5” and that 100 per cent indemnity was not justified. 

The issue is then dealt with in another of the proceedings at page 645.  Your Honours, it is a passage which goes from paragraph 117 through to 150.  As your Honours will see from the top of the preceding page, it is in the proceeding of James Hardie v New South Wales and may I indicate what seemed to be the most important passages in that section.  First of all, your Honours will see in paragraph 119, the text of section 5(2) of the relevant enactment is set out with the relevant words italicised and then in paragraph 121 he refers to the fact that the primary judge “was purporting to exercise the exemption power” and then your Honours will see in the next paragraph the submission that was made that the:

exemption power is not available where both tortfeasors are independently at fault.

Your Honours will then see the argument on behalf of the other side at paragraph 124 through to paragraph 126 and a reference by his Honour to the relative paucity of cases on the issue in paragraph 127.  Could I just say, your Honours, in passing, we have not found anything in Canada or New Zealand that would take the matter anywhere.  There is a reference in paragraph 128 that the exemption of the 100 per cent indemnity are mirror images of the same concept.  Your Honours will see in paragraph 129 the width of the discretion.

If I could move from there to paragraph 137, your Honours will see a reference to a case of Higgins v William Inglis & Son Pty Ltd, where a full indemnity had been proposed in one case.  Your Honours, the two cases referred to in paragraphs 138 and 139 do not really take the issue very far.  When his Honour comes to his own views, he commences at paragraph 142, and if I could go to the second sentence of that paragraph:

There is no authority that I can find which expressly says so.  One can accept that if a person is blameless, but held to be legally liable for the tort of another, a full indemnity may be allowed.  But we are here dealing with a wide discretion which should not be lightly encroached.  The discretion should not be construed so as to be subject to a limitation which is not apparent in the ordinary meaning of the words conferring the power.

Then his Honour refers to two of the cases in the line to which I have referred.  Your Honours will then see in paragraph 144 the way in which – and this is, in part, in response to your Honour Justice Hayne’s observation earlier – the relative fault was taken into account, and that follows on to paragraph 145.  At paragraph 147 your Honours will see that, in the second sentence, he said:

It was not an error for his Honour to say that James Hardie created the danger which the State merely failed to avoid.

And then at the top of the next page it was held that there was no error in the judge’s 100 per cent approach.  Your Honours will see that Justice Fitzgerald at page 653, paragraphs 173 and 174, was to the same effect and Justice Davies agreed with Justice Stein.

The same view, your Honours, had earlier been taken in Daniels v Anderson (1995) 37 NSWLR 438. That is behind tab 7 in our volume. Your Honours, that was a case where a man named Hooke was the chairman and chief executive of AWA. AWA successfully sued its auditors for negligence, but it was held contributorily negligent. The negligence of Hooke amounted to the contributory negligence, or relevantly so. The auditors sought contribution from Hooke and that was denied and the reasons, relevantly, are at page 578. Your Honours will see the provision set out at the bottom of page 578 and your Honours will then see at page 579B it is said:

In order to succeed in its claim for contribution [the auditor] was required to establish that:

(1)  Hooke would, if he had been sued by AWA, have been liable to it for the same damage . . . 

(2)  That it would be just and equitable that Deloitte Haskins & Sells recover a contribution from Hooke.

It was held, your Honours, in the next paragraph, that the first commission was made out and then your Honours will then see a discussion in the whole of the next paragraph about whether it was appropriate to require there be any further contribution, in effect.  Your Honours will note, for example, about the sixth line in that paragraph:

While there is not necessarily a strict correspondence between the acts and omissions of Hooke which were properly to be taken into account in determining the contributory negligence issues and those which constituted his notional liability to AWA for negligence, the former would, in the circumstances of this case, include the latter.

Your Honours will see that proposition developed through the remainder of the paragraph.  Their Honours then posed the question at the end of that paragraph, “is it ‘just and equitable’”, and your Honours will see then a quotation from Glanville Williams at the bottom of the page speaking of an identification of the parties and a reference to what was said by Justice Barry in Pennell v O’Callaghan and the quotation from Justice Jackson in Doyle v Pick & Rickwood there set out, which are again to the same effect.  Their Honours views appear in the two paragraphs, I think, following that quotation.

Your Honours, in our submission, this is a case where there should be no contribution required from the appellant or where, to put it another way, there should be an indemnity.  Could we refer in that regard, your Honours, to our written submissions ‑ ‑ ‑

GLEESON CJ:   An exemption.

MR JACKSON:   I am sorry, your Honour, I meant an exemption.  Could we refer in that regard, your Honours, to our written submissions page 10, paragraphs 34 to 36 and the point that is in paragraph 35 I think I have already said more than once.  Your Honours, could we just say that one has to bear in mind that what Andar was doing was what it was required to do by Brambles.  Your Honour, the whole system – and I will refer to that a little more in a moment – was one which was adopted by Brambles when it acquired the business and one which it required to be followed.

CALLINAN J:   Mr Jackson, the appellant has an independent duty.  It cannot discharge that duty by uncritically accepting some system which its principal has employed for a long time.  It has a continuing duty to provide a safe system of work for its employees.

MR JACKSON:   Undoubtedly what your Honour puts to me is correct.  The issue, perhaps, would not arise, in a sense, if there were not some breach which was attributable to the appellant, but the question is whether, that being accepted, it is then a case where it is appropriate, bearing in mind the relative positions, for example, of our tiny company, a truck driver and a bookkeeper ‑ ‑ ‑

CALLINAN J:   It sounds like a jury submission.

MR JACKSON:   Well, your Honour,…..quite a few people in the jury, with respect, a special jury.

KIRBY J:   Careful now, Mr Jackson.

MR JACKSON:   I will pass over that, your Honour.  But all the better for it, with respect, your Honour.  That is exactly what is involved, with respect, in determining whether it is just and equitable.  One sees the expression “just and equitable” not only in text books on the topic of equity, but one sees it as a phrase used where there is given to courts, be they low or be they high in the judicial hierarchy ‑ ‑ ‑

CALLINAN J:   But, Mr Jackson, you cannot resolve that by measuring the respective wealth of the parties.

MR JACKSON:   Your Honour, before I was about to say a little more, but after having said that, what I was going to say was that you had a large company operating a very large laundry, a very large laundry in which it set the parameters, it determined what was to happen.  Your Honours, in that regard, could I take your Honours very briefly to the principal pages and show your Honours where the references are to the others, dealing with the system of work.

If I could go to page 125, your Honours will see the passage in the evidence of Mr Mahoney, who was the distribution manager for the respondent.  It commences at about line 13 and it goes through to page 126 about line 3.  Immediately prior to that, on the preceding page, page 124, lines 22 to page 125, about line 11, there is a statement about what happened if there was as defective trolley found.  If one moves on to page 127, line 30:

was there always somebody, whether it’s yourself or another employee of Brambles, who would be responsible for showing the drivers the route that they’d have to go around?

And the detail of that is dealt with down to the bottom of page 128, and could I refer particularly to page 128, about lines 7 to 11.  Your Honours, if one goes to page 147, line 25 – it is a passage I took your Honours to yesterday, I think, “Brambles ran a pretty strict show”, and your Honours will see that going through the top of page 148 and then line 9 on page 148 through to line 30 on the same page.  Finally, your Honours, in the plaintiff’s evidence, at page 37 commencing about line 24 through to page 38, about line 8.

GUMMOW J:   Mr Jackson, can we just look at Rolls Royce 55 NSWLR 626 again for a minute, paragraph 142 at page 648.

MR JACKSON:   Yes, your Honour.

GUMMOW J:   What is being said by the authors there?  Are they talking about a limitation on the statutory power?  Are they talking about the content of the power or the circumstances of its exercise?  I am just not sure what this debate is.

MR JACKSON:   Your Honour, what they are referring back to is the passage which is at page 639, paragraph 70.  They say:

Most leading texts on Torts conclude that it is only in circumstances where a tortfeasor is himself blameless, that an indemnity can be recovered.

That is the reference from Trindade and Cane.

GUMMOW J:   Yes, I know, but what is being said?  Is it being said that the statute itself does not permit this to happen or that, if it does happen, it is an improper exercise of the power that it is conferred or that the power should not be exercised in this way as distinct from it does not exist?

MR JACKSON:   Your Honour, I am sorry, I have managed to lose myself.

GUMMOW J:   We are meant to be construing this statute.

MR JACKSON:   Yes.

GUMMOW J:   The statute confers a power.  Is it being said that the power does not exist in these circumstances?

MR JACKSON:   No, your Honour.  What it is saying is that the restriction on power that is suggested in Trindade and Cane, for example, does not exist.

GUMMOW J:   But what is being knocked down is an argument that the statutory expression is restricted in some way.

MR JACKSON:   Yes, that is right, your Honour, but that is what the court is saying is wrong.  That that is so, your Honour – paragraph 143 perhaps is saying that, although it says:

there is no principle of law, that where two tortfeasors are independently at fault, there can never be a complete indemnity or exemption.

Now, that says “principle of law”.  It is really speaking of construction of the statute.

GUMMOW J:   Exactly.  There is no principle of law.  The question is what the statute means.

MR JACKSON:   Indeed, your Honour, yes.  I am arguing for the result, with respect.

GUMMOW J:   I do not see why we should agitate our already fevered minds by these false notions.

MR JACKSON:   Well, your Honour, our argument on it commenced with the terms of the statute.

GUMMOW J:   Yes, I know.

MR JACKSON:   The last thing I wanted to say, your Honours, on this aspect of it was this.  Your Honour Justice Kirby asked me where one finds the detail of the system of work.  Your Honours, we have given the references to that in our submissions in reply in paragraph 5.

KIRBY J:   …..some of those passages which you have just referred to seem to cover some of the points.

MR JACKSON:   Your Honours, I regret to say that that is a responsive contention in paragraph 5 and to something that said there was not much evidence about the system of work.  We say, look at the whole of Mr Mahoney’s evidence and then look at the precise parts in those passages in Wail’s evidence.

McHUGH J:   But what comes out of the evidence and what prompted my earlier questioning of you is that if there was a defect in a trolley, it seemed to be the duty of the driver to put a red tag on it when he observed it.  What I do not follow is, what is it that Andar is supposed to do, in terms of a system?  Are they supposed to go out there and inspect every trolley?  There just does not seem to be a system that Andar is responsible for in any way.  They employed a person to work there and unless it can be said they were under a duty to go and inspect every trolley, it is not easy to see what the system was or what the defect of the system was, as opposed to, on this particular occasion, the plaintiff did not spot a defective trolley.

MR JACKSON:   That is so, your Honour.  The problem in the present case is that if it was the job to spot the defective trolley, the spotting of the defective trolley came about by injuring himself, in effect.  Your Honour, it is very difficult to see what more there was than that.

McHUGH J:   You can see that Brambles were at fault, because they provide this defective trolley, but if you were pleading the plaintiff’s case against Andar and pleading it in concrete terms rather than general abstractions, it would not be an easy case to plead.

MR JACKSON:   No, your Honour.

HAYNE J:   Well, why would it not be pleaded as the default is lying in providing a 10½ tonne truck loaded with, whatever it was – 22 trolleys, was it not – stacked in this way, delivered in this order, because he was pulling one out of the middle of a stack, was he not?

MR JACKSON:   Pulling out the middle one.

HAYNE J:   Yes, and is that not the deficiency in the system?  It is pulling the middle one out in the middle of a 10½ tonne truck rather than, for example, off loading on some other method of truck.

MR JACKSON:   Your Honour, so far as Andar was concerned – and this is where questions of the relative size in terms of the amount of information available to a company do become relevant – in our submission, what you have is a situation where you have a very small company in the position of Andar.  Now, in relation to that, the job that it performs is to do work for someone which carries on a business which can engage a significantly larger number of trucks.  What it has to do is to perform the work that it is required to do by the use of a particular vehicle, for example, and the question which arises, your Honour, is whether it acted reasonably.

Your Honour, one cannot really say more than that and, in relation to that, our submission would be that it is acting reasonably in implementing a system which has been carried on for some years, which is not altered by the person who is ultimately in charge of the system, and I think I would be repeating myself in saying more than that about it.

Your Honours, may I move then to the third issue and that is the question, in a sense, what terms of the old contract were adopted.  Your Honours will see the contract itself at page 158.  It goes from page 158 through to 177.  It consists, your Honours, of a number of parts.  First of all, at page 158 it has something headed “Schedule Summary & Index of Agreement” and “Main Terms of Agreement”.  That is pages 158 to 161.  Your Honours will see the general terms and conditions being set out at pages 162 to 175.

GLEESON CJ:   And what, in your submission, happened to those general terms and conditions when the term of the contract expired and the parties continued to do business with one another?

MR JACKSON:   Well, the position was this, your Honour.  What occurred was that we continued to do the same work and we charged and were paid at the same rate.  Could I just say one or two preliminary things?  Your Honours, there had been no renewal of the contract nor had there been, during the term of the agreement, any agreement to extend its life.

GUMMOW J:   Was there provision in there for renewal?

MR JACKSON:   If your Honour looks at page 158, the last line:

11   FURTHER TERM – Subject to renewal at the discretion of the Company.

Your Honour, that seems to have been the provision.  The part of the document which is at page 158 to 161 in some respects seems intended to have operative effect, in some respects it is simply an index.

GUMMOW J:   I am surprised a solicitor would draft that sort of ‑ ‑ ‑

MR JACKSON:   Your Honour, the position arises – of course your Honour the Chief Justice put to me, in effect, what inference should be drawn from the conduct as to the terms of the agreement?  Your Honours, our submission is that no doubt one is entitled to draw the inference that some – indeed, perhaps many – of the terms of the agreement were in force in the period after the agreement came to an end.

GLEESON CJ:   Well, let us begin with the principal term, which is on page 162, clause 1.

MR JACKSON:   Yes, your Honour.

GLEESON CJ:  

The Company and the Operator respectively agree to make the Vehicle available for use in connection with the Business . . . on the terms incorporated in the Agreement –

Are the competing possibilities that they continued to make the vehicle available on the terms incorporated in the agreement or that they continued to make the vehicle available on no particular terms?

MR JACKSON:   No, your Honour, the competing possibilities really are three.  One is that they continued to make the vehicle available on all the terms contained in the agreement, except as to the term of the agreement.  One is that they agreed to make the vehicle available on no terms, so that it was simply a question of quantum meruit, as it were.  The third is that they continued to make it available on such terms as were necessary, perhaps to give commercial efficacy to the agreement, or, perhaps one might also say, commercial efficacy or such as were appropriate to an agreement of that kind.

CALLINAN J:   Mr Jackson, the course of dealing was exactly the same, was it not?  There was no change at all in any way.  The price remained the same, or the price mechanism remained exactly the same, did it not?

MR JACKSON:   We were simply paid the amount of the operator fee referred to in item 7 on page 158 and we did the same work and were paid at the same rate.  That is essentially what happened, your Honour.

CALLINAN J:   It looks a little bit like those cases in which the parties may not have executed a formal written agreement, but their course of dealing has been entirely in accordance with it and they have been held to be bound by it.  Metropolitan Railway v Brogden I was thinking of.

MR JACKSON:   Yes.  Your Honour, the course of dealing was simply one in which we did – and this was essentially the evidence – work that was similar to that that had been done before, we were paid at the same rate.

CALLINAN J:   Exactly the same as what you did before, was it not?

MR JACKSON:   Your Honour, no doubt it varies from day to day, but the same type of work I mean.

CALLINAN J:   Yes.

MR JACKSON:   I am not suggesting that we did something different ‑ ‑ ‑

KIRBY J:   But the thing that concerns me, and it may not be founded on legal principle or accepted doctrine, is if you are seeking an indemnity, that is an exceptional, peculiar, particular release from what otherwise descends upon you as a legal obligation and that, therefore, if you seek that, you must seek it and get it by express agreement and it must be executed as an express agreement between parties, otherwise the normal legal obligations apply.  In other words, it steps out of what is otherwise an ordinary reasonable term of dealing between parties.  It is exceptional.  Is that a misassumption?  Is that not founded on legal principle, because that is what instinctively I react to this proposition with?

MR JACKSON:   Your Honour, I would not seek to argue that there are cases where a contract which was an implied contract did not contain an indemnity, because it must depend upon the particular circumstances.  The point that I am seeking to make, however, is this, that so far as the agreement is concerned, the position, in our submission, was that after the time of the agreement had come to an end in April 1993, the agreement was necessarily one that had no limit as to time.  It was one that could have been brought to an end on notice – perhaps a week’s notice, perhaps if the remuneration was weekly, perhaps a little longer – by either party to it.

GUMMOW J:   Mr Jackson, if we look back at this “FURTHER TERM” on 158, why are not the subsequent dealings at least evidence which you could use to infer a renewal by the company, it having proffered this arrangement, it seems.

MR JACKSON:   Your Honour, that, with respect, is not a contention that has ever been advanced that there was ‑ ‑ ‑

GUMMOW J:   Maybe not, but it is a question of construction, really.

MR JACKSON:   There was no evidence, with respect, that the company had sought to renew the ‑ ‑ ‑

GUMMOW J:   Quite.

MR JACKSON:   But, your Honour, that being so, one would need, in our submission, to see, first of all, was it an issue which was pleaded that the agreement had been renewed and was going for a term of three years or was it, as appeared to be common ground – we will give your Honour a reference in just a moment – that the agreement was one which was, after 4 April 1990, terminable on reasonable notice.  If one makes the assumption that the agreement was one that was terminable on reasonable notice because it just ran on – that was the way the case was conducted – then in those circumstances it becomes a question of determining what provisions of the contract remained in being.

Now, no doubt, many of them, such as the get‑up of the truck and so on, were ones that were perfectly apposite to that circumstance, but the point we would seek to make is simply this, your Honours, that one can understand a person in the position of Andar accepting a term such as clause 8 as a necessary part of the acquisition of a contract for a term of three years, but, in the sense that ‑ ‑ ‑

GUMMOW J:   It submitted to this further term provision on page 158.

MR JACKSON:   It did, your Honour.  That was part of the agreement.

GUMMOW J:   It was at the discretion of a company that it might be lumbered with this indemnity provision thereafter.

MR JACKSON:   But, your Honour, if there were a renewal it would get to the three years.  That was not the case.  No one suggested that they got another three years.  No one suggested it was renewed.  It is one thing, your Honours, to say, “We will accept clause 8, whatever it means, if it is something in return for getting a three‑year contract with a right of renewal”.

HAYNE J:   What is the effect of the pleading at pages 29 to 30, paragraphs 2 and following of the reply?

MR JACKSON:   The effect of the pleading, your Honour, is simply that it is said there was an agreement to continue the existing business relationship.  Your Honour, when one came – it does not say there was an agreement to renew it for a term of three years.

HAYNE J:   Same manner, same terms.

MR JACKSON:   That is the allegation, your Honour, in the pleading.  When one comes to the issue - could I give your Honour a reference in just a moment to what ‑ ‑ ‑

HAYNE J:   Yes.

GLEESON CJ:   Mr Jackson, all this arises because we are considering the application of clause 8 and in particular, clause 8.2.2.

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   Could I just direct your attention to the proviso to clause 8 which says that:

obligations . . . under this Clause shall continue after variation or termination of the Agreement and any renewal or extension –

Is what happened here an extension?

MR JACKSON:   No, your Honour.  What we would submit would be an extension would be if it were agreed during the agreement that the terms of the agreement were to go for a further defined period afterwards, it will be extended, but there was no agreement to extend during the term of the agreement.  What one had was simply an agreement which had come to an end and then work was performed for the same nature and payment was made in the same way.

So far as that part of clause 8 is concerned what your Honours will see is that the proviso to it is, in our submission, simply seeking to say, in effect, no more than that the fact that the agreement has come to an end does not mean that prior obligation, or obligations accrued prior to its coming to an end, have gone.

GLEESON CJ:   Maybe the reference to “extension” in the context of this case is only another way of restating the problem?

MR JACKSON:   That is possible, your Honour, but one is speaking of, in the opening words of 8.2 “variation . . . renewal or extension”.  There was no renewal nor was there, in our submission, an extension.

GLEESON CJ:   There was not a termination, was there?

MR JACKSON:   Well, your Honour, there was an automatic termination.

GLEESON CJ:   “TERMINATION” is used on page 160 as a word to describe cancellation of the agreement.

MR JACKSON:   Yes.  Your Honour, there was not a cancellation.  That seems to be referring to a cancellation ahead of its time, as it were, premature cancellation.  If I could just conclude what I wanted to say in relation to the terms of the agreement, first of all, your Honours, our submission is, to put it shortly, that whilst one might accept that in return for a three‑year contract one accepts an indemnity clause having the suggested effect of clause 8.  On the other hand, it is the quid pro quo, as it were.  On the other hand, there is no such – if there is an agreement arrangement which could come to an end in a week or a month, then in those circumstances there is no reason why one would infer an agreement to accept such a provision.

Your Honours, the approach taken by the Court of Appeal is at page 246 in paragraphs 60 to 61.  Whilst it is a lengthy paragraph going on to the end of the next page, in our submission the Court of Appeal has not really directed attention to whether the contract in toto would operate afresh.

Could I move then to the question of the construction of the contract.  That turns on the construction of clauses 8.2.2 and 8.2.3, both of which are relied on, as we would understand it, by the respondent.  Your Honours, could we say that this was a contract which was to be performed by a nominated vehicle and a nominated driver.  Could I take your Honours to the definitions at page 175.  Your Honours will see the term “Vehicle” defined in paragraph 19 on that page.  Your Honours will also see the “Driver” defined in paragraph 7.

The identification of the vehicle and person appear at page 158 where the “VEHICLE” was to be the particular vehicle and the “DRIVER ‑ DARYL WAIL”.  Your Honours will also note at page 159 – items 13 and 14, the:

DELIVERY ROUND – To be completed by the Vehicle providing pick up and delivery service to customers of the Business operated by the Company.

14.  DRIVER . . . driver or any satisfactory substitute to operate the Vehicle.

Your Honours will see at page 162 clause 1 notes the agreement:

to make the Vehicle available for use in connection with the Business –

Your Honours will also see that the relevance of the vehicle and the driver appears again ‑ ‑ ‑

GLEESON CJ:   Excuse me, what does that expression mean, making “the Vehicle available”?

MR JACKSON:   Well, your Honour, making “the Vehicle available” – it really a composite expression, your Honour, making the vehicle available in connection with the business.  “Business” is defined at page 175 as being the:

Commercial and Industrial Laundry fabricare and dry cleaning business ‑ ‑ ‑

GLEESON CJ:   The operator owns the vehicle, does he not?

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   In what sense does the company make the vehicle available?

MR JACKSON:   It seems to be a shorthand expression, really, for saying that it will provide work for it, I suspect, so far as the company is concerned.

GLEESON CJ:   Andar owns the vehicle, does it not?

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   Painted in Brambles’ colours.

GUMMOW J:   “[T]o make” means that the operator will make, does it not?

MR JACKSON:   Yes, your Honour, “to make” – we make the vehicle available.  Perhaps it means the company or the operator respectively agree that the operator will make.

GLEESON CJ:   It probably did not come out of Evatt and Beckenham’s Conveyancing forms and precedents.

MR JACKSON:   Your Honours will then see clause 2.1, the relevance of the vehicle and driver appearing again were to:

procure use of the Vehicle in connection with the Business strictly on the basis that –

Your Honours will see the reference to the “driver” in 2.1.1, “the Vehicle” in 2.1.2.  Your Honours will see that the provision for Brambles’ get‑up to be applied in clause 2.2 and also, your Honours, that is referred to in clauses 3.2 and 3.3.  If I could go back for a moment, your Honours, to 2.3:

The Operator shall procure the Driver to undertake and complete a course of training to be conducted by the Company at the expense of the Operator in relation to the operational standards procedures and requirements of the Company in relation to the Delivery Round –

and, if one moves on to clause 3.4 on page 162, there has to be:

compliance by the Driver with the . . . plans and schemes formulated by the Company.

GLEESON CJ:   Is clause 5.2 relevant to any of your earlier arguments?

MR JACKSON:   Your Honours, it certainly is relevant to the second argument, the just and equitable argument.  It also, your Honours, provides, in a sense, a background in relation to the first of them.

GLEESON CJ:   And 5.3?

MR JACKSON:   Yes, your Honour, 5.3.  Also, one sees 5.5 and 5.7.  Could I just say also in relation to clause 3.8 at page 163:

the Driver to observe and comply with the delivery requirements operational procedures standards and requirements of [Brambles]
in the completion of the Delivery Round.

3.9 . . . comply with the standards of dress and general behaviour . . . observe and comply with any operating or procedures manual –

and clause 3.13, to go to “training meetings”, in effect.  Now, your Honours, could I also mention clause 4.  Clause 4.1 on page 163 requires us to “undertake the Delivery Round” at our own expense. 

Your Honours will then see clause 4.3.  Many of our obligations are listed.  Clause 4.4 requires us to “provide” a “Driver” having the characteristics there referred to.  Could I pause at that point, your Honours.  One then comes, importantly, to clause 4.6 at page 164, which requires us:

To assume sole and entire responsibility for and indemnify [Brambles] against all claims liabilities losses expenses and damages arising from operation of the Vehicle by reason of any happening not attributable to the wilful negligent or malicious act or omission of the company.

Could I just pause to say, your Honours, that one sees the expression used “operation of the Vehicle” and, of course, the operation of the vehicle is to be operation of the vehicle in connection with the carrying on of the business, namely, the business of the delivery round.  Your Honours, what one sees from clause 4.6 is that whilst it creates an obligation to indemnify, what it does exclude is set out in the qualification to it which includes things attributable to the negligent act or omission of Brambles.  So, there is no obligation to indemnify in respect of that.

KIRBY J:   Is the “wilful” there an adjective qualifying “negligent” or is there a comma missing?  Is it a wilful act, a negligent act and a malicious act, or ‑ ‑ ‑

MR JACKSON:   Yes, they are separate things, your Honour.  The word “or” is there, of course – “negligent or malicious”.  Our submission would be that ‑ ‑ ‑

KIRBY J:   Does it really mean wilfully negligent, or not?

MR JACKSON:   No, your Honour.  It means wilful act or omission, negligent act or omission, or malicious act or omission.

KIRBY J:   I see.

MR JACKSON:   Your Honour will see that the word “or”, in our submission, should be treated as existing in the ordinary form of language between “wilful” and “negligent”.

KIRBY J:   We are not concerned with that exclusion in the facts of this case?

MR JACKSON:   We are not concerned with it as a provision that is sought to be relied on by the respondent.  We rely on it as a provision which is germane to the construction of clause 8 – the existence of which is germane to the construction of clause 8.  Your Honours, I was just going to say, clause 4.13, which your Honours will see at page 165, is a provision which requires us:

To notify the Company in writing immediately of any claim against the Driver or the Operator of negligence –

and your Honours will see the various matters set out there -

the operation of the Vehicle in completing the Delivery Round –

Could I go, then, to clause 8, itself, at page 169.  Your Honours will see that the opening words of clause 8.2 make it clear that the provision is speaking of matters in respect of which Brambles may become liable to somebody else:

Indemnify the Company from and against all actions, claims, demands, losses, damages, proceedings, compensation, costs , charges and expenses for which the Company shall or may be or become liable . . . in respect of or arising from –

and your Honours will then see clauses 8.2 and 8.2.3.

KIRBY J:   The company is defined as “Princes ‑ ‑ ‑

MR JACKSON:   That is Brambles, your Honour.

GLEESON CJ:   “Princes” is the business?

MR JACKSON:   “Princes” is the business name, as your Honour will see at page 158.

KIRBY J:   It is a division of Brambles, yes.

McHUGH J:   It was taken over.

MR JACKSON:   Your Honours will see from the opening words of 8.2 that it is speaking of matters in respect of which Brambles may become liable and it recognises, in our submission, that the operator will be required to go on the delivery round in the vehicle with the vehicle marked up as a vehicle which is a Brambles vehicle.  As we say in our written submissions at page 14, paragraph 51 the possibility of a suit against Brambles based on a vicarious liability was real.  There was a vehicle going around decked out in those colours.

Your Honours, the point which we are seeking to make is this, that when clause 8.2 is speaking of the liabilities it is speaking of liabilities which may be attracted by Brambles to other people because of the operation of the vehicle in circumstances where the liability would be a liability which is vicarious.  It is not speaking of Brambles’ own direct liability.

GLEESON CJ:   Is it your submission that this clause is limited in its operation to vicarious liability of Brambles?

MR JACKSON:   Yes.  We would also say, your Honours, that it is limited to – I am sorry, I will put it slightly differently.  We would also say that, approaching it in another way perhaps, it does not include liability to the “Driver of the Vehicle”.  I am referring, in effect, to paragraph 49 of our written submissions, at page 14.  The “Delivery Round” which is referred to in paragraph 8.2.2, was one which was to be conducted by the operator using a vehicle and a driver.  Your Honours have seen the reference to “DELIVERY ROUND” at page 159, paragraph 13:

To be completed by the Vehicle providing pick up and delivery service to customers of the Business operated by the Company.

In the ordinary course of events, trucks picking up and delivering goods are always likely to back into buildings, other vehicles, chattels, bins, all sorts of things, or to run into or over persons and, as I said a moment ago, property, and they will do so by the conduct of the “Driver”.  In our submission, it is unlikely if one looks at the terms of clause 8.2.2 that when it speaks of:

Loss, damage . . . from any cause to property or person caused or contributed to by the conduct of the Delivery Round by the Operator -

which means by the driver, that it is speaking of as well injury to the driver as well as injury to other persons.

GUMMOW J:   Does 8.1 throw any light on 8.2?

MR JACKSON:   Your Honour, 8.1 or 8.2.1?

GUMMOW J:   No. 8.1, does it throw any light on what follows in 8.2?

MR JACKSON:   It is a release, of course, provision, but it does, in a sense, your Honour, because it seems to contemplate that the liability from which Brambles is being released is a liability which is attracted by reason of the activities of the operator.  I do not know that I can take it beyond that but that is what seems to be contemplated.  Now, if one goes then to 8.2.3 your Honours will see that it uses a similar expression:

Loss, damage, injury or accidental death from any cause to property or person occasioned or contributed to by any act, omission, neglect or breach or default of the Operator.

Now, your Honours, once again, the conduct of the operator that is contemplated, in our submission, is inevitably conduct of the operator by its

driver.  It is unlikely, in our submission, as a matter of construction that it refers to injury to the driver.

We would also say, your Honours, that there are two further features.  One is that clauses 8.2.2 and 8.2.3 do have to be read with clause 4.6.  If one goes back to clause 4.6 at page 164, the presence of that clause which excludes an indemnity in respect of negligence in relation to the vehicle makes it unlikely, in our submission, that such an obligation to indemnify would then be put in in clause 8.  The two have to be read together.  Your Honours, the presence in clause 4.6 and the reference to negligence militates against the view that 8.2 is intended to cover liabilities which Brambles contracts because of its own conduct.

The second matter is this.  If we are right in our argument on the first of the issues - that is on the causation basis - then the liability was not a liability caused by Andar.  Your Honours, those are our submissions.  I think I have to give your Honours one or two references.

GLEESON CJ:   Yes.  Thank you, Mr Jackson.  Yes, Mr Finch.

MR FINCH:   If the Court pleases.  Notwithstanding that we adopt the proposition that your Honours would not find it necessary to deal with the Wrongs Act propositions if your Honours were for us in respect of the contract if it is convenient to your Honours I will deal with the matters in the same order as my learned friend Mr Jackson did, that is deal with the Wrongs Act matters first.

I deal first, your Honours, with this proposition that is central to the appellant’s position and that is that Mr Wail could not have succeeded in an action against Andar because he was the sole cause of his injury, such that any fault of Andar was co‑extensive with the fault of Mr Wail.

GUMMOW J:   Mr Finch, there is a sound trap of enormous size, although invisible, between you and this part of the Bench anyway.

MR FINCH:   I am sorry, does that mean your Honours are hearing me too loudly, or not loudly enough?

GUMMOW J:   That is right.

HAYNE J:   Not at all.

MR FINCH:   Not.  It is not often that compliment is paid to me that my voice is too soft.  I will speak up, your Honours.  I am not sure whether this amplification works.  It may have something to do with the elaborate ceiling.  I will endeavour to speak up and towards your Honours.

GLEESON CJ:   And come towards the centre after lunch.  Not now, but ‑ ‑ ‑

MR FINCH:   Thank you, your Honour, I will do that.  Our first response and our major response to that proposition is that it does not survive an analysis of the nature and the content of the respective duties of Andar and Mr Wail.  Can I just pause, your Honours, to recap some important matters of fact which have not yet been drawn to the Court’s attention?  They go to two things, that is, what it was that in fact the various entities did to carry out their respective obligations, and in the course of that, secondly, to say what it is that is the system adopted by Andar.

Andar, as a matter of generality, has been described as a two‑man company before your Honours.  That, with great respect, is simply not a reflection of the facts as found.  Your Honours were taken to appeal book 182 in amplification of that submission.  Just to remind your Honours, if your Honours go to appeal book 182, between lines 10 and 15, my learned friend took the Court to the sentence:

The Third Party has only one actual business activity.

The trial judge was, with respect, wrong when he said that and can I just illustrate that and expand on it a little.  If your Honours turn to appeal book 49, at line 23 – I will do this as briefly as I can, your Honours, there are just a few references to highlight this position - your Honours see that between lines 22 and 27 it is agreed by Mr Wail that Andar in fact had two trucks which were “both used all the time”.  And, indeed, Andar was thinking of “expanding” its business at the relevant time.  There is another reference to expansion but I will not tease your Honours by going to it, at 94, line 20.

If your Honours then turn over to page 55 of the appeal book, at line 22 your Honours see some expansion of that matter, that is, there was “A large truck” and a “smaller truck” and then, particularly at line 22:

And to operate that truck you had employees?‑‑‑Yes, I did.

How many . . . I don’t recall.

You had at least one to drive the other truck?‑‑‑Yes, I did.  I also had a substitute driver as well.

If your Honours then turn over the page to 56, from about line 12 onwards and then over the page to 57, line 13, your Honours will see that there was other work done.  In particular, at about line 17 your Honours see that Andar did work for “David Ferguson Removals” from time to time.  At the bottom of the page it was about “eight hours” a week, doing that sort and at the bottom of the page, he was not doing it – that is, Mr Wail was not doing that work, he had other people – that is, Andar had other employees “doing that” work at that time.  That appears at the top of the next page.

KIRBY J:   This is dressed in your livery.

MR FINCH:   Well, yes.  It is not clear – there is no evidence at all whether or not ‑ ‑ ‑

KIRBY J:   If you do not paint it out for the particular ‑ ‑ ‑

MR FINCH:   I thought your Honour was referring to uniforms.  The truck was certainly the same truck, therefore, yes, your Honour is right.  It was with a Brambles painted truck.  The point is, of course, though that Andar had employees directed by, amongst other people, Mr Wail, performing other work for other entities at the same time.  There is other work which is the subject of the evidence.  At line 5, for instance, there was work for Brashs moving pianos, which Mr Wail himself performed, and at line 22 Andar also engaged other staff to help him with that work, and Mr Parker helped very occasionally, very rarely, with that work.  That is at line 24 and 25.

Then if your Honours would turn over to page 61 at about line 24 – your Honours recall that it is recited here that after the injury to Mr Wail Andar nevertheless continued to operate the business until the trucks were sold some time in 1994.  It is – and I am going to expand on this very briefly later – quite plain from this evidence that Andar was not simply an insubstantial corporate entity imposed without real effect between Brambles and Mr Wail, such that Brambles was the effective employer and Mr Wail was the effective employee of Brambles.  It was an entirely separate organisation with a real life and content of its own.

Then if your Honours turn to page 108 of the appeal book – this is during the cross‑examination of Mr Wail.  As your Honours might expect, at line 22 it is recorded that as a director and shareholder of Andar he derived profits from the operation of the truck.  At 111 of the book life is given to some of the other personalities at lines 19 to 26 where your Honours see that it was a Mr Salamone who was the permanent driver to drive the other truck.

KIRBY J:   The question about profits was he derived profits, not he derived the profits.

MR FINCH:   Yes.

KIRBY J:   So he was just one of the ‑ ‑ ‑

MR FINCH:   He was one of the two shareholders, your Honour is quite right.

KIRBY J:   Mr Parker was taking the rest.

MR FINCH:   Yes.  Over the page at 112 your Honours also see a reference to Mr Neville who, it appears, was the substitute driver.  If your Honours then turn to 119 of the book, it is recorded, as your Honours might expect, from line 4 onwards that there was a separate contract between Andar and Brambles in respect of the second truck, that is, the truck usually driven by Mr Salamone.  Mr Wail was asked whether he had hands‑on involvement in driving that truck and he said, perhaps rather oddly, at 8 and 9 he cannot answer the question, he was not sure.  In any event, it was clear that somebody else was the driver, from lines 10 to 12. 

He says at the bottom of that page that he did not drive the other truck, and then over the page at 120 there is some detail of the profit that can be earned from the operation of the other truck by Andar, to be shared of course by the shareholders of Andar.  At line 20 on that page, 120, it was made clear that both trucks could run at a profit with a hired driver.  That is, again, although it is becoming obvious, this is a real business with a real separate commercial life deriving actual profits over and above the wages paid both to Mr Salamone and to Mr Wail himself.  Mr Wail derived his benefit from the conduct of Andar through wages paid by Andar and from the benefit derived as a shareholder in sharing the profit.

Then if your Honours look – I will not go further.  There are another couple of references but I do not need to go to them to make the point.  What we derive from that short recitation of some of the evidence about the structure of the corporation and of the relationship between the corporation and Brambles in a contractual sense are these number of points.  Firstly, as I have already said, it is factually incorrect to say, with respect, that Andar was a mere one‑man or even mere two‑man company.  It had a board.  That board was responsible for real commercial activities involving real employees including, but not limited to, Mr Wail. 

It was a trucking company which had a number of employees and, importantly, from the point of view of considering the system of work, it could and should have derived intelligence from the activities of those employees about perceived problems with the system of work as presented to it by Brambles.  I will come back to that in a moment, but one of the crucial points we wish to make, with respect, is this.  It is not right, either in fact or in law, to simply equate Brambles’ system with Andar’s system.  Brambles’ system, let it be admitted, had some defects.

McHUGH J:   Well, what were they?  I have to say this is one of the thinnest case of negligence I have ever seen, against Brambles as well as against Andar.  From what I can see of the case, the language the judge uses to talk about the trolleys being prone to jam does not seem to be borne out by the evidence at all.

MR FINCH:   No.

McHUGH J:   All that seems to have happened is that when you push the trolley in, if you did not load them properly, the wheels would turn around.

MR FINCH:   Yes.  We agree wholeheartedly there was a very thin case against Brambles, your Honour, but I will come precisely to the three elements of what is said to be wrong with the system of Brambles.  The three elements are essentially that the trolleys could be and were loaded until they were heavy and made difficult to manoeuvre simply because of their weight.  Secondly, that the trolleys had wheels of a sort which were liable to so align themselves that the trolley would be at least initially difficult to move.

McHUGH J:   Well, there was evidence from Mr Mahoney that they tried fixed wheels ‑ ‑ ‑

MR FINCH:   And that did not work.

McHUGH J:   ‑ ‑ ‑ and it did not work.

MR FINCH:   Exactly, your Honour.  Nevertheless, the jury must be taken to have accepted that there was a fault in that sense.

McHUGH J:   But how?

KIRBY J:   Is the issue his Honour is raising in issue before this Court on either side?

MR FINCH:   It is not but, with respect, it is crucial when analysing what is wrong with Andar’s system.

KIRBY J:   Yes, but we have to start from the premise, do we not, that the jury has found what it found, and that that is that there was negligence?  Otherwise we have problems in applying the Act anyway.

MR FINCH:   Your Honours do have to do that but, with great respect, I do have to grapple with Justice McHugh’s point about what it is that is wrong with Brambles’ system.  The reason I need to grapple with it is this – and it is the lead‑in to my major point here.  As I said, Andar’s system is not Brambles’ system.  The Brambles’ system, with whatever defects I identify to your Honours that attended it, was part of the industrial landscape with which Andar had to contend in developing its own system.  It was not sufficient or proper for it simply to supinely say, “Well, that is the world we have to live in.  Whatever is wrong with that system, we live with it and don’t do anything about it.”

McHUGH J:   But there are things such as inherent risks.  An inherent risk is something that the exercise of reasonable care cannot avoid.

MR FINCH:   Yes.

McHUGH J:   Now, you just do not stop your operations because there is a risk involved.

MR FINCH:   Yes.  Your Honour, I will come back to that point, but starting from the point that there are at least three identifiable problems ‑ ‑ ‑

GUMMOW J:   But what is the third one?  You gave us two.  What is the third?

MR FINCH:   I am sorry, yes, perhaps I got diverted, your Honour.  The first was weight, the second was wheels and the third was a tendency to jam when loaded in a particular way.  Now, that evidence was ‑ ‑ ‑

KIRBY J:   Now, all of these are very relevant to a company like yours which is engaged in this sort of business all the time, everywhere and with lots of people engaged in it.

MR FINCH:   Yes, and different topographies and became particularly relevant on the day in question where Mr Wail, exercising his own discretion, parked the truck so that the rear of it was higher than the front of it.  So that in addition to those three what might be called systemic problems, there was the discretionary problem produced by his manner of parking the truck, that he had to overcome the uphill element of the…..as well as the other difficulties.  Can I pause though to note this.  There is some confusion in the discussions in the case about what “defective trolley” meant.  There was a deal of evidence about what maintenance procedures might be adopted from time to time, but there was no evidence that the trolleys were defective in the sense of broken.  There was no evidence that there was some bar sticking out which engaged with the trolleys next to it.

McHUGH J:   As far as I can see, there is no evidence whatever that this particular trolley was defective.  What seems to have happened is that you have four trolleys abreast and this was put in somehow or other and that the wheels got jammed under another one, and this is in the loading.  The evidence was that if you did not load it correctly, you are going to have difficulty unloading it.

MR FINCH:   Yes, and it is loading it correctly which is part of the Andar process of grappling with the landscape presented by Brambles.  Brambles gives you a trolley.  You already know it can be too heavy, or at least very heavy.  You already know that the wheels can align themselves to make it difficult to move and you already know that the shape and confirmation of the trolley makes them liable to jam if you are not careful.  Careful doing what?  Carrying out Andar’s system of work of loading them, because it was Andar that did that, not Brambles.

HAYNE J:   But do you pull them off one out of the middle, or do you move the six so that you can get to the seventh?

MR FINCH:   Precisely, your Honour.  That is the question Andar grapples with, not Brambles.  It is Andar’s location.  It is Andar’s place of work, the back of the truck, where those decisions get made.

McHUGH J:   Well, you are told what hospitals you have to go to

MR FINCH:   Yes.

McHUGH J:   Therefore, one would have expected – and the truck will only take 10 trolleys, according ‑ ‑ ‑

MR FINCH:   Twenty two.

McHUGH J:   Twenty two, is it?

MR FINCH:   Twenty two.

McHUGH J:   I thought I saw some evidence from Mr Mahoney that said only 10.

MR FINCH:   No.  That evidence I think your Honour is talking about is where Mr Mahoney is talking about roping off groups of trolleys within the truck and you rope them off 10 and 12.

McHUGH J:   Right.

MR FINCH:   Presumably to stop movement.  Indeed, there was a deal of evidence, again, which goes to Andar’s defective system of work, where he says if using the strap provided by Andar you do a good job in roping off the trolleys, you will not get the problem getting them out because they will stay as they were put in, that is, with the wheels aligned in the same way that they went in, and you should not get movement.  The effect of his evidence is if you muck that up, if you just chuck them in the back and if you do not tie them up tight, then maybe you get this sort of problem.  But, as he says, Brambles stops at the laundry door; Andar starts at the back of the truck.  “You go to the hospital we tell you to go to”, but there is no Brambles person in the back of the truck policing either the putting in of the trolleys or, more importantly in this case, the taking out.  The point of the exercise that I am engaged in now, your Honours, is simply to say there is real content to the concept that Andar has a system of work.  It is precisely the defect in that system which the evidence in fact discloses with some detail.

McHUGH J:   But I do not know that it is the defect in the system, as opposed that from time to time an employee of Andar may engage in a casual act of negligence and load a particular trolley wrongly.

MR FINCH:   Our response to that, your Honour, is what Mr Wail did was say that he did the round in the same way that he normally did.  It was not even put to him that there was anything unusual.  He was not on a frolic of his own in any sense when he (a) loaded the truck such that they did become jammed, (b) aligned the trolleys such that the wheels were at 90 degrees to the direction he wished to pull them in, (c) park the truck so that they had to be pulled uphill rather than park it so you could pull them downhill, (d) actually attempt, with all those three factors present, by putting his hand on the roof and pulling the trolley, to pull them out safely and not, for instance, to do the following things:  not as part of a system of work which could and should have been devised by Andar to make sure before you attempted to pull them that they were not jammed, visually or with a stick or whatever other system Andar should have come up with ‑ ‑ ‑

McHUGH J:   This sounds like an O’Connor v Transport Commission Case.  The relationship between employer and employee is not that, as Lord Simonds said, between trained nurse and imbecile child.  Who needs instructions about how to pull a trolley out?  Anybody that has ever been to a supermarket ‑ ‑ ‑

MR FINCH:   It is not that Mr Wail did something unexpected.  In our respectful submission, the point of the case against Andar is he did something which should be expected, that is, he had loaded the trolleys and then went to pull them out.  In the meantime – and one does not know the precise sequence of events here – the trolleys had so become aligned in the back of the truck that they were difficult to pull out.  It is not for the company to say to the employee, “That is up to you, mate.  I am not going to tell you what you have to look for or what you have to make sure of.”

GLEESON CJ:   Well, you are taking the advice that was given yesterday.  Your systematising the employee’s conduct.

MR FINCH:   What we seek to do, your Honour, is simply to say this, that it was eminently possible, and indeed would have been successful, if Mr Wail had said, “Andar, as a corporate entity, had an obligation to ensure that my system of work was safe”.  It was not enough for Andar to say, “But it is Brambles’ system of work”.  The first point is it is not Brambles, it is Andar grappling with the Brambles’ problem, such as it was, and, secondly, it is far from farfetched to say that Andar could not itself have done something about it.  

If, for instance, it was appropriate to take on board Mr Wail’s own experience that from time to time these things stuck and were difficult to pull out and from time to time the wheels stuck, why not modify the back of the truck?  Speaking as laypersons, one can imagine a number of things you can do.  You can make corrals where the trolleys slide in so that they cannot jam.  You could put grooves in the floor so that the wheels cannot misalign.  There are a number of possibilities which might be imagined, but all of them need only be put under the heading “Andar is the owner of the space in the back of the truck”.  That is where the work is done in a way which was rationally to be expected as a normal part of the job, and he was injured doing exactly that.

Your Honours, the point I wanted to finish off with about what your Honours derive from an examination of the contractual relationship between Brambles and Andar and the corporate structure of Andar is – and I am not sure it is pressed very hard, but perhaps it is the subtext of saying a two‑man company only – there is no reason in fact or law or logic, assuming one or all of those is relevant, to treat Andar in any special way because of its size in this case.  It is a transport company.  It derives profit from the activities of its employees, whom it deploys in the marketplace, which has characteristics defined, amongst other things, by Brambles’ system of work.  There is no reason for saying in these particular circumstances there is some other or different or attenuated duty that attaches to Andar and, more importantly, in those circumstances, it is simply not good enough for Mr Parker, for instance, to say through the company, “It was enough for me to leave it to Mr Wail”.

The matter which Justice McHugh raises with me perhaps calls me to add another couple of page references which your Honours might find of assistance about the actual activities of the employee.  As I say, our generic submission is this:  do not equate Brambles and Andar’s system of work.  That factually confuses two separate things, interrelated at one interface, perhaps more, but separate.  One can call in aid, while I am briefly on that subject, clause 5.2 of the contract which your Honour the Chief Justice pointed out a moment ago.  If your Honours just turn that up for a moment.  Clause 5.2 appears at the bottom of appeal book 166.  Your Honours recall that Brambles agreed with Andar to provide Andar and Mr Wail, or any substitute for Mr Wail:

with the services knowhow experience expertise method; and techniques of the Company including such management sales merchandising marketing and other general administrative advice and assistance as the Operator shall reasonably require from time to time in the conduct of the Vehicle and completing the Delivery Round.

Two interesting concepts in that clause.  First – and this will become relevant when I come back to look at 4.6 – the clause recognises the difference between the operation of the vehicle and the conduct of the round.  Secondly, and more importantly for my current point, there is nothing in the contract which indicates that in some sense Andar was disentitled from saying to Brambles, “Look, in the operation of our system of work we are having problems.  Here they are.  Why don’t you give us some assistance in either adapting your system or helping us with ours?”, deploying the things referred to in 5.2 in the same way as 5.2 mandates. 

It is simply to illustrate that one does not say Brambles is a very big company and Andar is all on its own with a couple of directors, one of whom sits in the office and plays with his calculator.  Andar has at its disposal some of Brambles’ contractual obligations to give it and to Mr Wail, or indeed any employee who is driving the truck, assistance of that sort.  So they are not on their own and their system of work and their proper response to their obligation to provide a safe system of work has to take into account not only their own resources but the resources contractually available to them.

Can I ask your Honours just to turn briefly to page 66 of the book.  I am doing this in furtherance of my promise or threat to take you to a couple of other system features.  At 66 your Honours see at line 30 to 31 it is Mr Wail who gets the trolleys from the loading bay.  There is some possibility of confusion, as your Honours might recall, from some of the remarks in the judgment that it is Brambles who loads.  In light of the evidence, it has to be understood it is Brambles who loads the trolleys with linen.  Mr Wail – it is Andar – gets those trolleys and loads the truck.  He positions them in the truck.  Importantly, we would annotate, the evidence is that it is at least in part the position of them in the truck which is productive of the problem which caused the injury.

Your Honours see at 67 at line 7 Mr Wail wheels them about 10 metres before he puts them on the back of the truck.  Then at 14 to 18 there is a momentary hiccup but he comes back into the fold:

The positioning of the trolleys in the truck amongst 22 trolleys is a decision you make?‑‑‑No.

What determines the positioning of the trolleys?‑‑‑I make the decision about the trolleys but I don’t make the decision on the amount of trolleys that are delivered.

No.  That’s a decision made by the customer ‑

that is, not Brambles, but the hospital, or other entity to whom linen is being delivered.  So he makes the decision about where the trolleys go.  Then at 27 to 28 on the same page, the relevant hospital was Cotham Private Hospital:

It doesn’t have a loading bay? . . . 

Where you park your truck to unload your truck is your decision?

So again we are outside what might be thought to be the mandated scheme of somebody else.  He knows where to go, he has been told where to go, but once he has identified the general location it is up to him where and how he parks.  Again, one might imagine that it is not rocket science to say, if it is on a hill, do not park it so you have to pull the trolley up the hill.  It sounds trite, but that is no less than other things a matter of the system being adopted.

Then if your Honours turn back a little to 38.  Your Honours have already seen the reference, but just to flag that there are two of them.  Back at 38, at the bottom of the page, there is a slight slope at this site, over to the top of page 39, so that is where that is made clear.  Your Honours recall that it is the middle of this page where he describes for the first time precisely what he did when he suffered the injury.  That is at line 17 to 19.  He put his right hand on the trolley, on one of them, and left hand on the roof of the truck and went to pull the trolley and his back went. 

As has been observed correctly from the Bench, with great respect, it was plain from the evidence – and I will not drag your Honours through it – that when he did that he was pulling it out from between other trolleys which had in the interim apparently so moved as to jam it.  As your Honours also recall, Mr Mahoney said, if you are careful about how you load the truck, that should not happen.  He did not have experience of that happening.  He had been a driver.  He was careful.  It did not occur to him.

There is another reference to that, in case your Honours are keen to read more about it, at page 95 at about line 20.  I will not take your Honours through that.  Then on the day in question, as your Honours heard, he attempted to pull the trolley in a particular way.  As I have already said, I think in answer to Justice McHugh, there is no evidence that the trolley was broken in the sense of in some way disabled or in other than its usual confirmation.  There is no evidence the truck itself was broken or that anything else was in other than its usual form.

GLEESON CJ:   I notice there is an inconsistency of five minutes between the two clocks in this courtroom, but it is the one up at the back that accords with my watch.

MR FINCH:   Well, your Honour, we all know whose watch wins in this Court.

GLEESON CJ:   We are enjoying ourselves so much, Mr Finch, we will have another five minutes.

MR FINCH:   Thank you, your Honour.  That may be just enough time to complete the evidential review that I had in mind, your Honour.  If your Honours would turn to page 105, Mr Wail returned, because it was evidently perceived that his evidence‑in‑chief had not quite covered the field about what actually was wrong with the system.  At the bottom of page 105 he is asked in re‑examination, line 27:

did you experience any difficulty in getting the trolley to move?‑‑‑Yes, I did.

Then if your Honours flick over to 107, commencing at line 4, he then expands upon that in answer to a question from his Honour:

It was stuck with another trolley, almost wedged in between three other trolleys.

Your Honours remember the evidence is these things go in four by four.  Then he is asked:

Were you conscious of the direction of the wheels on the trolley when you went to pull it?‑‑‑Not initially.

What about after you started to pull it?

Of course it was immediately upon starting to pull it that he suffered the injury, so he did not notice this before he suffered the injury.

I looked at the wheels and they were in different directions.

And what effect did that have upon you attempting to pull the trolley?‑‑‑It made it difficult.

Then of course, to nail it home, at 18, “It was stuck”, and 21:

You loaded the trolleys?‑‑‑Yes, I did.

You placed them in that position?‑‑‑Yes, I did.

Again – and I do not want to repeat myself, I think I have already said much of this – we say that the evidence was sufficient to justify, and is sufficient on looking at it now, to justify a finding that there were things which Andar was responsible for which could and should have been addressed by way of system which would have or could have avoided the problem.

McHUGH J:   Well, it is a question of whether it was reasonably practicable ‑ ‑ ‑

MR FINCH:   Yes.

McHUGH J:   You suggested that they put grooves in the back.  Well, it is a question of, given the risk, whether they should be put to the expense of that, particularly since the truck may want to be used for other purposes.

MR FINCH:   Yes.  The better evidence is that of Mr Mahoney.  Mr Mahoney says – and I will not take your Honours through it, the references are there – firstly, there is a strap which Andar provides in the back of Andar’s truck.  The strap is there to make sure the trolleys do not move.  When – this is his evidence of his experience loading trolleys and driving trucks – if you load them and strap them up tightly and correctly, they have got so little room to move along the course of the journey that when you come to take them out they are in the same position as they were when you put them in.

McHUGH J:   He said one inch either side, I think.

MR FINCH:   Yes, your Honour is quite right.  Such that he had not experienced, strapping them correctly, any difficulty in removing them.  He had not experienced any difficulty with the wheels turning because, as your Honours may or may not have experienced recently with shopping trolley‑type wheels, you have to give them a significant lateral jolt to get the wheels to turn from the direction they are already in.  His evidence was eminently understandable and acceptable:  if you strap them up tight, then they should be in the same form or confirmation as they were when you left them when you come to take them out.

GLEESON CJ:   Is that a convenient time, Mr Finch?

MR FINCH:   It is, thank you, your Honour.

GLEESON CJ:   We will adjourn now and we will resume at 2.00 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GLEESON CJ:   Yes, Mr Finch.

MR FINCH:   Your Honours, I had just finished saying before the Court rose that on the facts that have been outlined to your Honours it could not be rightly said of Mr Wail that he was acting outside the normal scope of the system of work applied by Andar to the contractual obligations which it had.  He was not engaging in a casual act of negligence, we say, on those facts.

Mr Wail no doubt had an obligation to keep himself safe, but your Honours appreciate that it is our case that both as a matter of law and as a matter of what can be done in fact to discharge the obligation the integers of the duty to keep himself safe are different to the integers of Andar’s duty to provide a safe system of work and to assume that that system of work is enforced, in the sense that it keeps a weather eye on the system to see whether or not it needs tweaking or adjustment or supervision or instruction to make reasonably sure that the system is adequate.

Your Honours, a point that is relevant to that – and I think it was raised earlier today – is that, of course, we do not know precisely why it was that the jury found that Mr Wail was guilty of contributory negligence to the extent of 35 per cent.  What we do know, of course, is that the particulars of contributory negligence promulgated against him were different to the particulars of negligence asserted against Andar which informed its breach of its duty.

It was, of course ‑ and perhaps it is trite to say it – important in our case to observe it, though, that it was Mr Wail’s breach of that different duty to keep himself safe which informed the contributory negligence finding, not Andar’s breach of its duty.  We say that the appellant necessarily blurs the distinction between those two duties in supporting its assertion of the co‑extensive breach proposition.  Once the necessary difference in the duties, and the difference in the means by which each had to carry out those duties, is observed, we say the proposition must fail.

Can I turn, your Honours, to some of the cases which are relevant.  I promise I will not deal with them all, but perhaps only the most relevant with which we have to grapple.  Can I make a couple of points in opening about them – in particular these are Nicol and Shedlezki.

KIRBY J:   Is not the bottom line that the employer’s duty to an employee is quite a high one?

MR FINCH:   Yes.

KIRBY J:   And the employee’s duty for his own safety takes into account the practical considerations that employees get tired, that they get inattentive and so on, and that it is not every little lapse on an employee’s part that is negligence in the sense that would affix to an employer.

MR FINCH:   Yes.  At the risk of being too generic about it, the employer’s duty is higher, wider and different than the employee’s.  The employee’s duty to keep himself safe or herself safe might be adequately discharged by doing something quite minor or simply not putting him or herself in the way of the difficulty.

GUMMOW J:   What is this employee’s duty, to whom?

MR FINCH:   I was going to come to that, your Honour.  There is a curious concept, of course, and it is sometimes talked on the test of the employee’s duty to keep himself safe.  It is a bizarre notion because, of course, it is an odd sort of duty that is owed to oneself.

KIRBY J:   But the whole area of contributory negligence is very unconceptual.  You hear judges write that the employee is guilty of contributory negligence.

MR FINCH:   Yes.  Conceptually, they are confusing.  It is perhaps as well simply to speak of the obligation of the employee to keep himself safe while carrying out such duties as he or she has within the system of work devised by the employer.

HAYNE J:   Or it might be safer to just stick to the terms of section 26, if the person “suffers damage as the result partly of his own fault”.

MR FINCH:   Yes, I would accept your Honour’s strictures.  Your Honours, I was going to make a couple of general points about the approach that we take to, in particular, Nicol, but also to Shedlezki.  Just so that your Honours know where we are going, what we say is that the appellants have pulled out a sentence from Nicol in the majority and relied on it as if it were a complete and correct statement of what might be called Ginty’s principle, if there is such a thing.

The first thing we would say about it is that the majority was simply saying in one sentence something rather generic about the Ginty principle.  It was not seeking to illustrate or set out the principle with all the bells and whistles which attach to it and that it is simply wrong to take the single sentence out of Nicol and call it a principle.  The passage relied upon – and I will come to it in a moment – is really there as a recitation of the other side of the coin to the factual situation which tendered itself for decision in Nicol which was a simple one where there was a multiplicity of causes on any view and their Honours were simply, we say, there setting up what might be thought to be the conceptual other side of that coin, but their Honours did not go through to analyse the Ginty principle, if I might call it that, in a way which means that that first sentence which the applicant relies on can be relied on on its own.

In any event, we say – and your Honours have seen our written submissions – to the extent that it is necessary – and it was not in Nicol – to deal with the general principle in Ginty, the better approach, with great respect, was the approach of the dissent of Justice Dawson, but I will come to that briefly in a moment.

Again, before I come to the detail of the case, can we say what our view is about the principles relevance to this case.  Firstly, the Court in fact does not have to do any violence to Nicol or, indeed, to Shedlezki for the respondent to succeed.  One only needs to understand precisely what is and is not said by the Ginty principle.  More generally, it is the respondent’s position that the Ginty principle, though, is an unnecessary gloss of no utility on the better question, whose fault was it, speaking summarily.

If the principle is alive, it is alive in such an attenuated form, we say, that it perhaps ought to be given a decent burial, but at the very least it ought to be confined to the facts and circumstances in which cases have found it to apply and ‑ ‑ ‑

McHUGH J:   But the test, whose fault was it, is a very misleading test because it implies that there is only one cause.

MR FINCH:   Yes, but, as your Honour will no doubt appreciate, we put that test on the basis of whose, assuming there can be more than one, fault was it.  It is our case that the answer does not have to be – and in this case certainly is not – that there is one answer or that there can only be one answer to that.  If there is a principle at all, though, we say that the correct appreciation of it is this, that it is limited on the cases to cases of statutory duty.  Now, we would accept immediately that there is no necessary magic in the distinction between statutory duty and common law duty, but that the way the principle has arisen through the cases is because in statutory duty cases it is easier to say that the duty is the same as it applies to each of the persons the subject of the application of the principle or the rule.  Indeed, on one view, the person to whom the duty is owed is perhaps the same, that is, the State in the case of a statutory duty of that sort.  That is not this case.

Secondly, we say that the principle is expressly limited in the cases to circumstances where the employer has done all that it could in the discharge of its duty.  We say that is not the case here either.  Thirdly, we say that practical cases of application of the principle, if there is one, are going to be very rare for the reasons which have been set out in the cases, which I have just noticed have been summarised as long ago as 1979 in the book that your Honour Justice McHugh wrote with Justice Glass and Mr Douglas, as he then was and still is, where the principle was summarised in this way.

GUMMOW J:   What page?

MR FINCH:   At page 234, I am very sorry, your Honours:

Although denying liability in the defendant, it concedes that he is in breach of his duty – 

which answers a question asked by Justice Hayne earlier today, the principle assumes breach ‑ 

yet regards the breach as non‑actionable because it came about solely in consequence of the plaintiff’s fault.

Then most importantly:

The fault of the employer which excludes the defence will usually consist in the failure to ensure statutory compliance by the employee by means of instruction and or supervision.

The note in the book simply replicates what is said in a number of the authorities in a conveniently brief form.  What it illustrates in a practical sense is, it is actually going to be very unlikely that one establishes merely by identifying a common statutory duty such as there was in Shedlezki and saying that one stops there and can say that the principle will apply for two reasons.  One, each of the persons upon whom the duty impinges has different means of complying with it and one may and one may not for completely different reasons.  More importantly, two, the employer has – the terrible word “superadded” or perhaps just “added” would be better – an obligation to take reasonable steps to ensure that the other person the subject of the duty, the employee, either by supervision or instruction or other means, complies with it. 

For that reason, we say, the actual practical circumstances where this so‑called principle may apply are so limited that in fact it is not worth elevating it to the status of principle, that it is not worth elevating the idea higher than, as Justice Hayne said, the words of section 26, address the question in section 26.  There is  no need to apply any principle to the matter at all.

Can I come, your Honours, to Nicol – I trust your Honours each have a copy of Nicol.  Your Honours will firstly have observed about Nicol that it is not a case of statutory duty.  More importantly, this was not a case where the majority had to grapple with a case of so‑called “sole cause” because it was plain on the facts, and they decided it on the facts, that it was not just Mr Nicol but also Mr Berg and some of the other people who were present who were responsible for the acts in question.  So the general principle simply did not arise.  I do not want to take too long about it, but can I just flag a number of points in it for your Honours’ attention.

Your Honours recall that at 616 from about point 8 on that page, in the judgment of the majority, starting with that paragraph, “With respect”.  We would, with great respect, adopt all that is said by the Court there as applicable to this case, turning over to the page at 617 at about point 3.  Then if your Honours turn through to 618, after reciting Ginty’s Case at the top of that page, their Honours in the majority say this sentence – and this is the sentence upon which the appellant hangs most of its case:

If the appellant’s injuries were caused solely by his own fault, he cannot succeed.

Now, that, with respect, simply begs the question.  That is a summary, purportedly, of Ginty’s Case, but when one reads what it is that Ginty’s Case says – and the best place to see it is perhaps on page 620, in the judgment of Justice Brennan – it is not capable of such brief summary.  That is not a criticism, of course, with respect to the majority, because all they were doing was setting up the conceptual opposite of what were in fact the facts in that case, that is, multiple causes.  Their Honours did not and did not have to grapple with the detail of the proposition they were there summarising.

Their Honours – just turning back for a moment to 618 – then analysed the case in, with great respect, completely uncontroversial terms, that there were multiple causes, having established that the employer was one of the causes, it was liable, and then applied contributory negligence to the employee.  That is what we say would happen in this case.  We do not deny, of course, that had Mr Wail sued Andar and established that Andar had been negligent, that Mr Wail, in that case, would have been open to have his damages reduced for contributory negligence.  So we say there is no difficulty for our case in that first sentence for those reasons.

If one turns to Justice Brennan’s decision, there is perhaps a little more that we have to grapple with.  Your Honours will recall that his Honour there recited Ginty and Ross v Associated Portland Cement, particularly on page 620, and then in perhaps a section that can be broken down into three parts, at the bottom of page 620, set out what it was that his Honour appreciated the current state of this principle, if it was one, was.  When one reads that, one sees, of course, that the single sentence in the majority’s judgment is not a full description of it.  Your Honours see, in the paragraph that commences about point 5:

But if the employer has failed in some respect to do everything which the employer could reasonably be expected to do – 

again, with respect, that is what the cases say.  That is one of the elements, we say, which does not exist in this case.  The employer does not escape liability.  Your Honours might note that where his Honour quotes Chief Justice Herron in Shedlezki, in fact that quote came from something that the judge said in argument rather than in the decision.  But assuming that his Honour would have said it, if he had turned his mind to it in the decision, it still simply begs the question which is in issue here:

[i]t must be established that the breach by the plaintiff is the sole Cause and not merely a cause –

Then turning to the precise principle in the words of his Lordship Justice Pearson in Ginty, at the bottom of page 620, your Honours see in fact how limited the principle is.  Halfway through the quote:

It might also appear from the evidence that something was done or omitted by the employer which caused or contributed to the accident; there may have been a lack of proper supervision or lack of proper instructions ‑ 

It is not simply the circumstance that one identifies a statutory duty which applies to each, ticks that box, and says, in those circumstances, there is an equal duty to each and the employee cannot succeed.  The quote from Justice Pearson continues over the page, at page 621, in terms which we say are relevant.  The last sentence of the quote – this is about point 2:

If there is some fault on the part of the employer which goes beyond or is independent of the wrongful act of the employee, and was a cause of the accident, the employer has some liability.

Assuming there is such a principle for the moment, we adopt that.  Assuming there is such a principle, it is that which has to be read, not the single sentence in the majority.  The one part of the judgment, with respect, with which we would have some difficulty is where his Honour says, at about point 3:

Subject to a qualification presently to be mentioned, the approach to the question of an employer’s escape from liability for breach of statutory duty may be applied with equal validity to the question of an employer’s escape from liability for breach of a common law duty.

With respect, we would say that that is an overstatement of the ability to extend this principle, simply for this reason.  The circumstances, we say, simply cannot be imagined where the integers of the employer’s duty are precisely the same as the integers of, what I might call, the employee’s obligation to keep himself safe.  In those circumstances, it is simply impossible, we say, to imagine circumstances in which there would be the requisite sort of equality between the employer and employee.  His Honour simply says ‑ ‑ ‑

GUMMOW J:   The sentence beginning “When a plaintiff’s injury” is not a proposition of common law, is it?

MR FINCH:   No.  In fact, what I was about to say, your Honour, is all his Honour says – if one looks for in fact an explanation of his Honour’s introductory sentence there, all that one sees is, “The approach accords with principle.”  But what in fact one sees in the sentence commencing “When a plaintiff’s injury” down to the end of the paragraph finishing “of the deceased’s co‑workman”, read carefully, in fact, it is not an explanation of why the statutory duty idea could or should be extended to the common law area at all.  To the extent that there is a suggestion that the principle, if there be one, could be extended, we would respectfully say that it is the analysis of Justice Dawson which is the better one of that matter in this case.

GUMMOW J:   Is there any particular passage in Justice Dawson’s judgment?

MR FINCH:   I will come straightaway to it, yes, your Honour.  Your Honours, Justice Dawson’s judgment commences on page 622.  His Honour recites the principle and says at about point 8:

The application of such a principle is, however, limited to those occasions when the wrongful conduct is that of the employee alone and no fault can otherwise be attributed to the employer.

His Honour refers to Manwaring and Ginty, where in both cases:

specified working conditions were laid down and the statutory duty to comply with them was imposed upon employer and employee alike.  In the former case there was a regulation requiring ladders to be securely fixed and in the latter there was a regulation requiring the use of supporting equipment – 

As I think it was Justice Kirby said earlier on, each case was really a case of disobedience, that the employer – and this is using the summary words from Justice McHugh’s book – had done all that they could do.  It was then the employee who departed from that system, disobeyed it, went outside it, and caused injury.

CALLINAN J:   But a company can only act through natural persons.  If it employs only one natural person, then that natural person must be responsible for and make the decisions of the company.

MR FINCH:   Yes, but one cannot equate the performance by that individual employee of his obligations with satisfaction of the company’s obligations to a safe system of work.

CALLINAN J:   What if he was the executive director in control of the work?

MR FINCH:   But if the director, for instance, says to himself, “I will employ myself and delegate to myself the duty of devising a system of work for me to carry out”, and then does it badly, the fact that he has done so is a breach of his obligation, wearing his corporate hat, to ensure and do reasonable things to make sure that the system is safe.

CALLINAN J:   For which he could be sued if somebody else were injured as a result of it.  Now, is it not anomalous that if he is the person who is injured and he is the person who is responsible ‑ ‑ ‑

MR FINCH:   No, because to do so wrongly, we say, with respect, equates the obligation of the employee and the act is done to fulfil that obligation and the duty of the employer and the act is done to fulfil that obligation.  When he sues the company, he sues a corporate entity which has different characteristics to himself, although it has delegated to him that job.  It may have been negligent – and in these circumstances we postulate it is – for the corporation to do that, notwithstanding that it is his decision.  The corporation cannot excuse itself by saying, for instance, “I know I am an incompetent worker, but I am, after all, the one who decided to employ me, so that is all right”.  No, it is not.  If he knows he is incompetent or if he ought to know that he is incompetent, then that is a particular of the breach of the corporation, no less because he is the person who happens to be the incompetent one in practice.

CALLINAN J:   But he made the decision to employ himself.

MR FINCH:   Yes.

CALLINAN J:   For and on behalf of the company and for all practical purposes as the company.

MR FINCH:   Yes, but that does not disentitle the court from finding that the corporate entity has therefore acted negligently towards its employee, who happens to be the same person.

CALLINAN J:   You will need to persuade me that if the company can get an indemnity from a negligent employee it cannot plead an employee’s negligence when the employee is the person responsible for discharging the company’s duties.

MR FINCH:   That question, of course, comes up in the “just and equitable” area of this case, your Honour.

CALLINAN J:   It also comes up as a matter of general law, does it not?

MR FINCH:   We say that Lister v Romford has no application here, on the facts.

CALLINAN J:   No, the law has to be coherent and if the consequences of Lister v Romford are that a company can get an indemnity, then it would seem to me to be totally incoherent that it could not rely upon the employee’s negligence when the employee was the person who was injured.

MR FINCH:   If one assumes, your Honour, that in the Lister v Romford context that an employer is sued, not by the employee, but by a third party who has suffered damage as a result of the negligence of the employee in the course of carrying out the employer’s job, such that the employer is then vicariously liable to that third party for the actions of the employer’s employee, the employer can get, in those circumstances under Lister, an indemnity from the employee pursuant to the implied term of the contract that the case talks about, and that has not been abolished as your Honours have heard in Victoria.

But if one asks the question here, “If Mr Wail sued Andar, is there any room for the application of that principle at all?”, the answer is, “No”.  Andar is not being sued by Brambles for injury caused to Brambles by Wail’s negligence.  The factors which give rise to the indemnity right in Lister v Romford simply do not apply here.  Brambles is suing Andar for contribution because of a liability which both are subject to at the suit of Wail.  Brambles is not saying to Andar, “Mr Wail has injured me.  You indemnify me”.  The mechanisms are simply completely different.  The principle simply does not arise at all, we say.

HAYNE J:   The interposition of contribution proceedings is perhaps distracting attention from the unremarkable and very narrow content of what is decided in cases like Ginty, where, if Justice Brennan’s summary is right at page 620, all that is decided is that, as between employer and employee, you conclude that the employer was not negligent, and that is all.

MR FINCH:   Yes.

HAYNE J:   Then, if you translate that into contribution proceedings, that may have certain consequences for the application of that, but the base proposition is no grand principle of law.  It is simply a factual observation about the outcome of a particular piece of litigation between employer and employee and about a finding of negligence.

MR FINCH:   Yes.  With respect, your Honour, that is a better way of putting what I have been trying to put for the last 10 minutes or so.  We say that in fact it is simply wrong to elevate this into a principle of any higher degree than that.  When read carefully, if one actually reads what Ginty says, what your Honour says, with respect, is perfectly right and what is especially wrong is to take out the sentence at 618, in the first paragraph, and assert that that is the principle.

HAYNE J:   But that then tips you over into what Justice Dawson identifies at page 623 in the paragraph in the middle of that page and the various competing considerations that are said to underlie this principle.

MR FINCH:   Yes.

HAYNE J:   Now, yes, the proposition I put to you is seductive because it gets you home, but you have to deal then with the alternative bases that are identified at 623, because those may stand for a principle of rather greater content than the one I have put up.

MR FINCH:   Yes.  Your Honour recalls, of course, that at 623 Justice Dawson was summarising what appeared to be the reasoning in the UK case.

HAYNE J:   I understand that, but we have to come to grips with what underpins it.

MR FINCH:   Yes.  Can I answer your Honour this way.  I think I had got to 623 at about point 2, where his Honour says:

Had the duty cast upon the employer extended beyond that of the employee or been of an independent kind –

where his Honour is making a point about, if there is a principle, what one of the integers in it is, which again takes, we say, our case outside the reach of the principles.  But, importantly, what his Honour does, after reciting, as his Honour Justice Hayne says, in the paragraph commencing “The true basis”, his Honour expresses doubt, commencing at the bottom of that page – and we say rightly so – with those explanations.  His Honour says:

There are, it seems to me, certain difficulties in that explanation –

that has just been set out –

for surely in the second instance –

and his Honour there is talking about what was said in Ross and also Boyle ‑ ‑ ‑

HAYNE J:   But the nub of the point against you, or a manner of putting the point against you is this, is it not:  one, the company owed the employee a duty to provide a safe system of work; two, you, this injured employee, devised the system of work; three, the system was unsafe; four, why should you now be heard to complain that the system which you devised was bad?  Now, it is just that notion of unacceptability of other result which seems to be driving it.  Now, what is the answer to it?

MR FINCH:   With respect, unacceptability of result is not an answer.  What is the answer is what Justice Dawson says and, indeed, what Justice Mason said in his dissent in Shedlezki:  one has to observe and take proper account of the difference in the duties and in the difference of the possible ways in which those duties could be discharged and that, unacceptably, the result is simply not a rational reason for interfering with the consequences of those propositions.

KIRBY J:   But the problem still remains that if it is a one person company – I know that we have a factual issue here – but if it is, then the company only acts through one person ‑ ‑ ‑

MR FINCH:   And that may be part of its negligence.  It may be that one simply says ‑ ‑ ‑

KIRBY J:   But you cannot really tell a company, “I am sorry, you have to have more than one director; you have to have more than one employee”.  That is just not the way our society or economy works.

MR FINCH:   One does not say that, but one does say to the company, if you do not and if you do not have some external entity which is either employed or engaged to do that job for it, then it runs the risk of this sort of liability.  It cannot escape liability by saying, “I decide as a corporate entity only to employ myself.  That is a bar against my liability for injury to myself and that will presumably impact on the insurance premiums I have to pay, because having done that I insulate myself from the consequences of a failure to comply with what would ordinarily be the wider, broader, different duty of care of an employer to the employee because I have only employed myself.”

KIRBY J:   Yes, but maybe the Wrongs Act permits a jury or a judge – and the fact that it could be decided by a jury gives a clue ‑ ‑ ‑

MR FINCH:   That is at a later stage though, your Honour.

KIRBY J:   Yes, I realise that, but maybe that cuts the Gordian knot and makes all of this doctrinal discussion really, in the end, irrelevant, because you are addressed to a very broad assessment of responsibility.

MR FINCH:   Not really, and the answer, with respect, is at least partially this, when your Honour is firstly posing the question, one is looking at what it is the company might do to fulfil its obligation as opposed to what Mr Wail is doing, as employee, in fulfilment of that delegation of obligation.  One is looking at a balance of power and duty and obligation between the company and its employee.  Two points:  one, that is not the exercise which is done in section 24(2) – I have forgotten the number – the “just and equitable” section.  That question is determined, that is, the question about whether the employer has discharged its obligation, before any such questions intrude upon it; and, secondly – and perhaps it is the other side of that coin – when one comes to look at the “just and equitable” competition, it is a competition in responsibility between Brambles and Andar, not between Andar and Mr Wail, or between Brambles and Mr Wail, but between Brambles and Andar.

GLEESON CJ:   Did Andar get into this business by taking over part of what had previously been the business of Brambles?  In other words, before Andar came into the picture, as I understand it, Brambles employed Wail ‑ ‑ ‑

MR FINCH:   Your Honour is right, yes.

GLEESON CJ:   ‑ ‑ ‑ and part of what Wail was employed to do was then to operate ‑ ‑ ‑

MR FINCH:   That part of Brambles business.

GLEESON CJ:   ‑ ‑ ‑ that part of Brambles business.

MR FINCH:   Yes.

GLEESON CJ:   That part of Brambles business was taken over by Andar and Andar then employed Wail in that capacity.

MR FINCH:   Yes, and others.

CALLINAN J:   Even though, I think, Mr Wail had to remain a member of the TWU ‑ ‑ ‑

MR FINCH:   I do not want to be heard to disagree with that proposition, your Honour.

GLEESON CJ:   This issue would have a sharper focus perhaps if Andar was insolvent and there were some creditors of Andar standing behind this argument.

MR FINCH:   Yes.  The point we wish to make is simply this though, in that context.  When one comes to look at the “just and equitable” apportionment, as it were, it is a contest, as it were, between Andar and Brambles.  Mr Wail’s role in that contest is thereafter incidental.  It is no part of that debate to say, after all, Andar just delegated its responsibility to Mr Wail.  That is simply neither here nor there.  One asks, what was Andar’s corporate responsibility and what was Brambles’ corporate responsibility?  We are going to be saying that, if one does that – and I appreciate your Honours are not necessarily keen on doing it yourselves – if one comes to the exercise, there are very good reasons for saying that, in fact, Andar has a preponderance of responsibility in that factual sense.

McHUGH J:   But it is not right to say it is a contest between the two, is it?  It is true as a legal proposition, but it is a tripartite situation.  The hypothesis is that both are responsible to Wail, both responsible for his damage.

MR FINCH:   Yes.

McHUGH J:   The argument that is put against you is, Andar says, “In point of law, we did not cause that damage”.

MR FINCH:   Yes.  We say it is more than that.  I am jumping ahead a little bit, but we say that the proper analysis of the test in that section is that one sees who has contributed to the happening of the incident, as a matter of fact.  One does that though under the rubric of having identified what the responsibility was of that person in that respect.  It is not just a question of law; it is not just a question of fact.  One identifies, as a matter of practicality, who was there in the marketplace with an obligation and what each of the persons who had that obligation did to fulfil that obligation. 

Now, it may be solved by saying one person’s obligation was very much wider than the other.  It may be solved by saying in discharge of that obligation one person did very much less than it ought to have.  Those are the sort of questions which we say are alive and, in those circumstances, that is where our original submission becomes very important.  That is, analysed correctly, Andar is, in fact, taking over at the laundry door where Brambles used to have its system extend out into the community to the hospitals.  In fact, commercially speaking – and, indeed, we say legally speaking – Andar’s system then attaches.  It has to grapple with whatever defects Brambles hands to it in the truck and then, from then on, it is Andar who conducts what, in the Chief Justice’s words, was perhaps formerly the Brambles business.  If there are defects in it, Andar is there with the obligation to fix them.

I know it is perhaps a meaningless speculation and perhaps none of us is in a position to do it, but it does not necessarily have to be by, perhaps what I was suggesting earlier, building things, rails or grooves.  It can be, for instance, by instruction, instructing employees to say, “Look, this might sound trite, but make sure, before you pull out the trolley, that the wheels are straight.  If they are not, get a stick and make them straight.  Make sure that before you pull them out they are not wedged, because that can happen.”  We know that.  Why do we know that?  Because Mr Wail has experienced it happening and they have other employees who might give them other intelligence which might otherwise inform their system of work, which never gets back to Brambles.  That is an entirely Andar matter.

What his Honour Justice Dawson went on to say in Nicol was, at the bottom of page 624, the paragraph commencing:

All of this only goes to show the inapplicability in this case of the principle . . . Here there was no relevant statutory duty.

I know that I said earlier that there is no necessary magic in it.  We do not resile though from our point that the cases only disclose, apart from Justice Brennan’s remark, the application of this sort of principle in competing statutory duty areas.  There is no warrant for extending it.  The reason we say there is no magic in it though is to recognise the point that it is an analysis of the duties and the extent to which they impinge on each relevant person.  The source of them does not seem to be strictly relevant, although we, as I say, rely on the fact that his Honour here makes it important that it has to be a statutory duty.  Then his Honour says in the last sentence:

Even if the above principle can be applied in the absence of any statutory duty which . . . I doubt, it does not seem to me that the duty of an employer and an employee in such regard can ever be coextensive or co-terminous.

And then his Honour, commencing with the sentence “The duty is that of the employer” down to the middle of the page, just before the paragraph “That was not” – I will not read it out, of course – that is the summary of what we say the better analysis is of the answer to the appellant’s analysis of this principle.  His Honour is not saying, of course, here, although he is very close to it, there is no such principle.  His Honour is simply pointing out the very severe limitations on it.  We say, properly analysed, those limitations are so extensive that it is not really a principle at all.  It is simply an observation about what the factual circumstance will often be where you have competing statutory duties, and not much more than that.

There are a couple of very minor matters, your Honours, I think I have not pointed out but I should point out.  I should point out that there is a passage at the top of page 626, down to about point 4, the paragraph finishing “rise to that fault”.  His Honour makes, with respect, valuable points about the different kinds of duty that attach to the same person, which, in some sense, is an answer to Justice Kirby’s point.  His Honour emphasises that when he has his managerial hat on, that is a different entity speaking, with different obligations impinging upon him and moving outwards from him.

We do have to say though, keen as we are in adopting Justice Dawson’s analysis, we would not go so far as to adopt his analysis on contributory negligence which starts halfway down page 626.  It would seem to be inconsistent, with great respect, to the rest of his Honour’s analysis.

HAYNE J:   Or, at least, forensically very inconvenient for Brambles.

MR FINCH:   From a forensic point of view, we are still very keen on Justice McHugh’s observation, that we should not have been negligent in the first place, but there is not much we can do about that now.  It does seem though ‑ ‑ ‑

KIRBY J:   That has nothing to do with the case, Mr Finch, with all respect to everyone else.

MR FINCH:   It will just be very hard lines if Brambles was not meant to be negligent but we have to wear it, because Andar would not be, in the same circumstances, or very similar.  On a serious note there, though, it does appear, if his Honour Justice Naughton’s analysis is right, that should not exclude, in fact, contributory negligence.  That analysis comes, as I have said, at a later stage, analysing a different set of obligations, breached in a different way.  Can I very briefly deal with Shedlezki, your Honours.  I hope your Honours have a copy of that.

GUMMOW J:   Is that referred to in the joint judgment of Nicol?  It was not, was it?  It was certainly cited.

MR FINCH:   Yes, I do not know that the joint judgment ‑ for the reasons that I have said – because they did not need to grapple with it – referred to it at all.  I looked for that the other night.  It is not referred to.  As your Honours no doubt noted, Chief Justice Mason, 17 years earlier, was the dissenting judge in Shedlezki.

GUMMOW J:   Yes, it is unlikely to have been referred to with approval in the joint judgment in Nicol. 

MR FINCH:   We do say that there is no warrant for assuming, simply because his Honour acquiesced in that single sentence, that his Honour had departed from his earlier, very persuasive, view in Shedlezki.  Shedlezki was, importantly, of course, a case of competing statutory duties which were imposed both on the bakery company and Mr Shedlezki, the employed baker, who was the director of the company.  He was in charge of the system of work.  The majority recited – if your Honours turn to – just to make good my point to the Chief Justice, I think that the remark that is quoted in some of the authorities as being in the opinion of the Chief Justice in fact appears at page 379 of the report, in the course of argument, but not in the judgment.  It does not matter terribly much.

Justice Asprey wrote the decision, with which the Chief Justice agreed.  Your Honours see, just as a matter of fact, at the middle of page 383, between C and D, where it is confirmed that it was the same statutory duty which attached to each of Mr Shedlezki and to the bakery company.  Their Honours then recite the duty in terms which, with great respect, are completely accurate, and then at about page 384F, their Honours say:

But if the employer can prove that the only act or default of anyone which caused or contributed to the non‑compliance was the act or default of the plaintiff himself, he establishes a good defence.

Then over the page – again, I am very conscious of time slipping by, but 385 is an important part of their Honours’ decision.  Their Honours there look carefully at the sort of qualifications which apply on this so‑called principle.  For instance, if your Honours look between B and C, to rely on this defence:

it would have been necessary for the defence to have been successful for the defendant‑employer to attempt to show, for instance, that the proper equipment was provided by it and adequate instructions, where requisite, were given for its use – 

that is, you do not just identify the same duties.  You go beyond that and look at the additional duty of the employer.  Then all their Honours do, we say, though, having done that, is simply to say, but here Mr Shedlezki was it.  He was the person engaged on behalf of the company to do it and, notwithstanding the separate existence of the company, that was fatal. 

With great respect, we say that that result is wrong.  The better chain of reasoning was that disclosed in the dissenting judge, Justice Mason’s judgment, that the result ought to have been that Mr Shedlezki won.  Again, I will not drag your Honours through Justice Mason’s judgment, but his Honour at 386 – can I just flag a couple of points – at D and E acknowledged all the proper things about the same duties, acknowledged at the bottom of that page “the same person” point, if I can summarise it that way. 

Then his Honour makes a number of, with great respect, very important points, over the page at 387.  Your Honours may recall the regime that were here, but, if your Honours do not, I do not think it is necessary to drag you through it.  At about point B:

It was the purpose of the statute to impose the requirement prescribed by s. 33 as a protection to the operator against an accident of this kind.

Then, most importantly, ticking a number of boxes, first:

Contributory negligence is no defence to an action for breach of statutory duty and, having regard to the character of the plaintiff’s careless act in disengaging the clutch – 

your Honours may remember what happened was Mr Shedlezki rather bravely reached into the dough‑cutting machine and, as he did so, his knee brushed against the clutch and he lost some fingers –

in lieu of switching off the power, it is not possible to say that this act was the sole cause of the injury which is independent of the breach of duty under s. 33 occasioned by the absence of adequate fencing.

So his Honour was there making it quite clear there was still a difference.  They had the same obligation, but that was not to say, though, that they could not perceive differences in the manner of discharge of that same obligation by each of the employer, on the one hand, and Mr Shedlezki, on the other.  His Honour then recites the question, which is live, between C and a little after D, “The question for decision”.  I will not read it out, but it is the question which has been ventilated today. 

Importantly, in dealing with the United Kingdom legislation which lay behind some of the authorities, his Honour makes an interesting point.  Over the page at 388, his Honour goes in great detail through Ginty.  Then at the bottom of the page:

One has to inquire whether the fault of the employer under the statutory regulations consists of, and is co‑extensive with, the wrongful act – 

and his Honour recites again “the going beyond point”, which I have said before.  Then – and this is a point which is picked up in the text reference which I took your Honours to – at about 389B:

It is to be observed that the exposition of principle to which I have referred does not assert that there is no breach of duty . . . Rather do they assert that although there is a breach by the defendant of his statutory duty, that breach cannot be regarded as the cause of the injury, because in the circumstances the misconduct of the plaintiff is such as to warrant it being characterized as the sole cause – 

His Honour then sets out three reasons why the principle could not be relied on in this case, each of which we would rely on here.  Summarising them, it has to be established that:

the defendant has done all that could reasonably – 

have done.  We say, no, and you do not get out of that obligation, as I said in answer to Justice Callinan, by simply pointing to the fact of sole employee status on behalf of the person to whom you have delegated that obligation. 

A similar point is made in the second point, and then, thirdly, and perhaps most interestingly, his Honour says:

the principle goes to the question of causation –

this is about 389F – 

it assumes that there has been a breach of duty by the defendant, but denies to that breach the character or quality of a contributing cause.

Dropping down a couple of lines:

it may be seen that the real and substantial cause of the injury was the plaintiff’s misconduct, the defendant having taken all reasonable steps – 

Then, most importantly – the bottom three lines:

Although the defendant company could act only by its servants and agents – 

which is Justice Callinan’s point to me – 

there seems to be no justification for concluding as a matter of law that the defendant’s breach of duty in the circumstances of this case was not a contributing cause to the injury merely because the responsible servant of the defendant failed to see to the performance of that duty on its behalf, it being the responsibility of the defendant to provide the equipment necessary for the operation of the machine in accordance with the provisions of the statute.

Now, if one is going to apply it to common law, as opposed to this statutory circumstance, one need only substitute words other than “provide the equipment necessary” with other words.

GLEESON CJ:   Mr Finch, we only get to this problem, do we not, because of a finding – perhaps a lucky finding – that there was no safe system of work provided by Brambles and no safe system of work ‑ ‑ ‑

MR FINCH:   By Andar. 

GLEESON CJ:    ‑ ‑ ‑ on the hypothesis that there is no safe system of work provided by Andar. 

MR FINCH:   Yes.

GLEESON CJ:   If all that was involved was an act of negligence on behalf of Mr Wail, then neither Andar nor Brambles would be liable, because we are not concerned about vicarious liability of either Andar or Brambles to some third party who was injured as a result of a negligent act or omission of Mr Wail. 

MR FINCH:   Yes.

GLEESON CJ:   So there has to be more than a mere negligent act or omission on the part of Mr Wail, otherwise this problem does not arise. 

MR FINCH:   Yes.  We say, firstly, as to Brambles, one has to accept that there is the finder of fact, the jury has decided there is.  As to Andar, we have already made our submissions about why it is liable, both for similar reasons, but for additional and different reasons, for negligence as well.  But, your Honour, with the greatest of respect, is quite right.  If the buck stops at Mr Wail and it is only he who has been negligent, then the reason we are here disappears.

Can I finish off with this section, because there is an interesting point that his Honour does make, and I promise I will stop reading it in a moment.  His Honour does make an interesting point about the genesis of the sort of reasoning that was in the UK cases.  On page 390, between B and C, his Honour recalls that the Parliament of New South Wales had:

not only imposed on the defendant an absolute duty . . . but it has also declared with the utmost clarity . . . that contributory negligence is not a defence . . . In this State, therefore, the provisions of the 1945 Act, read in association with the Act of 1912, provide a different foundation for reaching conclusions based on considerations of irrationality and injustice. 

The reason I highlight that is perhaps it is a further matter that I should draw to Justice Hayne’s attention, when grappling with what it is and why it is that the UK decisions reached the conclusion that they did.  What his Honour says, we say, with great respect, quite rightly:

In my opinion that statutory foundation is inconsistent with the development of an extension of the principle applied in Boyle v Kodak.

We would say, with great respect, it is not only the extension, it is the existence of it at all.  Now, his Honour then poses some interesting questions, just by way of testing the proposition, which I will not read out, at the bottom half of page 390.  His Honour gives a persuasive analysis of Sherman’s Case, which was really a correct analysis – an independent and exclusive act case.  In a sense, the same, but a version of the factual situation that his Honour the Chief Justice just put to me.  If it is just the employee, then you are in a different line of territory.

Can I move on from Shedlezki, your Honours.  The other cases are dealt with in our written submissions, and I will not test your Honours’ patience by reciting them all.  We have said in the written submissions why it is not sufficient for the appellant to rely on, for example, the three major cases that they call in their aid today, which are Rauk’s Case, Ashrafi and Steele.  None of those cases, in fact, support the propositions for which the appellant contends.  Rather than going through all of them, can I just pull out the very small – it is just to flag where it is that your Honours find the reasons why they do not help.  Do your Honours have a copy of the decision in Rauk?

McHUGH J:   Yes, it was given to us yesterday.

MR FINCH:   Yes, I think your Honours did have it given to you.  I think that each of those decisions has been given to your Honours.  Rauk was a decision of Justice O’Keefe, in the New South Wales Supreme Court.  Again, I will not go through the rather lengthy recitation facts necessary to fully grapple with it.  Mr Rauk was employed by a company as a fitter and mechanic, and that company supplied his services to a company called Transtate.  On the occasion in question, Transtate got Mr Rauk to do something essentially outside his field of competence.  He was moving a large girder for the purposes of welding it.

GLEESON CJ:   Paragraph 84?

MR FINCH:   Yes, your Honour.  The relevant bits for your Honours to look at very briefly are perhaps simply those parts starting at paragraph [80], under the heading “CROSS CLAIM”, up to and including [85].

GUMMOW J:   We did that yesterday.

MR FINCH:   Yes.  Just as I say, it is just to point your Honours to it, and carefully analysed ‑ his Honour simply did not correctly analyse, we say, the state of the law.  His Honour simply recited Shedlezki but did not notice, for instance, that Shedlezki was a statutory duty case, as opposed to this particular case.  His Honour made a number of points along the way about Restile, that is, the employer, having nothing to do with the matters in question and was not required or able to.  With respect, his Honour just misses the point about all that.  It is simply not an answer to the question of the employer’s liability.  If they failed to do it, they failed to do it. 

It is no answer to say, “Well, Transtate did not ask me to do that”.  They have an employee who is being deployed in a certain way.  They have an obligation to provide him with a safe system of work.  It simply does not follow, with great respect, to say that the employer had nothing to do with those matters and was not required or able to.  They were required to.

GLEESON CJ:   I am afraid I am in danger of losing sight of this again.  What was the fault of Brambles?

MR FINCH:   The fault of Brambles in this case was – we assume, the jury found – to provide to Mr Wail trolleys which were too heavy on the occasion and thus difficult to manoeuvre without injury, were liable to be difficult to move because of a tendency of the wheels not to line up, and were liable to become jammed when deployed in the truck in the way in which they were usually deployed, in the system of work which had formerly been that solely of Brambles.  So it was said against them – there is a number of particulars, and one, again, does not know particularly why it was that the jury found them negligent.

Your Honour recalls, though, the gloss on that, which my learned friend assisted your Honours with, was that Brambles also said they had a person who was directing drivers or could direct the drivers in the way in which they carried out those duties.  Now, that ‑ ‑ ‑

GLEESON CJ:   What was the content of the duty that Brambles owed to Mr Wail?

MR FINCH:   One assumes the content of the duty was either to provide him with trolleys which did not have those characteristics, or, assuming that the trolleys had those characteristics, to provide him with such instruction or equipment or other devices so that they would not injure him when he used them in the normal course of the job.  Again, one can imagine it might be by saying, “Make sure you tie them up tight, so they don’t move.  Make sure the wheels are lined up, make sure they are not jammed.  Even if they are not broken, they can still get jammed”.  It is in that area that one assumes ‑ ‑ ‑

GLEESON CJ:   But it was a failure to take reasonable care for his safety?

MR FINCH:   Yes.

GLEESON CJ:   By providing ‑ ‑ ‑

MR FINCH:   A system of work which included directions such as the ones I have just recited, or ‑ ‑ ‑

GLEESON CJ:   He was not their employee. 

MR FINCH:   No.

GLEESON CJ:   By providing his employer?

MR FINCH:   Yes.

GLEESON CJ:   With equipment that was safe to use?

MR FINCH:   Yes, or providing his employer, under clause 5.2, with assistance to develop that employer’s own system in using Brambles trolleys with the characteristics they had.  Of course, as your Honour points out, Brambles was not the employer, so simply one is looking at a general duty of care there, but there is no reason to say in these circumstances that Brambles, for instance, could ignore the system that Andar had, because they were interfacing directly.  Brambles knew that Andar took the trolleys from it and deployed them in certain trucks and were sent to hospitals with certain characteristics.

It was, we say – I am arguing against myself, of course – we say Brambles was not liable – but it was plainly thought by the jury that Brambles had failed to discharge its duty of care, either by providing trolleys with the characteristics that they had, or by providing those trolleys in the absence of a warning to Andar that they should only be used in certain ways to avoid injury to Andar’s employees, and/or by providing Andar with such other assistance as it might need, or providing the drivers directly with such assistance as they might need, to avoid injury in other ways by a supervision or instruction or by equipment or some other way. 

It is difficult, I confess, your Honour, because I am speculating about what the jury thought, and I can only speculate within the four walls of the particulars that were provided to them.

KIRBY J:   You did not move for a verdict?

MR FINCH:   We did, yes.

KIRBY J:   Did you?

MR FINCH:   Yes.  I will get the reference.  It is actually recorded ‑ ‑ ‑

GLEESON CJ:   At all events, that is not an issue in this Court. 

MR FINCH:   No.

CALLINAN J:   If the contract point had been decided in your favour ‑ ‑ ‑

MR FINCH:   At trial?

CALLINAN J:   Yes.  What would have followed?  That would have been the end of the matter? 

MR FINCH:   Yes.

KIRBY J:   You are entitled to indemnity?

MR FINCH:   And we say that follows here, too.  We ‑ ‑ ‑

KIRBY J:   That is why it logically comes first. 

MR FINCH:   It does.  I am doing it backwards, for the reasons I ‑ ‑ ‑

GLEESON CJ:   That is what has happened in the Court of Appeal. 

MR FINCH:   Yes.  The Court of Appeal decided the contract in our favour and said we do not need to look at ‑ ‑ ‑

GLEESON CJ:   Now, does that bring you to the just and equitable argument?

MR FINCH:   Yes, just about.  I have a couple of small boxes to tick, yes.  I will not drag your Honours through Ashrafi and Steele.  They simply are not persuasive, for the reasons we have said in our written submissions, and I will not go back across it.  Just before, though, I come to the contract, can I deal very briefly with the windfall argument.  There was some confusion in our minds about what seemed to be a melding of the windfall argument, in our learned friend’s submission, and the argument for exemptions.

Can we say just very briefly what we say about it.  The proposition is that Mr Wail’s damage was reduced by 35 per cent because of his contributory negligence, therefore, that the negligence of Andar has already been taken account of.  We make the same answer to that proposition as we have already made – if I can call it the mantra that we recite.  It is a different duty, it is a different negligence.  It is not the same deduction.

CALLINAN J:   But say if it is, what is your answer if it is?  Is the agreement an answer to that?

MR FINCH:   If it is, then one takes account of it when one looks at the degree of contributory negligence that might be extracted from Mr Wail in any suit that he mounts against Andar because it is the obligation first to consider his case against Andar, and then to consider any contributory negligence that Andar might be able to establish against him, and one looks at the net result of that exercise.  He would not necessarily fail in his suit against Andar; it is just that his damages might be reduced.  We say in these circumstances, the factual circumstances that applied here, it is simply impossible to say - one could not say - that the damages were equivalent, because the duties are so different.

CALLINAN J:   I understand that but I am anxious to understand what the position is if that proposition is not accepted, and I do not think I fully do at the moment.

MR FINCH:   Yes.  Our first point is perhaps a generic one.  We say that the circumstances simply are impossible to imagine in a common law area where they would be coextensive.

CALLINAN J:   But I am asking you to make the assumption that they are.  What follows then?

MR FINCH:   Then you would establish contributory negligence in the order of 100 per cent.

CALLINAN J:   And?

MR FINCH:   Then Mr Wail would not recover any damages in respect of his successful suit against Andar for negligence.

CALLINAN J:   So the position of Andar’s claiming contribution from you just does not arise because Andar is not liable.  Is that right?

MR FINCH:   It is the other way around, where Brambles is claiming contribution from Andar.

CALLINAN J:   Sorry.

MR FINCH:   But Brambles does not get assisted by any of that.

CALLINAN J:   But the agreement then comes into operation, does it not?

MR FINCH:   Yes.

CALLINAN J:   So the agreement would be an answer in that situation?

MR FINCH:   Yes.

CALLINAN J:   If your interpretation of the agreement is right, it is an answer to all of the propositions, no matter what view one takes as to the ‑ ‑ ‑

MR FINCH:   Yes, 822 works without fault.  The short answer to your Honour’s question is yes.

CALLINAN J:   You rely also upon the presence of fault or negligence in 4.6 as indicative of ‑ ‑ ‑

MR FINCH:   Yes, I will deal with that as briefly as I can in a moment, but the answer to your Honour’s question is yes.

CALLINAN J:   It is there in 4.6.  That argues against reading it into clause 8.

MR FINCH:   The parties knew how to do that.  In 822 they did not do that; presumably they meant not to do that.  Also, we say the wording generally is appropriate to establish that conclusion.

I will not go back through the facts of AWA v Daniels that was called in aid of the windfall argument, but again, it was an illustration of precisely the principle we say.  When Mr Hooke’s negligence was taken into account it was expressly taken that when he did those things that were negligent that was AWA, though it is not on all fours with this case at all.  Our case is to maintain and illustrate the distinction between contributory negligence, the integers of which were different to the integers of Andar’s negligence.  In AWA it was the express basis of the decision that that distinction was not being made.  It was expressly a different basis of decision.

KIRBY J:   If you are going to criticise Ashrafi we had better have something on that in the presence of Justice Heydon.

MR FINCH:   I hasten to add that it is not critical ‑ ‑ ‑

KIRBY J:   We have only been favoured with one page and it looks pretty good to me.

MR FINCH:   Yes, his Honour Justice Heydon in those circumstances was grappling with a very different factual circumstance ‑ ‑ ‑

KIRBY J:   It certainly was a bizarre factual circumstance.

MR FINCH:   It was, the sleeping in the motel business.  His Honour was there simply reciting what the majority said in Nicol, but his Honour did not have to and did not grapple with what that meant in circumstances that apply here.  It simply did not get raised for consideration and his Honour spent no time on it at all.

GLEESON CJ:   Did we not refuse special leave in Ashrafi?

McHUGH J:   Yes, we did. 

MR FINCH:   I do not remember.

GLEESON CJ:   The woman who got banged while sleeping in a hotel.

MR FINCH:   Yes.

GLEESON CJ:   We refused special leave in that case.

MR FINCH:   On the exemption point, we have dealt with it in our written submissions.  Can I just recall to your Honours’ minds in case it slipped your Honours’ attention, the exemption point as presently raised has not been raised before.  It was not raised at trial and was not raised in the Court of Appeal.  But again the exemption point fails, we say, because Andar does not just inherit the Brambles system; it has more to do.  It must have more to do because in fact it does do more.  It does more things and different things.

I am trying to say this in as summary terms as I can.  There were a number of suggestions I think this morning to the effect that some of the authorities perhaps support the proposition that as a matter of law you could not get an exemption in certain circumstances.  We would not go so far, with respect.  One simply says in certain circumstances you will not get it, and it is as simple as that.  It needs to be stated in a way no higher than that and where, as here, you identify two causes, Andar/Brambles, you then have to grapple with what each of them did, conditioned by the duty which impelled them or obliged them to do those things.

As I have said before - I will not repeat myself - we say if one does that comparative analysis, Andar in fact has the greater share of responsibility because it was the one operating the workplace when the accident and where the accident happened, not Brambles.  An example, we say, of a proper approach to the exemption point is in Sinclair v Arnott.  We have referred to that and I will not take your Honours through that.

Mr Williams reminds me there was a deal of discussion which occurred for the first time in this Court about the decision in Rolls Royce, and indeed the decision in this Court in Amaca, which of course was on appeal from Rolls Royce.  We had not responded to that in our written submissions, nor in our prepared oral submissions, because it was not raised in the matters that were apparently for discussion today.  It may assist your Honours – it may be probably going too far – but the whole discussion of the ramifications of exemption and how that might arise and the limitations of it were covered very extensively in the written submissions in Amaca, which your Honours may recall.  If it is of assistance, I have had copies made of those written submissions just to remind your Honours of what it was that informed your Honours’ decision in Amaca.  As it turned out, the point did not arise for decision because the appeal was disposed of in slightly different grounds, but if your Honours were assisted by a longer discussion of the background to exemption, then we do have those written submissions available.

GLEESON CJ:   All right, it may be useful to hand those up.

MR FINCH:   Can I turn to the contract matters.  Unless your Honours want me to take a long time on the new agreement point, I do not intend to take a very long time about that.  We simply say that the contract was for a term of three years.  It was expressly an arrangement pursuant to which the truck was made available by Andar on the express basis set out in clause 1, that is, that it was on the terms incorporated in the agreement.  There is no warrant for departing from what was a finding of fact by the trial judge that the parties by their conduct demonstrated an agreement between themselves in the same terms, apart of course from the term of three years, because one could not necessarily ‑ ‑ ‑

GLEESON CJ:   This is of marginal, if any, relevance, but did Brambles sell the truck to Andar?

MR FINCH:   Yes.  Andar purchased the trucks, in fact both of them, I think, from Brambles.  The evidence is, and again it is not strictly relevant, that Andar then sold the trucks with the runs attached for a profit - plainly not to Brambles.

KIRBY J:   I was thinking of that earlier in the day.  The findings of the primary judge were really findings on an interpretation of the agreement, were they not?  Is the issue not one of interpretation?

MR FINCH:   Not insofar as new agreements are concerned.  His Honour found because of the conduct of the parties that they had agreed that there would be a new agreement.  He was not interpreting the old agreement to that effect.  He was saying, given that you proceeded to deal with each other in precisely the same way as you had before with no change ‑ and I am expatiating a little bit larger than his Honour; his Honour was commendably concise – that there was no warrant for assuming that the parties had decided that the truck would be provided on any terms different to those upon which they had previously agreed.

To pick up an expression used by my learned friend, if one is looking for an implication about a new contract and one circles for what terms might be commercially efficacious, one knows what terms are commercially efficacious; the parties have already agreed on them three years earlier.

KIRBY J:   That included a term which modified the legal entitlements of a party.  I thought there was a principle of the common law that if you are seeking to take away a party’s rights, it has to be specifically agreed to.

MR FINCH:   They did specifically agree to it when they signed up for ‑ ‑ ‑

KIRBY J:   They did for the three years.

MR FINCH:   Yes, your Honour, but once you have agreed to it the two things you know are, one ‑ ‑ ‑

KIRBY J:   Why bother to have the term about renewal of the contract?  Why not just have it indefinitely?  The fact that they included that indicated that they intended that they would address their attention to an extension, and apparently they did not.

MR FINCH:   Yes.  One may accept readily the proposition that without agreement one would be slow to imply a term such as clause 8.  The two things the Court knows are that the parties did agree on clause 8 when the agreement was first entered into as part of the terms and conditions pursuant to which the truck would be made available.  All we are saying is that the trial judge was quite right to infer from the conduct of the parties that they intended that a new agreement supplant the old on the same terms and conditions because there was nothing about their conduct which would suggest to any reasonable arm’s length observer that one or other ‑ ‑ ‑

KIRBY J:   Did the primary judge address his attention to the principle that a party is not taken to have surrendered its rights at law?

MR FINCH:   No, not expressly.  His Honour did it in a rolled‑up way by saying, “I look at the conduct of the parties, nothing changed.  I infer that the parties entered into a new agreement in the same terms as the old”.

KIRBY J:   Because in fact what is happening is that one party is taking over the civil liability of another, although the law imposes that liability on the other.  It would seem to me that that has to be expressly and clearly accepted, not simply assumed.

MR FINCH:   We say, firstly, it has expressly clearly been accepted.

KIRBY J:   It was for the primary period, not for the secondary period.

MR FINCH:   But no matter what is in the original agreement, the only question is then:  has that original agreement been supplanted by another in its terms as a matter of ‑ ‑ ‑

KIRBY J:   No, because the original agreement was for a term and the term expired.

MR FINCH:   Yes, and the only question we say which arises is:  what was it that supplanted that agreement when it expired after three years?

GLEESON CJ:   No, the question is: what were the terms and conditions upon which the parties were dealing with one another when they continued to deal with one another?

MR FINCH:   Yes, and we say that the only solution to that question can be the same as the ones they had agreed on before, because if one is searching for ‑ ‑ ‑

GLEESON CJ:   What are the competing possibilities?

MR FINCH:   The competing possibilities are, we say, either the terms and conditions as before, save for a three year period perhaps, or an ad hoc arrangement with no terms and conditions at all.

HAYNE J:   That cannot be so because there is money changing hands and there is work being done, so there has to be some terms and conditions.

MR FINCH:   The problem with that is, as I say, it is an ad hoc arrangement.  Presumably every time they turn up at the gate there is an implied term that they will be paid at the same rates as they did before.  The problem with that is it was not a fee for service arrangement.

GLEESON CJ:   That seems to me to be the two competing possibilities.  Either they were dealing with one another on the same terms and conditions as before, or they were dealing with one another on no terms and conditions, leading to a quantum merit claim.

MR FINCH:   Yes.

GLEESON CJ:   I find difficulty with the proposition that they were dealing with one another on all the terms and conditions except clause 8.  If you look at clause 12, for example, you will find that it is an even more unlikely clause that you would imply without an express agreement.  That is the one, I think, about a power of attorney.

MR FINCH:   Yes.  If one asks this question, was there anything about ‑ ‑ ‑

GUMMOW J:   What terms were they dealing with one another as to termination?

MR FINCH:   We say that that would be the same as is in here.

McHUGH J:   What, three years?

MR FINCH:   No, that is renewable, your Honour, that is the termination of the whole agreement.  There was an extra set of clauses about termination.

GUMMOW J:   At page 170.

MR FINCH:   Yes.

GUMMOW J:   According to that, the only termination the operator would have would be under 12.2, would it not, in the unlikely event that Brambles went into liquidation or went out of Victoria?

MR FINCH:   Yes.

GLEESON CJ:   Clause 11 is the one about the power of attorney.

MR FINCH:   Yes.  We say there is no reason for supposing that the parties intended that any of these clauses disappear as part of the arrangement.  One asks this question:  is Brambles to be thought, for instance, to have given up the various rights it had to direct various sorts of performance?

HAYNE J:   But are you espousing a purely subjective inquiry?  Are you saying that the question is one about the objective interpretation that is to be placed upon events which have occurred?

MR FINCH:   Yes.

HAYNE J:   It may well be a yes.

MR FINCH:   The objective interpretation of the evidence as to the continued performance by each party in precisely the same manner as they had performed before.

GUMMOW J:   For what term?

MR FINCH:   We say that one could perhaps allow that the term agreement had not been agreed because you could not tell from the continued performance that they had agreed that that would persist for another three years.  We would accept, and indeed we originally pleaded, as I recall it, that it was on the same terms and conditions, which would include a three-year term.

McHUGH J:   Assuming that the proper construction is that it is terminable on reasonable notice, that then makes it difficult to incorporate clause 12 in, does it not?

MR FINCH:   It is not impossible, your Honour.

HEYDON J:   You could activate clause 12 even without reasonable notice.

MR FINCH:   Yes, clause 12 might work, whether you have given reasonable notice or not.  It is just an additional way of termination.

KIRBY J:   You have quoted some exotic cases on this, I think.

MR FINCH:   In our written submissions.

KIRBY J:   The Indiana Supreme Court.

MR FINCH:   The Court of Appeal did and we have enthusiastically adopted their analysis, your Honour, yes.  But we say they are in uncontroversial terms.  It is not dissimilar to the holding-over cases about leases and the like.

KIRBY J:   I would be happy with all this except that you are trying to extend it to a term which really removes entirely a party’s rights and says that they have to indemnify you for your ‑ ‑ ‑

MR FINCH:   We understand, with respect, your Honour’s reticence about such a term, but we say the difficulty is that that postulates an agreement on most but not all of the terms, leaving out, for instance, clause 8 because of its effect, because of the way in which it operates.  There is nothing about the way in which it operates which is inconsistent with the parties agreeing about it; we already know they have agreed about it.  There is nothing inconsistent, we say, with such a clause being part of an agreement ‑ ‑ ‑

KIRBY J:   Is it not like a limitation clause?  The law has tended to look on those clauses with a degree of strictness.

MR FINCH:   But nothing says that they cannot be implied.  It is a question of whether they are to be applied.

KIRBY J:   They can be, but why would one take a different view of this one, except on some sort of doctrine of continuity, than one would of other limitation on liability clauses which the law has traditionally looked on with a degree of hesitation?

MR FINCH:   If the parties came to this matter cold and had not signed the agreement and did not continue, one could ‑ ‑ ‑

KIRBY J:   But the agreement they signed was for the term.

MR FINCH:   Yes.

KIRBY J:   If you wanted to get the extra term you had to do a bit of negotiation.  That is what happens when people go out into the market and have workplace agreements; they are in the realm of negotiation.

GUMMOW J:   But you did not have to have negotiations, you had a right under clause 11.

MR FINCH:   Yes.

GUMMOW J:   Subject to a renewal at your discretion, not their discretion.

MR FINCH:   Yes.

KIRBY J:   This was your document, was it not?

MR FINCH:   I do not think there is any evidence about whose document it was.

GUMMOW J:   That is what the solicitor…..

KIRBY J:   It has all the look of a ‑ ‑ ‑

MR FINCH:   Yes, I did not want to extend the inferences in that document.

KIRBY J:   - - - written document that you propound to all those truck drivers who continue to wear your livery.

GLEESON CJ:   Is this subject to the Contracts Review Act or some similar legislation.

HAYNE J:   Not in Victoria.

KIRBY J:   I do not think Victoria has that enlightenment.

HAYNE J:   No.

MR FINCH:   Victoria is free of that constraint.

McHUGH J:   What about the Trade Practices Act?

MR FINCH:   Yes.

KIRBY J:   Do not wake that up.

GLEESON CJ:   It is not irrelevant, is it, because I thought a lot of the law about strict instruction of exclusion clauses took a turn.  Photo Production v Securicor I think was the case in which the House of Lords said that because of this remedial legislation you now do not have to stand on your head when you are interpreting express clauses of contract.

MR FINCH:   Yes.

GLEESON CJ:   But is the question that has to be asked whether or not – there are actually two clause 11s – but if you look at whether or not clause 11 on page 158 operated in this case, or is the question what may be a different question, and that is:  do you ask what a reasonable observer of the conduct of the parties would conclude as to the terms and conditions upon which they were agreeing to continue to supply and receive these services?

MR FINCH:   We say the latter, your Honour.  There are other ways that this case could have been put and it was not put.  For instance, one could imagine that one could construct a ‑ ‑ ‑

GUMMOW J:   Let me be clear about this.  You disavow clause 11 on page 158, do you?  We just have to know.  We have to write judgments.

MR FINCH:   Yes, I understand, your Honour.

GUMMOW J:   We cannot say Mr Finch seemed to flip‑flop.  We want to know where he ended up.

MR FINCH:   Well, I would prefer your Honour did not write that.  If your Honour looks at clause 11, it is productive of some difficulty.  It says:

Subject to renewal at the discretion of the Company.

The company being Brambles.  One would presume that it really means, if Andar asks, then Brambles may allow renewal, but it does not mean that Brambles may insist on renewal whether or not Andar wishes it.

GLEESON CJ:   No, it means, does it not, if Brambles is willing and, by hypothesis, if Andar is also willing.

MR FINCH:   Yes.

KIRBY J:   But it is “Subject” and “renewal”.  Unless it is renewed, at least arguably, the further term is not achieved.

MR FINCH:   Yes.  On further consideration it may have been hasty for me to disavow 11.  Perhaps they are not inconsistent though.  Where I said that it may be the product of an objective review of what the parties may be taken to have agreed ‑ ‑ ‑

CALLINAN J:   Like…..they both have to be willing.

MR FINCH:   Yes.

KIRBY J:   …..might be a bit suspicious, giving up all your rights.

MR FINCH:   It is perhaps a mixture, your Honours, because if you want to ask the question, “Do we call 11 in aid?”, one asks how do we prove that there has been a renewal of the discretion of the company?

HAYNE J:   Well, how else except by observation of the objective circumstances?

MR FINCH:   Quite.

HAYNE J:   There is no communicated offer and acceptance, we know that.

MR FINCH:   Yes.

CALLINAN J:   And offers of services on exactly the same basis and it is accepted and paid on exactly the same basis.

MR FINCH:   Yes.

CALLINAN J:   That is where you infer renewal, I would have thought.

MR FINCH:   The difference that it makes is if one objectively reviews the circumstances that the parties conducted themselves between each other, it is a renewal if it is an 11 circumstance.  It is a new agreement.  It is not ‑ ‑ ‑

HAYNE J:   Well, just as to the matter that Justice Kirby has mentioned about giving up rights.  This is agreement, if it is carried on into the future, hedges both parties’ rights about in particular ways.

MR FINCH:   Yes.

HAYNE J:   Some of those hedges are big, some of them are small, some of them are thick, some of them are thin.  It is in the nature of a contract that there are obligations both ways.  One of them happens to be an indemnity.

MR FINCH:   Yes, and the one thing your Honours know is that the parties agreed in clause 1.  What was the basis upon which this truck was to be made available?  The terms and conditions in here, good, bad, onerous, not onerous.

KIRBY J:   But if I can say so, we have to construe this particular very specific fact, circumstance and contract against what happens if this becomes a general rule.  That is what we have to do all the time.

MR FINCH:   Yes.

KIRBY J:   And you therefore have to ask, is it acceptable as a common law principle that you construe a contract that includes an indemnity provision, which is quite a burden on a party, where a party which is on the face of things propounding a form document which contemplates renewal, does not bother to do it, and then you fix another party with a very significant diminution in its rights at law.

MR FINCH:   Yes.  We say that the alternative does more violence to a proper analysis in the circumstance, that is, that there was no arrangement between the parties other than an ad hoc arrangement, when they turned up, that they would be paid in due course at some rate.  The difficulty would be at what rate?  This, as I say, was not a fee‑for‑service arrangement.  There had to be time at the expiry of which a certain amount had to be paid to Andar.

GLEESON CJ:   Well, just a minute.  This comes back to a question I asked this morning about the meaning of the first line of clause 1 of this agreement.  What was going on here was that a truck with the name Brambles written on it was turning up at hospitals and being provided with work.

MR FINCH:   Yes.  Well, turning up at Brambles and being provided with work to deliver to the hospitals.

GLEESON CJ:   Yes.  As a result, no doubt, of contracts that Brambles had with the hospitals and so forth.

MR FINCH:   Yes.

KIRBY J:   Well, one might say there is no doubt that an agreement has been continued.  The question is, as far as I am concerned, only whether it includes…..and that is the question we are debating.

GLEESON CJ:   Now, my question to you is what is the meaning of this expression in the first sentence of clause 1?  I asked Mr Jackson the same question this morning and he rather answered it by saying it looks as though it is somebody’s drafting mistake.  But you see it says:

The Company and the Operator respectively agree to make the Vehicle available for use ‑

What is the meaning of that concept of the company for its part agreeing to make the vehicle available?

MR FINCH:   It has no rights over the vehicle.  It has no control over the vehicle at all.  To the extent that it has content, perhaps it is just that Brambles and Andar agree that Andar will make the vehicle available ‑ ‑ ‑

HAYNE J:   Or that Brambles will give Andar work.

MR FINCH:   Yes.

HAYNE J:   No?  Brambles will give Andar work?

MR FINCH:   No, that is not – no.

HAYNE J:   No?

MR FINCH:   All it says is that they agree to make the vehicle available because – that Brambles would give them work, perhaps a little more, that appears from other parts of the agreement.

McHUGH J:   The vehicle was not under lease from Brambles, I take it.

MR FINCH:   No, it was purchased ‑ ‑ ‑

GLEESON CJ:   It had Brambles name on it.

MR FINCH:   It was painted with Brambles’ logo, yes.

GUMMOW J:   Is there any contractual provision about that?

MR FINCH:   I cannot recall whether there was a contractual ‑ ‑ ‑

McHUGH J:   Yes, clause 3.2, is it not?

MR FINCH:   Yes.

GLEESON CJ:   Now, I come back again to what are the competing possibilities.  One possibility is that the agreement continued in effect with all its terms.

MR FINCH:   Yes.

GLEESON CJ:   Another possibility is that the agreement went and there was simply an ad hoc arrangement under which, as Andar turned up from time to time, it became entitled to be paid.

MR FINCH:   Apparently in connection with invoices which it would regularly send, under a timetable which no longer existed.

GLEESON CJ:   Has anybody ever contended that there is an intermediate possibility under which the agreement continued on some of the terms but not others?

MR FINCH:   No, your Honour, not that I am aware of.  I do not recall that being raised in any of the transcript I have read or recorded in judgments.

GLEESON CJ:   Well, clause 3.2 would be a good example of that, would it not?

MR FINCH:   Yes.

CALLINAN J:   Presumably the amount agreed, $1,600 a week, takes into account the cost of insuring against the provision of an indemnity.

MR FINCH:   One must assume that Andar has put its house in order in that respect, yes.

CALLINAN J:   There is no reason to assume that the money and other terms of the contract do not take into account ‑ ‑ ‑

MR FINCH:   Whatever it is.

CALLINAN J:   ‑ ‑ ‑ the foregoing, as Justice Kirby has put to you, what would otherwise be a right.

MR FINCH:   That is why we say it is important to observe that there is nothing which indicates that the parties departed from their previous arrangements.  That is, Andar, for instance, did not suddenly start to charge less because it did not have to give an indemnity any more and, therefore, it could cover itself with less insurance ‑ ‑ ‑

KIRBY J:   Well, Mr Finch, it is just a matter of whether the law as a matter of principle or policy says, if you want to get a party to surrender its rights at law, it has to be on the line, it has to be agreed, it has to be specific.  I thought, fondly, that that was what the law said about restricting ‑ ‑ ‑

MR FINCH:   We say there ought to be no special rule applied here, apart from the rule which governs the question of whether the parties agree ‑ ‑ ‑

KIRBY J:   Maybe it should apply.  Maybe there should be a special rule.

CALLINAN J:   Also Andar got, I think, territories 35 and 38.  We do not know anything about those, but they may have been choice territories.

MR FINCH:   Your Honour knows they were sold for a profit – the trucks and the runs were sold for a profit ‑ ‑ ‑

CALLINAN J:   I did not ‑ ‑ ‑

GLEESON CJ:   Is there any provision of this agreement that does not modify the common law rights of the parties?

MR FINCH:   That does not?

GLEESON CJ:   Yes.  I thought the contract did.

MR FINCH:   I am not sure I can answer that question.  Sorry, your Honour?

GLEESON CJ:   I thought that is what contracts did, modified rights.

MR FINCH:   Yes.

KIRBY J:   Well, they define – they define the rights.  It is only 8 that gives them all away.

HAYNE J:   If we are going to…..special formalities, let us dig out all the statute of frauds cases and let us dwell a moment on Charlick v Foley Bros 21 CLR in this Court about insistence on special formalities for such obligations.

MR FINCH:   It is difficult to identify, to answer the Chief Justice’s question, any provision which does not modify albeit common law rights

KIRBY J:   Yes, but 8 is surrendering in saying, “We will be responsible to indemnify you”.

MR FINCH:   Yes, and 3.2 ‑ ‑ ‑

KIRBY J:   Normally that requires a statute.

McHUGH J:   Sometimes you do.  Justice Kirby and I were on the Court of Appeal in a case called Empirnall Holdings v Machon Paull Partners.  We held that by implication there was a contract under which a firm was given security over land.  There was evidence that, if I remember rightly, one party would not sign the contract.  His employee said, “Eric doesn’t sign contracts”.  We held nevertheless that by a course of conduct he was bound by the contract.

GLEESON CJ:   Take that, Eric.

KIRBY J:   That was securing Eric’s rights, not giving them away.

McHUGH J:   No, it was taking them away from Eric.

MR FINCH:   I do not want to repeat myself.  We say that there are onerous obligations.  There are less onerous obligations.  There are things which you would do which you would not otherwise do which are agreed to by the parties which they continued to do.  They continued to use a truck with a logo painted on it.  They continued to turn up.  They continued to act at the direction.  They continued to go to the places Brambles told them to.  If it was not pursuant to this arrangement, we ask, more than rhetorically, “What arrangement was it pursuant to?”  An ad hoc arrangement does not explain that conduct, we say, and there is no sensible middle ground.  Otherwise your Honours are stuck with this exercise, which are the clauses which impact in an adverse sense on Andar?  Let us cross them all off and assume that the parties have agreed to the continuation arrangement which only has benefits to Andar.  Why rhetorically would your Honours assume that that were the case, or infer that that were the case from the facts?  Why is Brambles to be thought to have given up things which benefited it but Andar is not thought to have given up things which benefited it?  It seems to be a differential approach to the sort of approach that Justice Kirby is suggesting to us which is not warranted.

GUMMOW J:   You do however have to cope with the proposition that one does not construe these indemnity provisions all that widely.

MR FINCH:   No.  Can I come to that?

GUMMOW J:   Yes, that is right.

GLEESON CJ:   And you have to construe it together with 4.6, for better or worse.

MR FINCH:   Yes.  We say in our favour.  Can I turn to 8.2.2.  I think his Honour Justice Gummow asked earlier today whether one derived any assistance from 8.1 first of all in this exercise.  In a sense one does because 8.1 is the release version of the 8.2.2 indemnity.  Similar concepts are put in motion there but in a release sense to those which are set in motion in 8.2.2, the same introductory and the same concluding concepts, besides from the difference between, as I say, release and indemnity ‑ ‑ ‑

GUMMOW J:   What is the difference between the release and the indemnity?

MR FINCH:   Only the fact that 8.1 is about release.

GUMMOW J:   Yes, I know.  What is the conceptual difference between the release and the indemnity?

MR FINCH:   Because in 8.1 what is happening is that Andar is saying, “We release you from all claims”.  In 8.2 Brambles is saying, “You’ve agreed to give me money – not release me from the claim, but give me positively money”.

CALLINAN J:   You have also got the words “Conduct the Delivery Round at its sole risk”.

GUMMOW J:   Yes, that is right.

MR FINCH:   Yes.

CALLINAN J:   I do not know whether the balance of that clause is confined to that.  Those words seem to me to be very broad words.

MR FINCH:   Yes.  We say that 8.2 is read especially in the light of that clause.  But can I just tick as I should perhaps the boxes in 8.2.2 first.

GUMMOW J:   Really, the first half a dozen words in 8.1, on one way of looking at it, govern 8.1 and 8.2.  Do you follow me?

MR FINCH:   Yes.

GUMMOW J:   The rest that follows after those opening words is really epexegetical, so to speak, of the obligation to conduct at sole risk.

MR FINCH:   Yes, I was going to come back to that, your Honour, but your Honour ‑ ‑ ‑

GUMMOW J:   And then it is fleshed out with the notions of release and the notions of indemnity.

MR FINCH:   Precisely, your Honour.  I was going to come back to that.  The other way that 8.1 assists is that there is actually two things happening in 8.1.

GUMMOW J:   Yes.

MR FINCH:   There is a release, which is in similar terms to the indemnity ‑ ‑ ‑

GUMMOW J:   No, not just a release.

MR FINCH:   Well, that is item 1, and 2 there is the introductory words “Conduct the Delivery Round at its sole risk and”, not “by” or anything but “and”.  There are other references to that sort of concept which I will come to in a moment as quickly as I can.

Your Honours, if we just focus at 8.2 for a moment.  We say there are no difficulties in ticking the various concepts which we need to tick to get the benefit of the indemnity.  There is no difficulty with the expression in 8.2 “Indemnify the Company”, Brambles.  There is no difficulty with the expression “from and against all actions, claims, demands, losses, damages” and of course your Honours will notice “damages” there is the remedy damages, not the physical injury.  There is no difficulty with the width of the expression “in respect of or arising from”.  We say they are words of wide import.  Then dropping down to 8.2.2, the specifics.  There is no difficulty with the words “Loss, damage, injury”, they are all physical things which have happened; “from any cause”, could not be wider; “to property or person”, we say that should be read as “to any property or any person”.  There is no warrant at all for reading it to say “to persons who are not employed by Andar” or “to persons who are not driving a truck”.

GUMMOW J:   No, but you have got the operator specifically mentioned throughout this.

MR FINCH:   Yes.  That is Andar of course though.

GUMMOW J:   Yes, I know.

MR FINCH:   And what we say is here, to any person “caused or contributed to”, again very wide words, “by the conduct of the Delivery Round by” Andar.  Now, if Andar’s driver is injured in the course of the delivery round ‑ ‑ ‑

GUMMOW J:   Yes, I know, but if you are drafting an indemnity the goal in life is to have those wide words surely, but also to have some very specific words to nail down the person who might be wriggling.

MR FINCH:   No doubt that would be ideal, your Honour, but this agreement does not bear the hallmarks of somebody who drafted ‑ ‑ ‑

GUMMOW J:   Well, why should you have the fate of it?

MR FINCH:   Because, your Honour, they are on their face wide enough to cover the driver.  We say that if one asks oneself this question.  The indemnity is there to cover injury to any person, that much is clear.  What is it in the words “conduct of the Delivery Round by the Operator” which excludes the driver, who is one of the persons most likely to be injured in the course of that delivery round?

GLEESON CJ:   Well, I understood an argument to be put against you broadly to the effect that this clause is intended to indemnify against liability to third parties who would not relevantly include the driver.

MR FINCH:   Yes.  It would not, and we ask the question ‑ ‑ ‑

GLEESON CJ:   That argument may be right or wrong, but that I thought was the way it was put.

MR FINCH:   We ask the question then, why would one not say “third parties” or “persons other than the drivers” if one wished to exclude that class of person, that class of person being one which is most likely to be injured if there is an accident arising out of the course of the delivery round of the operator.

GLEESON CJ:   I suppose Mr Wail happens to be the driver, but the argument would have to be it does not cover liability to employees of the operator.  Now, if Mr Parker had been in the back of this truck for some reason, presumably as a matter of construction of clause 8, it would not have operated differentially as between liability to Mr Wail and liability to him.

MR FINCH:   He is not covered either.  We say, why not?  What is special about employees of Andar which excludes them from the word “person”?  They are people.  They are people who participate in the conduct of the delivery round.  They are people who may be injured in that conduct of the delivery round.  What the clause says, we say, is anybody, any person who is injured, where that injury is “caused or contributed to by the conduct of the Delivery Round by” Andar, is the subject of this clause.

HAYNE J:   What is the work being done by the “notwithstanding” clause after 8.2.3?

MR FINCH:   All that does is to say that, when your Honour reads through it, if it is something that Andar is either allowed to do or told to do or obliged to do by Brambles, it still works.  That is one of the parts of the agreement upon which we rely.  Brambles says to it, “Do X”, and somebody is injured as a result.  Brambles still gets the indemnity.  That is a reinforcing of the introductory words of 8.1.  Andar conducts this delivery round at its sole risk; that is, whatever thing that is bad happens, Andar wears it.  That is what it has agreed to.  And even if Brambles has told it or authorised it to do the thing which resulted in the injury ‑ ‑ ‑

HAYNE J:   Or, relevantly, unload the truck at Cotham Private.

MR FINCH:   Yes.  We rely on that specifically in our point that 8.2.2 covers not only injury which results from negligent acts, but injury which results from acts involving no fault, pure accidents, in that term, to which no fault is ascribed, and the “notwithstanding” provision sits perfectly well with that concept and uncomfortably with any other.

There are a number of things which we say bolster that conclusion.  The first one is the introductory words, as I have already said two times - I will not say it again - of 8.1.  Then, if your Honours look at 4.6.  Sorry, before I go there, can I go back to page 160 of the appeal book.

GUMMOW J:   Just before you go there, there is a case in this Court called Chan v Cresdon, is there not, about a guarantee?

MR FINCH:   Yes.

GUMMOW J:   And the Court said guaranteeing a lease did not include guaranteeing what was done under an agreement for lease that was specifically performable, although not yet reduced to a deed.

MR FINCH:   Yes.

GUMMOW J:   Well, how does that sort of reasoning apply here?

MR FINCH:   I am not sure that I appreciate the impact of that ‑ ‑ ‑

GUMMOW J:   “Lease” seems a very, very general word, but it was given a very restricted special meaning because of the Court’s reluctance to construe those generally, as they might appear, general words in contracts of surety and indemnity.

MR FINCH:   The difficulty is that one asks this question ‑ ‑ ‑

GUMMOW J:   We cannot approach all this in ignorance of that principle, which is allied to what Justice Kirby has been putting to you.

MR FINCH:   The question one asks though is this:  what is it about the words in 8.2.2 which indicates that it is third parties, for instance, the people to whom the truck runs into in respect of which it operates, but not Andar employees?  What distinguishes those two groups of people?  Let us assume it is a telegraph pole which was backed into and the owner of the pole says, “Okay, Brambles, that was your truck.  Why is that owner of the pole necessarily to be thought to be covered by this, but the employee of Andar, who was injured while backing into the pole, not covered by it?”  What principle of construction, we say, gives rise to that exclusion of Andar’s employees?  We say no such principle ‑ ‑ ‑

HAYNE J:   Well, through the words, “caused or contributed to by the conduct of the Delivery Round by the Operator”.  Now, the operator, relevantly, is Andar.  Andar has to be doing that by an individual.  “Loss, damage, injury . . . to property or person caused by . . . the conduct of the Delivery Round by the Operator” does not include the injury to the driver of Andar who is engaged in the conduct of the delivery round, seems to be the way the argument might run.

MR FINCH:   We say the answer to the argument is simple.  If the person who is injured is the person who was conducting it, there is nothing in this clause to exclude him from being the subject of the clause.  It does not say ‑ ‑ ‑

HAYNE J:   But what is put to you is that that is inverting the question.  What is there that includes that person, not what excludes that person, but includes.

MR FINCH:   The word which includes it are the unqualified word “person”, that is, it must be read as “any person” ‑ ‑ ‑

GUMMOW J:   But what about the word “all”; “against all actions, claims . . . for which the Company shall or may be or become liable”?

MR FINCH:   Yes.  As I said, they are words of the widest generality.  It is any person who brings any claim, all actions – it does not say all actions except actions by employees.

GUMMOW J:   Yes, but they have to be in respect of or arise from 8.2.1, 8.2.2 and 8.2.3.

MR FINCH:   Yes, and that is why I focused on 8.2.2.

GUMMOW J:   Yes, I know.

MR FINCH:   But it is any sort of action and it does not say any sort of action other than an employee action or a workers comp action or something of that sort and in 8.2.2 it is any person and we say that as soon as one analyses the concept of “contributed to or caused by the conduct of the Delivery Round by the Operator”, one encompasses the whole universe of persons who might be impacted by that, including the very person doing it.  That is perfectly consistent with, firstly, the “notwithstanding” part of the clause, as it goes on, that Brambles has told them to do it, and, more importantly, 8.1, the “sole risk” point, and some of the other points I am just about to come to.

If one looks at page 160 of the appeal book, this section of the contract is a rather odd one.  My learned friend, with the greatest of respect, correctly said that it seems to be a combination of index and separately live clauses.  If your Honours look at page 160 paragraph 25 ‑ ‑ ‑

GUMMOW J:   But that does not help you.  It is no good saying, “Oh gee, it’s sloppy, it’s general, it’s okay”.

MR FINCH:   I understand that but all I am saying is, when your Honour comes to look at one ‑ ‑ ‑

GUMMOW J:   If lawyers are drafting indemnities and guarantees, they have not to be sloppy.

MR FINCH:   I understand that, your Honour, but when your Honour is looking for what 8.2.2 - when your Honour is looking for the content of the meaning of the word “person” in 8.2.2 and asks if that includes an employee of Andar, then one can look at 25 being another clause or another part of the agreement to see that Andar has agreed to conduct the…..at its sole risk.

GLEESON CJ:   What does that add to 8.2.3?

MR FINCH:   Well, it depends on how one reads 8.2.3, your Honour.

GLEESON CJ:   What are the competing possibilities?

MR FINCH:   The competing possibilities on 8.2.3 are these:  firstly, that the words “any act” are to be construed, as it were, ejusdem generis, that is, it means any act attended by fault, because every other expression in 8.2.3 is a fault expression.  Your Honour sees “occasioned or contributed to by any act, omission, neglect or breach or default of the Operator”.  It seems to be perhaps reaching a little far to say that 8.2.3 applies to any act, although, on its face, that is what it says.  The competing possibilities for 8.2.3 are that, that any act means exactly that, whether attended by fault or not, or that it means an act attended by fault.

HAYNE J:   Can I spell out for your comment a way at least, I think, of putting the argument against you.  Step one, the expression “injury . . . from any cause to property or person caused or contributed to by the conduct of the Delivery Round by the Operator” in 8.2.2 requires identification of “person”.  8.2.3 also refers to “person”; “person” is used in the same sense.  That is step one in the argument.

MR FINCH:   Yes.

HAYNE J:   Step two in the argument, take 8.2.2, “injury . . . from any cause to property or person caused or contributed to by the conduct of the Delivery Round by the Operator”.  The “person” spoken of in 8.2.2 is a person other than the individual who is the person by whom the operator is conducting the delivery round.  Now, that is a way of putting the argument against you.  What is the answer to it?

MR FINCH:   The answer to it is that it is commonplace in legal expression to think of people causing their own injury.  We have spent half the day talking about exactly that and there is no reason to assume that when the contract talks of a person to whom injury “is caused or contributed to by the conduct of the Delivery Round by the Operator”, that is, Andar, the corporate entity, should not include the person injured by their own act as the employee of Andar.

GUMMOW J:   Say that again, Mr Finch.  There is no reason why ‑ ‑ ‑

MR FINCH:   There is no reason why one should exclude from the concept of “person” ‑ ‑ ‑

GUMMOW J:   I will give you a reason.  The reason is the attitude of the law to indemnities and sureties when there is another, quite viable perhaps, interpretation open.

MR FINCH:   But the difficulty, we say, in respect of that is to say that one is thereby implying into the clause the expression “person (except employees of Andar)”.

GUMMOW J:   So?

MR FINCH:   Why would one imply into it that qualification rather than, for instance, a qualification “(except nurses at Cotham Hospital) (except large companies into whose telegraph poles you might back into)”.  None of them, self-evidently, qualify themselves as candidates for exclusion on the basis of the words used.  Because the word used is of perfect generality, there is no reason to assume any particular group within that generality should be excluded simply because they are employees of the person conducting the round, particularly where, on one view, they are likely to be at the centre of things when accidents happen.  They are the most likely to be the persons injured or, at least, very likely to be.

When the parties came to look at 4.6, again, there is a couple of possible interpretations, but Andar agreed:

To assume sole and entire responsibility for and indemnify –

Brambles –

against all claims –

Then firstly –

arising from the operation of the Vehicle –

That is not this case, of course, because this accident did not arise from the operation of the vehicle.  Then it goes on:

by reason of any happening not attributable to the wilful negligent or malicious act –

Can we just pause there and say that there would appear to be some support for an interpretation that said that “wilful” was an adjective modifying “negligent” rather than ‑ ‑ ‑

GLEESON CJ:   Of course.  You mean, it means wilfully?

MR FINCH:   Wilfully.

GLEESON CJ:   We really have a sloppy drafter on our hands here, have we not?

MR FINCH:   I only mentioned that as a possible interpretation, but if one reads it on its face ‑ ‑ ‑

GLEESON CJ:   It is a possible ungrammatical interpretation, is it not?

MR FINCH:   It is and, having raised it, we say that that is not the reading of it because our reliance on 4.6 is, one turns away from the ungrammatical reading of it – on one view, the nonsensical reading of it – and say, the parties have here excluded circumstances where the injury is:

attributable to . . . negligent . . . act or omission –

of the nominated person, Brambles.

KIRBY J:   You make this sound as though this was carefully negotiated between the parties, in an intense give and take meeting between Brambles and these little operators.  All the hallmarks of this agreement is that it is a form document prepared by Brambles and its lawyers, to be propounded to the truck drivers on a “take it or leave it” basis.

MR FINCH:   Even if that is so, it is plain that the document itself internally makes provision for, where it wants to, exclusions as a result of negligent acts.  That is what 4.6 says.  So there is no warrant, we say, for assuming that that is what the parties meant elsewhere, for instance, in 8.2.2, where they do not do that.

GLEESON CJ:   Mr Finch, if we are against you on the construction argument, but in your favour on what Mr Jackson called issue No 1, that is, the Wrongs Act issue, does the matter have to go back to the Court of Appeal to assess a just and equitable contribution?

MR FINCH:   It does not have to, but it would appear to be the likely outcome.  We would agree with my learned friend’s summation, that is, your Honours could do it.  I hesitate to expose myself by inviting your Honours to do it.

KIRBY J:   How often do we do it?  We do simple things like the assessment of contributory negligence, as was mentioned in Nichol, because the parties invited it and it is a relatively straightforward matter.

MR FINCH:   Yes.  All I say is that your Honours may do it.  I do not suggest that your Honours ought to.

McHUGH J:   Well, we do not even have all the exhibits.  We do not have the exhibits, we do not have the judge’s summing‑up.

MR FINCH:   There are a number of things your Honours are missing.  For instance, your Honours may have seen a glimpse of the fact that there was an expert called about the defects in the trolleys.

GLEESON CJ:   Well, it involves a discretionary judgment that is not necessarily obviously appropriate for a Court of seven.

MR FINCH:   Yes.

GLEESON CJ:   There being a remote possibility that they might disagree.

MR FINCH:   Can I not engage in that debate, your Honour?

KIRBY J:   At least on the percentages.

GUMMOW J:   What you can engage in is preparing an adequate notice of appeal, pages 261 and 262, to provide for this remittal if it is necessary.

MR FINCH:   Yes.  I was not the appellant, your Honour.

GUMMOW J:   Yes, that is right.  You people, generically ‑ ‑ ‑

MR FINCH:   I am sorry, yes.  I am content to accept the stricture on behalf of my clients.

GLEESON CJ:   At all events, the Court of Appeal did not work out what was just and equitable, if you come to that.

MR FINCH:   No, they did not, your Honour.  If your Honour were against me on the interpretation point, with great respect, it would be very difficult for this Court to essay the task of just and equitable at all in the absence of the transcript and the exhibits in the other matters, quite apart from the logistical difficulties, that I do not want to comment on, of achieving a task in a Bench like this.

GLEESON CJ:   Thank you.

CALLINAN J:   All the High Court did in Nichol was adopt what the dissenting judge had said in the Court of Appeal in the Full Court.

MR FINCH:   I am sorry, I missed the first half of your Honour’s question.

CALLINAN J:   In Nichol, this Court simply adopted, I think, what the dissenting judge had said in the Full Court about apportionment.

MR FINCH:   Yes.

CALLINAN J:   His Honour in the Full Court.  The dissenting judge had carefully considered it.

MR FINCH:   Your Honour is quite right, yes.  Nichol was not a case where the High Court itself addressed the question; it simply agreed with what had already been done.  But here your Honours do not have that advantage.  Your Honours, there are a couple of mentions in our written submissions to the extent of what matters had or had not been raised below, also to the importance of a number of concessions that were made below.  Can I simply rely on our written submissions about that, rather than tease your Honours, because I see the time slipping away.

GLEESON CJ:   Yes.

MR FINCH:   Unless there are any other things upon which it pleases the Court, they are our submissions.

GLEESON CJ:   Thank you, Mr Finch.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honour.  Perhaps I might move this ‑ ‑ ‑

GLEESON CJ:   Yes.  We seem to be getting pretty close to agreement on that proposition, Mr Jackson, that if we are against you on the Wrongs Act, but in your favour on the contract, it should go back to work out what is just and equitable.  All you have to do is say, “Snap”.

HAYNE J:   Have we got a deal for you.

MR JACKSON:   Your Honour, so far as that is concerned, that is a matter for the Court, the course which it takes.  May I just say in relation to it, if we were successful only on the grounds concerning the contractual indemnity, then the appropriate course, in our submission, would be that the appeal be allowed and the Court of Appeal’s orders be set aside, that our costs in the Court be paid, subject to any other view the Court might have, that the matter otherwise be remitted to the Court of Appeal for determination in accordance with the reasons of this Court, and that the costs of the initial appeal to the Court of Appeal be reserved to the Court of Appeal.

Your Honours, could I move on, then, to some matters by way of reply.  May I mention, first, a reference I undertook to give this morning, and that was, I think, to your Honour Justice Gummow, concerning the position taken by the parties below in relation to whether there had been a renewal of the agreement for a term of three years.  Your Honour, one sees that at two passages in the record.  The first is page 187 in the primary judge’s reasons.  Your Honours will see at the conclusion of his reasons on this point, at about line 24, he said:

I agree therefore with the submission of the Defendant that the entire terms of the written agreement continued to bind the parties, with the exception of the specified term of 3 years.

Could I pause to say, your Honours, I said in my earlier submissions that the pleading did not go so far as to say there was a renewal.  Looking at it, it is a possible view that that might have been covered by it, but that was not the position taken at trial.

GLEESON CJ:   Just…..the defendant is Brambles?

MR JACKSON:   Yes.

KIRBY J:   What was the position taken at trial as to the continuation of the contract?

MR JACKSON:   Your Honour, as one sees at page 187, line 24, their submission was:

the entire terms of the written agreement continued to bind the parties, with the exception of the specified term of 3 years.

KIRBY J:   How does one slip out the three year term and not clause 8?  What is the principle that is being applied?

MR JACKSON:   Your Honour, the principle or, I suppose, the argument that was adopted by the primary judge in that regard, and also by the Court of Appeal at page 242, was to say that the only provision of the earlier agreement that was not carried over was the term itself.

KIRBY J:   But why not?  Why not have another three year term?  If you do not have to negotiate the three year term, if that was a completely redundant provision in the written contract, why omit it?  Why not assume that they have agreed that they will have another go at three years and it will just go on from three years to three years, as employment contracts can go on from week to week, or fortnight to fortnight, in accordance with the initial arrangement?

MR JACKSON:   Your Honour, perhaps it reflects, in a sense, I suppose ‑ and I do not mean to take entire refuge in this – the course taken at the trial, because if the contention being advanced on behalf of the now respondent was that there had been a renewal, then, of course, there are two things.  The first is that that issue, as such, might itself have been contested, as distinct from a rather narrow issue.

The second thing is that the course actually taken may well have been taken in the light of there being other contracts that had been in existence, in relation to which a similar position might be thought to obtain, so that Brambles might have perhaps exposed itself to actions by other people that were of contractual nature – contending for an entitlement to obtain work for three years, and so on.  Your Honours, that is the way in which the case was conducted.

GLEESON CJ:   Has anybody contended at any stage that the entire terms of the written agreement continue to bind the parties, except clause 8?

MR JACKSON:   Your Honour, we have not put it in quite that way, but your Honour will see from our notice of contention in the Court of Appeal at page 205, in paragraph 6(a), for example – to put it in the negative - where we said:

the Trial Judge ought to have found that the terms of the agreement relied upon by the Defendant – 

that is clause 8 – 

were not in force at the time at which the Plaintiff suffered his injuries.

GLEESON CJ:   Yes, but that just ducks the problem.  You could say that you reached that conclusion because there were no terms continued.  There was just an ad hoc arrangement.  Do you submit to this Court that the terms of the entire agreement continue to be binding on the parties except clause 8?

MR JACKSON:   No, your Honour.  No, I do not submit that, your Honour.  I say clause 8, and perhaps a number of other provisions, are ones that are inapposite to a situation where the contract has started again, or has started after the continuance and the reason why we say that clause in particular – and there may well be other ones, your Honour.  For example, clause 2.1 itself has the term in it, so from 2.1, one has to excise part of it, and there are other provisions that would also be inappropriate.

The reason, fundamentally, why we say that clause 8 does not apply, if it has the effect that is contended for, is because it is a term which was inserted in a contract which was to go for a term of three years, but it is one of the things that one can take or leave to get a three‑year contract.  When you do not have a three‑year contract, there is no reason to infer that a provision apposite to a three‑year contract should be one that is inserted in a contract which is brought about simply by parties performing particular work and being paid for it at the prior contractual rate.

HAYNE J:   Now, the Court of Appeal at page 247, in paragraph 61, says in the first ten or so lines of the page – make statements that suggest that they saw it as a choice between proceeding:

as though still governed by the terms of the original agreement (save that, since it had already expired, either could terminate the substitute arrangement on reasonable notice) –

is one choice or, in effect, quantum meruit.  Does that what reflect what happened in the Court of Appeal?

MR JACKSON:   Not quite, your Honour.  If one looks at page 242, you will see at the top of the page they quote from the primary judge in the passage I went to earlier at page 187, and then at line 6 say:

It might be sufficient to say that we entirely agree with those reasons – 

Then they go on to deal with the matter, and then in the next paragraph, paragraph 55, recite the arguments.  If one goes to line 15, the argument on behalf of the present respondent with:

Mr Curtain’s submission for Brambles was that the agreement was impliedly extended by reason of Andar’s continuing to do the work . . . The only inference, he submitted, was that the agreement continued on the same terms save as regards duration and termination, as to which the continued agreement must have been terminable on reasonable notice.

Then you will see the response, your Honours, where we said that they:

had not discharged the onus on it to prove by evidence that the agreement, including the clauses replied upon, was in existence at the date Wail was injured.

Your Honours will see some expansion of that through the remainder of that page and over to the top of the next page.  So, your Honours, it was not quite a case of saying, it is all or nothing, in effect.

Your Honours, could I come then to deal with a number of other matters, and I will do so as briefly as I can?  Our learned friend has gone through the evidence showing what business Andar had, your Honours.  Sometimes one sees advertisements for two men and a truck.  What one sees is two men, who own the company, and two trucks.  It is hardly an enormous business, and one sees also, your Honours, that in relation to the profit that is said to have been made, the evidence was that there was only a very small sum, if any.  Your Honours will see that at page 91, in a passage commencing about line 10, going through to line 22, and in particular between 18 and 22, he is asked:

In selling those trucks and rounds, Andar made actually made a substantial profit – 

and your Honours will see the answer that is set out there:

wasn’t that much left over – 

Your Honours, could I come then to another very factual matter.  Something was mentioned about the fact that it was the manner in which the vehicle had been parked that gave rise to the problem, parked on an incline.  We have set out the whole of the evidence, your Honours, in paragraph 4 of our submissions in reply.  What one sees from those passages of evidence is that he was, in the first place, shown where to deliver the goods to at the hospital, and also, your Honours, one has the situation where Mr Mahoney said that you had to park wherever there was room to park, and we have given your Honours the reference in paragraph 4 of those written submissions.

Your Honours, so far as the fit‑out of the trucks, the supposed rails or something of that kind, should be put down the tracks and things of that kind, could we say a few things about that?  The first is that if one goes to page 163 one sees clause 3.11, and one of our obligations was:

To repair maintain and fit out the Vehicle at its own expense in accord with the Company’s instructions plans and/or specifications and at its own expense to obtain and instal such fixtures fittings and equipment in the Vehicle as may be prescribed by the Company from time to time.

This vehicle, your Honours, was the one that he had previously driven as an employee of the company.  Your Honours will see that at page 37 and at page 38.

GLEESON CJ:   What happened, did the company buy it from Brambles?

MR JACKSON:   Your Honour, that seems to have been the case.  It was not expressly stated, but he speaks of it as Andar having the truck that they had previously had and, of course, Andar sold the truck.  You will see at, your Honours, page 37, line 24:

Brambles required all the drivers to become owner drivers and set up their own company and to continue doing the same work – 

and that goes over, your Honours, to page 38, line 8, and one sees in the passage to which I referred earlier that the truck was sold.

The second thing, your Honours, about the fit‑out of the trucks is this, there is not a word in the evidence or in the judgments concerning the steps which might have been taken in the truck.  Now, our learned friend’s argument, your Honours, was most interesting in that regard, but these are issues which your Honours will see in relation to which the cupboard formed by the evidence and the judgments appears to be there.

The third thing, your Honours, was that it was clear from Mr Mahoney’s evidence, and also from the evidence of Wail, that the 22 trolleys were trolleys which would fill the truck.  Your Honours, I am sorry, I have just lost the reference, but I will give it to your Honours in just a moment.

Your Honours, the final aspect in relation to this, was that your Honour the Chief Justice asked, in effect, what negligence was there in addition to the negligence of Wail personally, and if it was only Wail’s personal negligence, there could not be a liability on the company.  Your Honours will recall the finding that was made by the – or the observation, perhaps, I could put it that way, that was made by the primary judge at page 186, about line 16 that there was no:

basis for finding actual negligence on the part of [Andar]
over and above that that could be found as being contributory negligence by the Plaintiff.

Now, his Honour is no doubt putting it in a short form there, but what he is seeking to say, in our submission, is that the only conduct that could be regarded as negligent was the actual conduct of Mr Wail himself.

Your Honours, in the course of the argument one of your Honours ‑ your Honour the Chief Justice, I think – asked did Andar take over the business of Brambles?  Your Honours, it is apparent of course that that is true in a way, but all that was taken over was that they were doing as a contractor what they had done as an employee, namely, deliveries to and fro.

Your Honours, if I could move for a moment to – without going to the case itself – Shedlezki, could I say two things about it?  The first, your Honours, is that one sees it referred to in Nicol, not in the judgment of the majority, but in the judgment of Justice Brennan at page 620.  The second thing, your Honours, is this, that if one goes to the case itself, Shedlezki, in the reasons for judgment of Justice Mason, in the first new paragraph on page 390, he sets out what is in essence, in our submission, the basic reason why he arrived at the conclusion which he did, and that is because he regarded the statutory provision which had been breached as one which itself was intended to operate for the benefit of anyone who might be injured by its breach.  It was the statutory provision which the legislature intended to give to apply.

Could I come then, your Honours, back to clause 8, which your Honours will see at page 169.  Your Honours, what one sees in the opening words of 8.1 are what one sees in the concluding words of 8.1, and what one sees in 8.2.2 is a reference to “the conduct of the Delivery Round”.

Now, the delivery round is what is described, really, in two places.  The first is in perhaps a curious way at page 175.  It is the “current and future customers”.  That is paragraph 6 on page 175, but it is also referred to at page 159 at paragraph 13, and what is meant by the delivery round is that it is:

To be completed by the Vehicle –

that is the nominated vehicle – 

providing pick up and delivery service to customers of the Business operated by the Company.

Now, your Honours will have seen on the immediately preceding page there is a nominated vehicle, there is a nominated driver, and as your Honours will see from page 159 that driver is to be:

a suitably qualified driver or any satisfactory substitute – 

and, your Honours, if one goes then to, for example, clause 2.1.1:

the Operator shall procure and retain the services of a suitably qualified driver to operate the Vehicle ‑

and “Driver” is also referred to as that person named at page 175.

GLEESON CJ:   You wanted it expressed in your earlier submissions as “the Driver”.

MR JACKSON:   Yes, your Honour.  Could I just say, that if one is looking then at clause 8 of the agreement, what one sees is that the whole of clause 8 is dealing with the subject matter in the agreement, of course, but dealing with the conduct of a delivery round by the driver – by the operator, of course, but that has to be done by the vehicle and by the driver. That makes it less likely, in our submission, that clause 8.2.2, when it speaks of:

injury . . . to property or person caused or contributed to by the conduct of the Delivery Round by the Operator –

is speaking of an injury to the driver, and, your Honours, that is a submission I ‑ ‑ ‑

GLEESON CJ:   That may be right or it may be wrong, but Mr Finch puts against you that in terms of construction of this provision the person most likely to be injured is the driver.

MR JACKSON:   Your Honour, one would wonder, with respect, about that, because certainly one would think that the more likely thing is that the driving of the vehicle is likely to cause injury to somebody else.  Fewer truck drivers, one would suspect, engaged in deliveries around the cities suffer injuries than the persons and buildings and so on with which they come contact.   Your Honour, to put it shortly, who knows?  It is a matter in a sense of assertion one way or the other, but the point we would seek to make about it, really, is that if one is looking at the clause, it seems much more likely to be speaking about liabilities to other persons than to the person actually doing the thing that causes or contributes to the injury.

GLEESON CJ:   Third party liabilities where the driver and the operator are not relevantly third parties.

MR JACKSON:   Yes, your Honour.  I heard your Honour put to my learned friend that perhaps it would apply if Mr Parker was in the back.  Your Honour, perhaps that is a debatable thing.  We would draw some comfort from the use of the vehicle and “the Driver” in the contract itself.  Your Honours, if one goes to clause 8.2.3, one does have to bear in mind that the indemnity that is conferred is an indemnity in respect of legal liability “for which the Company shall or may be or become liable”.  They are the opening words of 8.2. 

If one goes then to the terms of 8.2.3, the legal liability which is referred to then in 8.2.3 is a liability of Brambles which has to arise from an “act, omission, neglect or breach or default of the Operator”.  So it has to be a liability of Brambles which is “caused or contributed to” by some negligent conduct on the part of the operator.  Your Honours, that, one would think, is referring to liabilities to other persons brought about by our conduct which is made attributable to Brambles, or brought about by some legal default on our part.  That is something which, in our submission, reflects the other view which we have put of the clause, and that is that it is really recognising the fact that we go around dressed up as Brambles, as it were, and what the clause is dealing with, clause 8, is liabilities that Brambles incurs because we go around dressed up as Brambles, to put it shortly.

Your Honours, could I say also in relation to the release part of 8.1, that what it is is a release by us to Brambles of a liability which Brambles would have to us.  Your Honours, one sees also at the end of it again a reference to “the conduct of the Delivery Round by the Operator”.  I said I would give your Honours a reference to where one sees the number of trolleys on the truck.  It is page 149, lines 21 and 22.  Your Honour, there were two aspects, I think, this morning in relation to which we said we would endeavour to give your Honours a reference on paper.  May we have seven days to do so?

GLEESON CJ:   Yes.

MR JACKSON:   Your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  We will reserve our decision in this matter and we will adjourn until 10.00 am on Friday, 7 November in Canberra.

AT 4.21 PM THE MATTER WAS ADJOURNED