B & R Enclosures Pty Ltd v Nevin

[2005] HCATrans 424

[2005] HCATrans 424

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S415 of 2004

B e t w e e n -

B & R ENCLOSURES PTY LIMITED

Applicant

and

MARK NEVIN

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 JUNE 2005, AT 11.42 AM

Copyright in the High Court of Australia

MR S.J. HARBEN, SC:   May it please the Court, I appear for the applicant, with my learned friend, MR G. CURTIN.  (instructed by TL Lawyers)

MR G.R. PETTY, SC:   May it please the Court, I appear with, MR P.J. KIRBY, for the respondent.  (instructed by Bale Boshev & Associates)

McHUGH J:   Yes, Mr Harben.

MR HARBEN:   Your Honours, the submission is that if the judgment of the Court of Appeal remains it will inevitably lead to conflicting judgments.  To explain that it is necessary to take your Honours to the error correction point we say exists in the case which would require the intervention of this Court.

The respondent cut his right hand in circumstances where he said he was putting it into an electrical meter box in March 2000.  On the door of the meter box was what has been described in the evidence as a bracket, an escutcheon bracket.  That bracket is processed and bent into a U‑shape and placed onto the door.  The leading edge, therefore, of the U faced the respondent.

The question in the trial, the question that the Court of Appeal, with respect, should have grappled with in a different way, we would submit, was whether it was the applicant’s sharp edge.  Firstly, there was no direct evidence that an inference was required, but there are two positive pieces of evidence which we say are easily seen and demonstrate the point clearly without argument.

The respondent called his father, Mr Nevin, Senior, in answer to a direct question as to what it was he saw in relation to the box and the escutcheon bracket.  He described it as being serrated and very sharp.  The use of the word “serrated” was the only piece of evidence in the case describing the shape of the escutcheon bracket.

Mr Peel, an independent witness, who came back to the scene of the accident with Mr Nevin, Senior, described it as being sharp, sharp enough to cut.  The respondent himself was oblivious to the edge, as he said in evidence.  He placed his hand in.  He cut himself.  He did not look at the bracket following the accident.  At one stage, having described it variously as “sharp”, he said he was oblivious to it having a razor‑sharp edge.  That was the only time he used that term.  It was not something he had seen, and in the evidence that was the only time those words were used.

The evidence of Mr Nevin, Senior, must be read together with the evidence of Mr Bridges, the managing director of the applicant.  He gave evidence of the process of manufacture of the boxes on which the doors are situated and the brackets are situated, and in relation to that process it is clear – and the Court of Appeal referred to this a number of times in disposing of the credibility based findings of the trial judge – that process did not produce serrations.

In restoring the credibility of Mr Nevin, Senior, the evidence clearly as to shape rests with his evidence.  If the process of the applicant could not produce serrations, that would mean it must follow that the bracket on the door was not a bracket manufactured by the applicant.

McHUGH J:   Mr Harben, these are factual matters.  So far everything you have said is about as remote from a special leave application as you can imagine.  Where is the special leave point?

MR HARBEN:   Two reasons, your Honour.  Firstly, the Court of Appeal caused a great injustice to the applicant because it just did not address that evidence, but more importantly, given an opportunity to return the matter for trial on all issues, bearing in mind that the trial judge had not addressed damages, had not addressed the notional assessment under section 151Z, returned the matter for trial on a limited basis.  At that time, assuming the matter proceeds in the course directed by the Court of Appeal, questions of liability must be addressed because the trial judge will then have to determine the degree of responsibility of the employer had he been sued and compare that to the degree of responsibility of the applicant.

McHUGH J:   We have read your submissions, but really, this is not a special leave case.  I know the reports will show that we have taken on a number of cases in recent times concerning purely factual matters, but we cannot take on these cases whether or not we think the decision below is right or wrong.

MR HARBEN:   Your Honour, the Court of Appeal stepped into the shoes of the trial judge; that is what it did.

McHUGH J:   It gave its reasons for rejecting the trial judge’s views of the matter, and as the author of the judgment in Abalos and a number of other judgments to the same effect, it seems to me they were well justified in doing so.

MR HARBEN:   Yes, your Honour, but they were not justified in ignoring the only piece of evidence as to the shape of this edge, and if that only piece of evidence, taken with Mr Bridges’ evidence, meant that the finding had to be it could not be the applicant’s manufacture ‑ ‑ ‑

McHUGH J:   But why?  You only have to go back to a case like Grant v Australian Knitting Mills, that was the argument in that, back in (1936) AC.  The argument was our process would not have allowed this dermatitis to get in.  The Privy Council said Dr Grant has suffered the problem, there must have been a defect somewhere in the system, something happened.

MR HARBEN:   Your Honour, no suggestion was made in the evidence that Mr Bridges’ evidence was wrong, no challenge to it, no suggestion in any submission that he was wrong about that, none at all.  There was no reason for the Court of Appeal to reject Mr Bridges’ evidence for any credit reason or because it was in conflict with some other evidence.  It stood alone unchallenged, and when the Court of Appeal addressed the matter afresh, they had no warrant, we would submit, to simply ignore it.

McHUGH J:   If you accepted the evidence of Mr Nevin then there was a problem, and the question was where did the defect come from?

MR HARBEN:   Yes, your Honour.

McHUGH J:   The Court of Appeal inferred that there was some human error somewhere in the system.  Now, given that, that is a question of fact.  This Court’s time cannot be taken up looking at matters like that.

MR HARBEN:   Your Honour, on retrial, when the trial judge addresses the degree of responsibility, it is perfectly open – and we would submit inevitable – that the finding would be made that the edge was serrated.  That would be inevitable on the state of the evidence as we have it.  If that is the case, then in assessing the degree of culpability, that finding would be inconsistent with the effect of the judgment as it now stands, and inconsistency in judgments, we would submit, is a matter of general importance.  It is a matter to be avoided at all costs.

Not once, your Honours, in the Court of Appeal judgment when dealing with the negligence of the applicant, not once did the Court of Appeal refer to the evidence of Mr Nevin, Senior, as to the serrated edge.  The only time they referred to it was in deciding that the difference in description between Mr Nevin, Senior, and Mr Peel, did not affect either of their credit.  When it came to the critical issue of whether the applicant was negligent, the very feature of the case that should have dominated was just ignored and, your Honours, true it is ‑ ‑ ‑

McHUGH J:   These are arguments of fact,  The Bar has to understand that this Court is the final Court for the nation, and speaking generally, it deals only with questions of law of major public importance.  From time to time it sees cases where there is such an injustice, prima facie, that it will take

the case on, but you are getting into an argument about facts.  It is just a run‑of‑the‑mill negligence action where the Court of Appeal has come to the opposite conclusion to the trial judge.  It is not a special leave case.

MR HARBEN:   Your Honour, the Court of Appeal, with respect, must act in accordance with the evidence.  That cannot be ‑ ‑ ‑

McHUGH J:   Of course they must, but views differ as to what inferences can be drawn from evidence, and we have said again and again, but the Bar does not seem to hear, the mere fact that a decision below is wrong is not itself a ground for special leave to appeal.

MR HARBEN:   But it is coupled, your Honour, with the relationship to the principle that there should not be conflict in judgments, and we would submit inevitably because there must be a liability trial when it was returned that the whole thing should have been returned to trial at first instance.  The Court of Appeal elected to deal with an issue only, did not address quantum, did not address section 151Z, said the reason for that that section 151Z related only to quantum when clearly it does not, and took the opportunity by simply ignoring the question of serration away from the applicant to have a verdict in its favour without, as your Honour suggested to me, any recourse to anybody to correct that view and that finding even if it is inevitably wrong, as we would submit it is.  Those are our submissions, your Honour.

McHUGH J:   Thank you.  The Court need not hear you, Mr Petty.

We are of the view that there is no reason to doubt the correctness of the judgment of the Court of Appeal.  The application for special leave is rejected and must be rejected with costs.

AT 11.54 AM THE MATTER WAS CONCLUDED