Atwood Oceanics Australia Pty Ltd v Hinnen

[1989] HCATrans 23

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P30 of 1988

B e t w e e n -

ATWOOD OCEANICS AUSTRALIA

PTY LTD

Applicant

and

KEVIN RANDALL HINNEN

Respondent

Application for special

leave to appeal

BRENNAN J

Atwood

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDIN~S

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AT CANBERRA ON FRIDAY, 17 FEBRUARY 1989, AT 11.35 AM

Copyright in the High Court of Australia

ClT21/l/HS 1 17/2/89

MR J. R. McKECHNlE: If Your Honours please, 1 appear fort.he applicant..

(mstructed by the Crown Solicitor for Western Australia)

MR J.R. CRIDDLE:  lf Your Honours please, 1 appear for

the respondent. (instructed by H.J. Wisbey

and Associates)

BRENNAN J:	Mr McKechnie.
MR McKECHNlE:	If it please Your Honours, the two points

upon which the applicant would argue that this is

an appropriate case for the grant of special
leave are first the question of the finding in
relation to contributory negligence, or the lack

of a finding by the Full Court, and secondly the

question of damages and particularly the question
of whether or not a contingency ought to have been

allowed in the circumstances and the principles

relying on that generally.

lf 1 could take Your Honours to the application

book and the relevant findings in relation to the

first matter of the Full Court, the Full Court made
a finding contrary to that of the learned trial

judge that the primary cause of the accident was the want of a system of inspection of the floor of the rig. Although that is a finding which,

on an appeal, we would challenge as a matter of

fact, as shown in our draft ground of appeal, we

would accept it for the purposes of this

application as a finding open to the Court.

(Continued on page 3)

ClT21/2/HS	2	17/2/89
Atwood

MR McKECHNIE (continuing):  However, our submission in relation

to special leave would be that the court, in applying

that finding and in applying the law, made a number

of errors, the effect of which in general terms would

be to deny in an appropriate case the operation of

contributory negligence in areas where there is a

finding of a want of inspection or a want of a

system of inspection by an employer. In other words,

where the employer has a duty which, we would accept,

to have a system of inspection and the employer

necessarily having breached that duty by a finding

of negligence or breached a duty none the less, we

would say there is still scope for the operation

of contributory negligence in such a case and, in

our respectful submission, the Full Court misdirected

itself in relation to a number of authorities and

the result is that, at least for Western Australia if

this case is to be regarded in future as a precedent,
there may be problems in the future application of

the principles of contributory negligence in

circumstances where the employer has breached, itself,

proper standards of safety in relation to inspection.

If I could take Your Honours to page 92 of the

application book - page 91 and I will not take

Your Honours to the passage at line C, it is the

finding of the Court that:

It seems to us that, upon a proper analysis,

the want of a system of inspection was a

primary cause of the appellant's injury.

And, as I say, I am prepared to accept that for

the purposes of this application, although we would

challenge it in the event of an appeal.

Their Honours proceeded, at page 92 - we are

working through to the ultimate conclusion on page 95 -

firstly, by a quotation from BANKSTOWN FOUNDRY V

BRAISTINA about which, of course, we would not

quarrel but which, in a sense, is trite, although

it had some effect on one of their subsequent findings,

as I will explain to Your Honours.

(Continued on page 4)

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MR McKECHNIE (continuing):  Then they quoted between

lines C and D from NICOL V ALLYACHT SPARS PTY LTD,

a passage from Justice Dawson, doubting:

in relation to the common law duty which

an employer owes to take reasonable care for

the safety of an employee by providing a safe system of work, that the duty of an

employer and employee in such regard could be

ever coextensive or coterminous.

This present case was a case where, as the trial

judge found, the floor of the rig had upon it a

depression of some four to five centimetres near a

padeye block and it was into that depression that

the respondent had placed his foot while working with

a spinner hook and caused the twisting of his knee

which was the injury. It was a part of his duty

as leading hand to maintain the floor in a safe

condition.	The Full Court held that it was the employer's
responsibility to see that there was a system.	The

quotation from NICOL V ALLYACHT SPARS ignores the

fact -and is simply that quotation: Their Honours

do not go and analyse the case further -and ignores

the fact that His Honour Justice Dawson in that

case was in dissent. And,we would say, in dissent

particularly in relation to the quotation made.

Your Honour Justice Gaudron,who formed part of the

majority in NICOL V ALLYACHT SPARS and

Your Honour Justice Brennan who delivered a judgment

to the same general effect, if I might say so with

respect, as that of the majority, held in that case
that there was an unsafe system largely brought
about prior to the plaintiff's intervention -

subsequently the appellant's intervention - but that the appellant took some responsibility in the event

by way of contributory negligence.	And that is an
important submission.	As I say, the Full Court did

not deal with the point - that point - other than making

the quotation that they did. They quoted then from

RUPRECHT's case and again one would not quarrel with

it except to say that from the way in which they then

deal, leading up to page 95, they seem, with great

respect to the Court, to have overlooked the fact

that of course contributory negligence in its

confined operation involves no duty of care to

another person, but that it may do.

(Continued on page 5)

ClT23/l/SR	4	17/2/89
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MR McKECHNIE (continuing): In this case, if it were the

respondent's duty to provide as a shared

responsibility, the trial judge held, a safe

workplace, a safe floor, that duty was owed,

of course, to himself in a contributory sense

but to the other workers as well. So the duty

may on occasions also expose others to risk.

Their Honours went on, on page 93, and

there is no particular passage to which I

would take Your Honours other than at line E

where they say:

This was a case in which upon the evidence

there was no system of work for the inspection

of the floor.

Again, that would be a finding of fact we would

challenge in due course, but I do not at this
stage make anything of it because it is a finding

of fact.

Then Their Honours took the view at

pages 93 and 94 that they could characterize the

respondent's inattention as indavertence in failing:

to draw the attention of his superiors to the padeye depression. The evidence does

not, in our view, establish that he had

authority to leave the floor to effect a

repair or to tell any person beneath him

to do so.

That overlooks again a question of fact, in our

respectful submission, that finding which was left

really untouched by the trial judge that it was a

shared responsibility and that the respondent

as leading hand had a primary responsibility to
maintain the floor of the workplace in a

proper state.

Then the passage upon which we really take issue is at page 95 of the application book and

that is the area where we would say it is appropriate

for this Court to grant special leave. Their Honours

having, as I say, in our respectful submission,

started upon a dangerous path by citing a

dissenting judgnent without comment in NICOL,

then compound the error,which leads to an error

of reasoning exposed at lines D and E, by citing
from KONDIS V THE STATE TRANSPORT AUTHORITY,

between lines A and B:

(Continued on page 6)

CIT24/l/JM	5	17/2/89
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MR McKECHNIE (continuing): 'The employer's duty is personal

and non-delegable" and then quote from KONDIS V

STATE TRANSPORT AUTHORITY. Now, of course, we

take no issue with what was said in KONDIS V

STATE TRANSPORT AUTHORITY but as was said in

NICOL V ALLYACHT SPARS PTY LTD, (1987) 61 ALJR 640,

in the joint judgment of the Chief Justice and

Justices Toohey and Gaudron at page 642 in the first colurrm beginning at about paragraph E:

That the respondent was under a duty

to provide a safe system of work for its

employees was not in doubt.	The fact
that the -

I have read a little bit earlier than I need.

Following the reference to LEE V LEE'S AIR FARMING:

Nor did it alter the duty of care owed
by the respondent to him along with its
other employees. Counsel for the appellant

placed some stress on the fact that an

employer's duty to provide a safe system

of work ~~y not be delegated. The

non-delegability of the duty is well

settled -

quoting KONDIS.

But the notion of non-delegability has

very little to do with the case in hand.

There was no independent contractor

involved; all those who participated in
the circumstances surrounding the appellant's
accident were employees of the respondent,

notwithstanding the position of some as

directors. The questions now b~fore the

Cou~t are not to be resolved by reference

to the non-delegable nature of an employer's

duty of care.

Now, with respect, what the Full Court has done in

the present case is to first of all, having found
that 1:he primary cause <.>f the_ accident was a failure

to provide a system of inspection about which, as I
say, there is no present quarrel, it then in

considering whether or not there is any evidence

that the respondent contributed to that, to have

cited from the dissent in NICOL to the effect that

the duty is not co-extensive or coterminous,

corrp01.m.ded that with the view that the duty is

non-delegable in situations whiph from the citation
just given does not arise in the present case,

to lead to the conclusion that they express in lines

D and E, "Still less can the employer fix an injured

employee with contributory negligence which consists

in the employer's own failure by inspection and

action to provide the safe system of work which it

ClT25/l/BR	6	17/2/89
Atwood

was the employer's duty to provide and in respect
of which the assistant driller has

been guilty of negligence by carrying out no or

no adequate inspection? In our opinion,:the authorities

to which we have referred when applied to the facts

of this case do not permit that conclusion."

McHUGH J:  The words "which consist" are very awkward in that

sentence which commences at D. They must mean:

Still less can the employer fix an injured employee with contributory

negligence -

where the negligence consists of the employer's own

failure by an inspection. Does that lay down a

proposition ot law, because it would seem to lead to

the conclusion that if an employee failed to inspect

the safety of premises and an employee walked along

and negligently fell down a hole, he could not be

guilty of contributory negligence.

MK McKECHNIE: In our respectful submission, it does seriously

provide a question of law. In circumstances where

it is conceded that the employer owed an employee a

duty to provide, in the relevant case, a system of
inspection and so the employer is negligent - and that

is conceded on the facts of this case for the purposes

of this argument. But that does not preclude - as, with

respect, we would submit the Full Court has done - the

then investigation of whether the employee has himself

contributed to the accident, notwithstanding what

must be first found, that is, the negligence of the

employer, particularly in situations where it is

part of the employee's duty to guard against the
very thing which causes the accident, that is, the

depression.

So our submission is simply - and I have now

made it on the first aspect of our special leave

ground which is reflected at page 119 in the affidavit.

I do not propose to argue in paragraph 10 the first
point.	On reflection, in my submission, it does not
really clearly arise.	If the Court has made an

error it is not so much, we would say, in the principles

about which but perhaps errors of fact and that, we

concede, is not a special leave point. But paragraph 2

is really the question that we raise, and left uncorrected,

we would see would lead to difficulty in the future.

(Continued on page 8)

ClT25/2/BR	7	17/2/89
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MR McKECHNIE (continuing):  The other point upon which

we would argue special leave ought to be

considered arises from the questions of damages

and it arises in this way. This respondent had

previously suffered, unrelated to his employment,

an iniury to his knee which had caused an overall

assessment of 20 per cent disability to the knee

and he had had an operation in relation thereto.

There was some dispute as to whether or not the

operation and the previous accident had caused

degenerative changes but the findings of the

trial judge which could be found on pages 59 to 61

of the application book are that an injury to the

knee would have happened sooner or later and

somewhat sooner than later. In other words, it

was inevitable that if it had not been for this

accident that sooner or later, and somewhat sooner

than later, the knee would have given way, and

secondly that the finding was that the likelihood
of degenerative changes to the knee which had been

present had in fact been decreased because of operations subsequent to this injury and that

since February 1986 the respondent had been fit

for full-time employment involving duties not

placing a tremendous strain on the knee.

The trial judge dealt, in our respectful

submission, incorrectly with those findings and the Full Court adopted his mode of dealing with them, although the Full Court allowed a lesser

percentage. What the trial judge did is that,

having regard to various matters, and I would leave

other contingencies to one side, but in relation

to the knee he discounted the past economic loss

of earning capacity between the date of the

accident and the trial by 40 per cent, having

arrived arithmetically at it, he then discounted

it by 40 per cent due, primarily, to the fact that sooner rather than later the knee would have given

way and he discounted the future economic loss by

60 per cent, again due to the knee. Now, there were, of course, the other

contingencies taken into account, but the primary

reason for such a discount is contained because

of the knee. That was the subject of a cross

appeal, so this is not a point which is suddenly

raised now. The cross appeal - I do not need to

take Your Honours to it but it appears at page 80, but the Full Court did not appear to deal with the

cross appeal, at least they did not deal with it

directly. What they did was I think by necessary

implication adopt His Honour's reasoning as to the
adequacy or the appropriateness of applying
contingencies but came to the view that His Honour
had taken too much regard for the ill-fortunes

of life and not sufficient to the good fortune

ClT26/l/HS	8	17/2/89
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and reduced the percentage for contingencies for both past and future loss to 20 per cent in each

case.

Now, the question which, in our respectful

submission, is raised by this application and which

we set out at page 120 of the application book

as the reason why special leave ought to be

granted is in paragraph 10(3) of the affidavit.

(Continued on page 10)

ClT26/2/HS	9	17/2/89
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MR McKECHNIE (continuing): It is simply this: that

where you have an event which we would say could

be reasonably clearly forecast in the medical

evidence, that is that there was a pre-existing
condition which would have overtaken him in

any event by about February of 1986, we would

submit that the proper approach is no 4 as

His Honour the trial judge and the Full Court

did,to work out contingencies in relation to
that, but if possible to, within limits, of
course, to fix a date and work out that before

that time there may be a particular loss and

after that time there may be a lesser loss or

no loss. That is the point of the second

matter: there is authority to both sides, that

is it is appropriate to work it out in contingencies

and there is also authority to the effect that

one calculates the point and from then on a

different matter applies.

So, those are the two matters upon which

we would	say this case is such that this Court
ought to	see as special and grant leave to
appeal.	If Your Honours please.

BRENNAN J:  Thank you, Mr McKechnie. We need not trouble

you, Mr Criddle.

MR CRIDDLE:	Thank you, sir.
BRENNAN J:	The applicant seeks special leave to appeal

against a decision of the Full Court of the

Supreme Court of Western Australia allowing

an appeal by an employee in a negligence action

brought against an employer. The ground of the

application is, inter alia, that the Full Court

misdirected themselves as to the nature of
contributory negligence in a case where the

employer has failed to provide a safe system of

work. We see no principle laid down by the

court's judgment which departs from the principles

to be found in the judgments of this Court.

Contributory negligence is, as the

majority pointed out in McLEAN V TEDMAN (1984)

58 ALJR 541 at page 545, essentially a question

of fact. There is no question of public importance

raised by that aspect of the case.

A further ground challenges the Full Court's

reassessment of damages for personal inJuries.

Reassessment followed entirely from the Full Court's

reassessment of contingencies. That is a matter of

fact also and raises no question of public

importance. Accordingly, special leave is refused.

MR CRIDDLE:  I would move for an order for costs.

CIT27/l/JM	10	17/2/89
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BRENNAN J:  Do you have anything to say to that,

Mr McKechnie?

MR McKECHNIE:  No, Your Honour.

BRENNAN J: With costs. The Court will adjourn.

AT 12.01 THE MATTER WAS ADJOURNED SINE DIE

CIT27/2/JM	11	17/2/89
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