Andar Transport Pty Ltd v Brambles Ltd

[2003] HCATrans 449

[2003] HCATrans 449

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 MONDAY, 3 NOVEMBER 2003, AT 3.27 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR P.H. SOLOMON, for the appellant.  (instructed by Wisewoulds)

MR S.G. FINCH, SC:   If the Court pleases, I appear with my learned friend, MR D.J. CHRISTIE, for the respondent.  (instructed by Allens Arthur Robinson)

GLEESON CJ:   Yes, Mr Jackson.

CALLINAN J:   Gentlemen, I just should mention I have a small holding in Brambles shares.  I do not know whether that makes any difference to anybody.

MR JACKSON:   No objection, your Honour.

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours, as is apparent from the written submissions, the case turns on the resolution of four issues.  Two concern the Wrongs Act 1958 (Vic), two relate to a contractual indemnity. The issues which concern the Wrongs Act are, first – and if I could put them in general terms – was the appellant, in terms of section 23B(1) of that Act, liable in respect of the damage to the plaintiff Wail?  Secondly, and if so, was the case one where the appellant should be exempted from liability to make contribution?  I will come to the detail of those in a moment, your Honours.

The contractual issues concern the indemnity provisions in clauses 8.2.2 and 8.2.3 of a contract which had been in being between the parties.  I said it had been in being.  It was for a fixed term which had expired before the injury to the plaintiff.  The first contractual issue is whether the indemnity clauses relied on by the respondent govern the relationship between the parties at the time of the injury.  The second contractual issue is whether, if they did, the relevant provisions on their true construction did apply to the present case.

GLEESON CJ:   Now, if we are in your favour on the contractual issues but against you on the Wrongs Act issues, would the matter have to go back to the Full Court?

MR JACKSON:   Your Honour, it would depend on the view that the Court took on the two issues.  In that regard, if the Court were of the view that it was a case where we should not be exempt, that is, the second issue, if we failed on that, the question which would then yet arise would be whether there should be, I suppose in theory, some further contribution.  If the Court was of the view that it could not decide that question or should not decide it, the issue would go back.

Your Honours, may I go first to the provisions of the Wrongs Act itself.  Your Honours will find that in our book of materials behind tab 10.  The starting point in relation to it is section 24AD(4) which describes the ambit of operation of the Act.  Your Honours will see it at the page numbered 24 at the bottom of the page.  Your Honours will see that by section 24AD(4):

The right to recover contribution in accordance with section 23B ‑

to which I will come in a moment, your Honours ‑

supersedes any right, other than an express contractual right, to recover contribution (as distinct from indemnity) otherwise than under this Part in corresponding circumstances ‑

and then your Honours will see the proviso in paragraph (a) and also paragraph (b).

Your Honours will see that section 24AD(4) performs essentially two functions.  One is that it provides that the right to contribution given by section 23B supersedes any other right in that regard and, secondly, it preserves contractual and other rights, including rights to indemnity.  Could I go then, your Honours, to the substantive provision and, first of all, to section 23B(1).  May I say in a prefatory way, first of all, two things, that section 23B(1) is the provision that gives an entitlement to contribution; section 24 is the provision which provides for its quantification.  Could I go first to section 23B(1).  Your Honours will see that it provides that:

a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage –

and there are two provisions which perhaps should be noted as relevant to the interpretation of section 23B(1).  They are first section 23A(1).  Your Honours will see that defines the circumstances in which a person is liable in respect of any damage and it rests on the entitlement to recover compensation.  Your Honours will also see the second provision which is relevant, section 23B(6), and it says:

References in this section to a person’s liability in respect of any damage are references to any such liability which has been or could be established in an action brought against that person in Victoria by or on behalf of the person who suffered the damage ‑

Now, your Honours, the terms of those provisions give rise, in a sense, to the first issue, namely whether the plaintiff in the action, Mr Wail, could have recovered against the appellant in respect of the injury.  May I come back to that issue in just a moment, your Honours, but before doing so go to the second part of the Wrongs Act which is germane, and that is the provision for quantification.  That is found in section 24.  Your Honours will see section 24(2) goes on to provide that:

the amount of the contribution . . . shall be such as may be found by the jury or by the court . . . to be just and equitable having regard to the extent of that person’s responsibility for the damage ‑

that is the first part of section 24(2), but it then goes on, unlike some of the provisions in relation to contributory negligence, to say that:

the court . . . shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

Now, your Honours, the last thing I would like to say about the – I will come back to the operation of provisions, but could I just invite your Honours to note that the maximum amount of possible contribution in, in a sense, money terms is the amount payable by the person claiming the contribution.  Your Honours will see that in section 24(2A).  If I could just say that that takes into account, in effect, as your Honours will see, by section 24(2A)(b) “any reduction by virtue of section 26”.  Section 26 is the contributory negligence provision.  It is not in the materials your Honours have, but that is the contributory negligence provision.

Could I come then to the first issue in the matter, namely, was there an entitlement to contribution?  If I could take your Honours for a moment to our written submissions in paragraph 15 at page 5.  Your Honours will see that essentially there are two aspects relied on, namely, that there was no breach of duty by the appellant on the one hand, and on the other hand that the plaintiff was the sole cause of his injury.

Now, before coming to the argument in support of that, could I go for just a moment to the basic facts.  Your Honours will see in our written submissions at page 2 in paragraph 5 that the underlying nature of the proceedings is set out in paragraph 5 and the relative positions of the appellant, the respondent and the plaintiff appears at page 3 in paragraphs 6 to 9.  Your Honours, could I just say in relation to it that the type of work that was carried out by the plaintiff can be seen in his evidence in the case in the appeal book at page 34.  It is a passage, your Honours, going through from line 2 on page 34 through to page 37, line 21.

GLEESON CJ:   What was it that constituted the fault on the part of Brambles?

MR JACKSON:   Your Honour, the fault on the part of Brambles was constituted by having a system which involved the need to move these heavy containers, large containers, which were – I will give your Honours the details of it in just a moment – heavy, large and in a confined space and moved on wheels like supermarket trolley wheels, it was said, in circumstances where the need to move them was likely to cause an injury to the person doing it.

GLEESON CJ:   And what was it that constituted Mr Wail’s failure to take reasonable care for his own safety?

MR JACKSON:   Your Honour would appreciate there was a jury that decided that aspect of it.  It is perhaps a little elusive, with respect, but what it seems only to have been is that in some way he did not take enough care in the way in which he was performing the task on the day.  I will give your Honours the reference to what was said about it, but presumably it was in relation to the way in which he was moving the containers.  There were 22 – could I just say that the trolleys which were being handled were trolleys which were – this appears at page 35 – about 5 feet long, 5 feet high and 2½ feet wide.  So they were narrow but high.  They had four swivel wheels.  That appears at page 36, about point 3.  Twenty two trolleys could fit on the truck, three aside I think it was – that is at page 36, lines 23 to 24.

Could I indicate to your Honours where it is that one sees the way in which the injury which occurred is referred to.  There are three short passages.  The first is at page 39.  Your Honours will see at that page in a passage from lines 16 to 25 there was a hydraulic tailgate.  He got in the back of the truck:

Untied the trolleys and went to put - I put my right hand on one of the trolleys and put my left hand on the roof of the truck and went to pull a trolley and my back just - went.

He said it had clean linen in it and he believed it was full.  The second passage, your Honours, is at page 105.  Your Honours will see about line 26 he said he experienced difficulty in getting the trolley to move, and there is some debate that goes on.  Then at the bottom of page 106, about line 31, in a passage that goes through to about line 22 on the next page, he referred to the fact that he had difficulty pulling the trolley back, it was stuck with another trolley, almost wedged in between three other trolleys and he was not conscious of the direction of the wheels when he went to pull it out, not initially.  The wheels were in different directions.  It made it difficult to pull.  He described where the trolley was, and that is where he goes on.

The Court of Appeal’s summary of the evidence is at page 212 in paragraph 7 of its reasons, going to the bottom of that page.  It is to the effect of those passages.  Your Honours, the negligence of Brambles, the respondent, was summarised by the Court of Appeal at page 224, about line 24, where their Honours said:

In our view the jury was entitled to take the view that a system which required a driver to manipulate heavy trolleys in circumstances where a combination of their weight, design, and resistance to movement was calculated to put a more than significant strain upon their ‑ ‑ ‑

GUMMOW J:   Mr Jackson, paragraph?

MR JACKSON:   I am sorry, your Honour.  It is part of paragraph 24, your Honour.

GUMMOW J:   Thank you.

MR JACKSON:   It is right at the bottom of the page.  The paragraph occupies most of the page, and the passage goes over to the first three lines on page 225.

Could I just say, going back for one moment, your Honours will have seen the type of work and the persons in the position of the plaintiff were required to become owner‑drivers, and contracting to Brambles, but the work that they carried out was the same as before.  That appears at page 37, line 23 in a passage which goes through to page 38, about line 8, where he said that the work he was doing was exactly the same.  The person who was the distribution manager for Brambles said that Brambles controlled how the work was done.  Could I give your Honours two references in that regard.  It is Mr Mahoney at page 147 in a passage commencing at line 25.  Your Honours will see at the bottom of the page that he agreed that:

Brambles ran a pretty strict show . . . they wanted all of the drivers . . . to adhere to –

and that goes through to about line 30 on page 148.  The last reference in that regard is also at page 127, again Mr Mahoney at line 30.  Your Honours will see that he was asked whether there was always someone who would be responsible for showing the drivers the route they would have to go around.  The passage goes through to about line 30 on page 128, and your Honours will see what is there set out.

Your Honours, the primary judge made a number of findings about the role of the plaintiff and the appellant.  Your Honours will see that in the primary judge’s findings at page 182.  It is a passage that goes through to page 183, line 14.  It commences at line 10 on page 182.  What your Honours will see is that at page 182, line 10 he said:

The Plaintiff is one of 2 directors of the Third Party.  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 ‑

that is us ‑

has only one actual business activity.  It has a contract . . . The deliveries were carried out by the Plaintiff who is the “driver” named in the contract.

And your Honours will see that there referred to.  Your Honours will then see at the bottom of page 182 the judge said:

the Plaintiff suffered injury as a consequence of the system of work that he was required to use in his employment and the nature and condition of the trolley he was attempting to move when he injured his back.

Your Honours will see he describes it in the top three lines at page 183 and says:

This system of work was established by the Defendant ‑

that is, the present respondent, and refers to the fact they were supplied and maintained by the respondent and not supplied by the appellant or the plaintiff.

Now, your Honours, the Court of Appeal decided that there was an entitlement to contribution on the part of the respondent on the basis – indeed, in our submission, purely on the basis – that there was a separate duty resting on the appellant as the employer.  Your Honours will see that in the reasons of the Court of Appeal at page 235 as part of paragraph 39.  The court, at the top of page 235, adopted what has been said by Justice Dawson in Nicol v Allyacht Spars Pty Ltd – I will take your Honours to the case in a moment – at the top of page 235, where his Honour had said:

“Even if the above principle can be applied in the absence of any statutory duty . . . it does not seem to me that the duty of an employer and an employee in such regard can ever be co‑extensive or co‑terminous.

A reference to the same effect, your Honours, can be seen at page 238 in paragraph 47 of the reasons of the Court of Appeal.  Your Honours will see the same thing is said in the second sentence of that paragraph, and then it is said:

The non‑delegable nature of that duty precludes the imposition of the same burden upon an employee as is shouldered by the employer.  The failure to take reasonable steps to provide a safe system of work was the failure of Andar, and was quite different from the duty which Wail in his managerial capacity as director owed to the company.

Now, your Honours, there is no doubt of course that there are separate duties owed on the one hand by an employer and on the other hand by someone in the position of the respondent.  But it does not follow that simply because there is a breach by a person in the position of the respondent that there is also a breach by the employer.  Your Honours, it will be borne in mind in this case that the breach by the employer was simply in a sense a transferred over version of the breach by Brambles.  That that is so, your Honours, appears from the Court of Appeal’s reasons at paragraph 45 at page 238, where what their Honours said was, in the second sentence:

Brambles supplied Andar with trolleys and linen to deliver to and collect from various hospitals, and the jury’s verdict shows that the trolleys were not safe to use.  It necessarily follows that since Andar had a duty to take reasonable care in making the trolleys and the system of handling them safe, there was a breach of Andar’s duty to Wail to provide a safe system of work.

Now, that seems to involve simply transferring over what constituted the breach of duty by the respondent to the employer.  Now, your Honours, this is a case where the person controlling the company’s activities in relevant respects, that is, Mr Wail – and your Honours have seen the finding in that regard by the primary judge – was the person who was responsible for implementing a safe system of work on behalf of the appellant. 

Now, in circumstances where the person controlling the company’s activities is the person responsible for implementing the safe system of work and has not done so or fails to do so and in consequence is injured, the cause, in our submission, as between the employer and employee, is that of the injured person.  The cause of the injury is the injured person, or the cause is one appertaining to the injured person.

Now, your Honours, that view was adopted by a majority of the court, although its application failed on the facts in Nicol (1987) 163 CLR 611 which I adverted to a moment ago. It is the first case behind tab 1 in our book of materials. It was a case where one sees at page 612, about point 3 on the page, it is said – this is the facts:

His action against the company for damages for negligence was dismissed by the Supreme Court of Queensland on the ground that the unsafe system of work was Nicol’s own system, so that he could not complain of its inadequacy.

And the Full Court had held the same.  Now, in the joint reasons of Chief Justice Mason and Justices Toohey and Gaudron, at page 615, about halfway down the page, your Honours will see a reference – it is in a sentence commencing, “No submissions”.  The only point I make about it, your Honours, is just this, that it makes it clear that the Court in that case was not dealing with a case of breach of statutory duty; it was dealing with a simple case in negligence.  Your Honours will then see, at the bottom of the page, the factual matter that ultimately appeared to decide the case was referred to, namely, the fact that:

the performance of the respondent’s business was carried out on a day to day basis by the appellant, Mr Berg and Mr Gray; on the occasion of the accident the performance of that business was directly in the hands of the appellant and Mr Berg –

and that the two of them were involved.  But, your Honours, at the bottom of page 616 the Court recognised the existence of the duty.  Your Honours will see the first sentence in the last paragraph on the page.  Then, going from there, in the passage which goes from about point 4 on page 617, their Honours refer to the fact that the notion of non‑delegability, which was something that had been urged on behalf of the appellant, was irrelevant. 

Their Honours went on then to hold, at about point 6 on page 617 through to the end of the page, that Nicol, the plaintiff, had not been the only cause because Berg had been involved also.  But what one sees, your Honours, at page 618 is that it is recognised that if it had been solely the fault of Nicol, and not Nicol and Berg, then that would have prevented recovery.  Your Honours will see that in the passage commencing at the top of the page, where their Honours say:

In those circumstances it cannot be said that any fault on the part of the appellant was “co‑extensive” with that of the respondent through its other employees . . . 

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

and your Honours will see that sentence.  Then passing over the reference to Stapley v Gypsum Mines, their Honours say at point 4:

The cause of the appellant’s injuries was the provision of a means of access to the banner which was simply unsafe.  That was not solely the fault of the appellant.  It was in part his fault in acquiescing in the use of the system and helping to put it into operation.  But it was also very much the fault of those who devised the system.

GLEESON CJ:   That is to say, his own fault and the fault of other employees?

MR JACKSON:   Yes, your Honour.  The point their Honours are saying is that the matter which appeared to be at issue was whether it was his own fault.  They said he was not the only one who devised the system, the system was devised by himself and others, therefore one could not say it was a case where it was solely the fault of the appellant.

Your Honours, that view one sees also expressed in the reasons for judgment of Justice Brennan.  Could I take your Honours to page 619.  Your Honours will see in the first paragraph of Justice Brennan’s reasons in the fourth line:

A duty to provide a safe system of work is part of an employer’s duty of care to his employees, and the appellant was an employee as well as an executive director –

The duty is then stated and your Honours will see the reference to “reasonable care”.  At the bottom of that page his Honour refers to the fact that:

the company’s duty of care to its employees fell to be discharged by its executive directors of whom the plaintiff was one.  Can he recover for breach of the employer’s duty?

His Honour then refers to the fact that:

There have been cases in which an injured employee has failed to recover for breach of an employer’s statutory duty where the employee was himself responsible for performing the duty.

And your Honours will see the reference there given.  Then a little further down, about halfway down the page – I am sorry, perhaps I should just say, your Honours, one sees the way in which – this is point 3 on the page – Lord Reid had approved the test, “Whose fault was it?”.  If I go to halfway down the page, his Honour said:

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.

And your Honours will see a few lines further down a quotation from Shedlezki:

it must be established that the breach by the plaintiff is the sole cause and not merely a cause of the accident.

I pause to say, your Honours, that is a breach of statutory duty case.  What I was going to say, your Honours, is this, that if one goes to page 621, the paragraph commencing at about point 2 on the page:

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.

Your Honours will see then that discussed and in the last paragraph on page 621 his Honour speaks of the fact that:

Here the failure of the company to prescribe and enforce a safe system . . . was not solely due to the plaintiff’s fault.  His injury was caused by his failure and by the failure –

et cetera.  Your Honours, the reasons for judgment of Justice Dawson, the relevant passages of which are quoted in the Court of Appeal, arrive, with respect, at a different result, because what his Honour said was that because there were separate duties there could not be a case at common law where one had the person, the employee, solely responsible.  So the question, in our submission, applying Nicol is, to put it shortly, whose fault, as between the company and the employee, was it?

GUMMOW J:   What does that mean?

MR JACKSON:   Your Honour, one looks to see how the accident or the injury was caused, speaking in factual terms.  One then looks to see was it brought about by something which was a breach of duty by the company.  Your Honours, it may be that there is something which, if one was speaking about another employee, would amount to a breach of the duty to take reasonable care.  But if one had a situation where the employee who is injured is the person whose function it was in the company to take the reasonable care and to make sure it was taken, then if one looks at the circumstances and says the injury was brought about by the failure to take that care, then, in those circumstances, your Honours, one asks, I suppose, in a declamatory sense in a way, whose fault was it, meaning by that, who is legally responsible for it, the answer is, only the person who is the plaintiff.

HAYNE J:   But you have buried in that question and answer the conclusion that the other director of this company has lawfully shared responsibility for an activity of the company by appointing a fellow director to have charge, primary charge, sole charge – whatever epithet you apply to it – this particular function of the company’s business.

MR JACKSON:   Your Honour, that really is, in a sense, why we put the matter in two ways.  The other way is to say, if it be that the duty is one which cannot be delegated in that sense, at the same time one is looking at a question of performance of the duty, performance of the obligation.  The obligation is one not to take absolute – it is not an absolute duty.  It is one to take reasonable care and it is a perfectly reasonable thing to do, in a company of this kind – it will not be in every company, of course – to leave or to assign to one of the directors, who is a person who has worked in the area, who is familiar with the whole thing, the steps which need to be taken.

McHUGH J:   Mr Jackson, I was taught at an early stage that the best way of winning an employer’s liability case was to systematise the plaintiff’s own negligence and make that the system.  You get case after case where the plaintiff does – there may be a paper system in operation, but the plaintiff departs from it and does it day after day and that then becomes the system.  Now, the employer cannot escape responsibility in a case like that and it is because the employer is taken to have condoned what the employee does.  Now, why, in this case, should not Andar be taken to have condoned what was done by Wail day after day, not only because of Wail’s knowledge as a director, but because of Walker’s – the other director’s knowledge?

MR JACKSON:   Your Honour, could I say a couple of things in relation to that.  One is not talking, of course, with respect, in the abstract.  What one is talking about is a circumstance where the terms of the job that is to be done, or the tasks that are to be done, are ones that are determined by someone else – determined, of course, by Brambles, because Brambles is the body that says you have to use this truck, you have to do a large variety of things, this is the job, these are the trolleys, there are trolleys, this is where they have to be delivered.  Your Honours have seen the passage, I think, at page 148 where the degree of control that is exercised is referred to.

Now, one has to look to see, your Honours, in those circumstances, what is the task that is to be performed in performing the duty or calling the duty on behalf of the appellant?  The appellant’s choice, in a sense, is work that way or no work, I suppose.  But if one looks to see what is there that the appellant should have done, it is, with respect, very difficult to see any suggestion as to what the appellant itself might have done in the material at all.

McHUGH J:   But why could it not have interfered?  Take a common enough case, the system is these bars are to be taken from point A to point B by using the crane in the factory.  As a matter of practice, day after day, a worker or workers drag the bars.  They do not use the crane, even though they have instructions.  Now, in that situation, the employer is held liable.  Now, what is the theory?  In a real sense, it is the employee’s system, but the employer is still liable because it just allows the system to develop.

MR JACKSON:   Your Honour, that can be ‑ ‑ ‑

McHUGH J:   But you cannot say it is the sole cause of the employee, even though, in a sense, he devises the system.

MR JACKSON:   Your Honour, one would think, for example, that there is no particular difficulty in a company saying that the obligation to be performed by the company – and one is not speaking about a large company.  One is speaking about a company that involves two people, one of whom does the books, in effect, one of whom does the work, and one of whom is experienced in the nature of the work to be carried out.  Now, your Honour, we are ‑ ‑ ‑

HAYNE J:   At what level of duty, breach, damage does this question of whose fault is it engage?  Are you denying breach?  Are you denying damage caused by breach?  At what point do you slot in this question?

MR JACKSON:   Your Honour, it is the latter two.  That is to say, on the one hand, our submission is no breach; on the other hand, if one says there is a breach or theoretical breach, then that is a question of was it caused by the breach, and that involves a question of saying, no, it was not, it was caused by the act of the person responsible for it.  In those circumstances, it is not something for which the employer is legally responsible.

McHUGH J:   But there does seem to be a difference, Mr Jackson, between the case of a casual act of negligence on the part of the employee and a case where the employee has been injured as a result of a defective system.  It is one thing to say the employee who lifts the guard off the machine and then has his hand taken off is the sole cause of his injury, but it seems to me another thing if day after day the employee has the guard off the machine and the management either knew, or ought to have known, of what was happening, that you can say that the employee was the sole cause of his injury.

MR JACKSON:   In this case, your Honour, you are not talking about a person who is doing anything that the person is not required to do by, not ours, but the Brambles system.  That is the point I am seeking to make about it.  The system is one where – your Honour, I will not go into the detail of it – we have to collect in a particular size truck the bins to be taken to particular places and collect them.  We do not have any choice about the size of them, the number of them, they have up to 22, they get delivered, they have to fit in the truck in a particular way, and we do not control what comes.  We just have to take them, take them out and put them back in again.

Now, in that regard, your Honour, if one is speaking about what might be done by the company, one looks to see that there is not very much that could be done.  The best thing anyone could say is perhaps you could make some suggestion to Brambles about the fact they might change their way of doing things, but that is about it, your Honour, and that was only a speculation, with respect, in the case.

McHUGH J:   Does the trial judge’s findings establish that Wail’s act was a one‑off act in the sense that what caused the injury was just done by reason of what was done on this day, or was it a persistent course of conduct?

MR JACKSON:   It is just the one day, your Honour – well, your Honour, perhaps that is not the right way to answer it.  What the evidence was, was that he was doing what he always did and what one had to do to move the things out.  In moving them, on this day, one, to put it shortly, got stuck and in moving it out he suffered the injury to his back.  Your Honour, that was the position.

Your Honours, we have referred in our written submissions to a number of cases where a similar approach has been taken or referred to.  Could I just give your Honours a reference very briefly to three.  One is to Rauk v Transtate Pty Ltd.  It is a decision of Justice O’Keefe in the New South Wales Supreme Court.  It is behind tab 14 in the respondent’s materials.  At page 18, paragraph [84], your Honours will see the third line of that paragraph:

The plaintiff was, in effect and for all operational purposes, the company.  He was the person in Restile who was responsible not only for the performance of services on behalf of the company, but also for the fulfilling of any obligations to employees of the company that might exist.  Had the plaintiff sued Restile he would have been met by –

to put it shortly, a defence of this kind.  The possibility of such a defence was adverted to in the New South Wales Court of Appeal by your Honour Justice Heydon, with whom the other members of the Court agreed, in a case which is behind tab 2 of the respondent’s materials, Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243. It is at page 34, towards the end of paragraph 75, and your Honours will see, in the last few lines:

In any event, if the breach of duty had been the fault of Mohammed alone, he could not have complained about it –

and then your Honour referred to Nicol’s Case.  Justice Higgins, in the Australian Capital Territory Supreme Court in a case behind tab 18 of the respondent’s materials, Steele v Twin City Rigging Pty Ltd (1992) 114 FLR 99 at 115, and towards the bottom of the second half of that page, dealing with the question of contributory negligence, your Honours will see the proposition immediately under that heading, but could I just say, about halfway through the next paragraph:

Of course, that is subject to a consideration of the circumstances.  A worker may have unreasonably ignored warnings. A worker may be so experienced and have so misconducted himself or herself that a finding of contributory negligence is warranted.  The employee might, also, be the person or one of the persons responsible for devising or enforcing safety precautions.

The reference to “one of the persons” might be doubtful, but in the case of “the person”, in our submission, such a view is open.  Could we refer also, your Honours, to page 10 of our written submissions, paragraphs 30 to 33.

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

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   Mr Jackson, do you and Mr Finch think that if we sit ordinary hours tomorrow we will finish by tomorrow afternoon?

MR JACKSON:   I would think so, your Honour.  I expect to be ‑ ‑ ‑

GLEESON CJ:   What do you think?

MR FINCH:   I agree, your Honour.

GLEESON CJ:   All right.  We will adjourn now until 10.15 tomorrow morning.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 4 NOVEMBER 2003