Bell v State of Western Australia

[2005] HCATrans 561

[2005] HCATrans 561

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P68 of 2004

B e t w e e n -

AARON LESLIE BELL

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 AUGUST 2005, AT 10.16 AM

Copyright in the High Court of Australia

MR W.S. MARTIN, QC:   May it please the Court, with my learned friend, MR B.G. BRADLEY, I appear on behalf of the applicant. (instructed by Bradley & Bayly) 

MR G.T.W. TANNIN, SC:   May it please the Court, with my learned friend, MR B.P. KING, I appear on behalf of the respondent. (instructed by Crown Solicitor’s Office (Western Australia))

GUMMOW J:   Thank you.

MR MARTIN:   Your Honours, the issues of general importance that justify the grant of special in this case are, firstly, the elucidation of the jurisprudential basis for the doctrine of vicarious liability; secondly, the question of whether a master remains vicariously liable for the tort of a servant, notwithstanding the statutory immunity of the servant; and thirdly, the effect of a statutory form of immunity for public officials which is in common use throughout Australia and, in particular, the effect of that statutory provision upon the liability of the State either directly or vicariously.  In our respectful submission, these are matters apt for the grant of special leave.

Your Honours may have seen from the additional papers that we provided that in the matter of De Bruyn, which is one of the cases relied upon by the Full Court to decide against us, Sir Anthony Mason observed in 1991 that these were issues apt for the grant of special leave, although in that case leave was refused because the matter had been resolved on an interlocutory basis. 

Your Honours, the competing contentions are perhaps best summarised in a passage from the judgment of Justice Heenan in the Full Court, which your Honours would find at page 54 of the application book.

GUMMOW J:   Am I right in thinking that the ground of appeal, namely that of direct liability, is not now on the table?

MR MARTIN:   It is, your Honour.  It was not pressed in the Full Court but it was decided ‑ ‑ ‑

GUMMOW J:   You said the special matter of importance was vicarious liability.

MR MARTIN:   There is that.  It is really under the third question that I identified, your Honour, that is, the effect of the statutory provision upon the direct liability of the State.  In other words, if there is direct liability, does the statutory provision nevertheless provide some form of immunity?

GUMMOW J:   Well, what do you say about Mr McCormack’s statement in the Full Court, set out on page 76 of the application book?  Why should we get involved in a case on that insubstantial footing?

MR MARTIN:   Because the matter was litigated on the basis of direct liability at first instance and the question is one of legal characterisation, which obviously would not affect the evidence that was led because that was the way the matter was litigated at first instance.  That is how the case was pleaded and that is how the case was determined by the trial judge.  If I can take your Honours to those portions of the application book.  At page 10 your Honours will see the relevant portion of the statement of claim and, in particular, paragraph 7A.3.4 there is a plea of duty on the part of the State and 7A.4 a plea of breach of that duty through the acts of its servants or agents.  At page 13 your Honours will see in paragraph 9 a joinder of issue with respect to that duty.

Then if I could take your Honours to page 14 of the application book and paragraph 24 of the reasons of the Commissioner, your Honours will see that he approached the case, as it was put to him, squarely on the basis of a breach of duty by the State.  In paragraph 26 he again addresses the case on the basis that it was being put that there was a breach of duty by the State – and I am reading particularly from the fourth line:

because the defendant, through Mr Tong, did not inform the plaintiff ‑ ‑ ‑

GUMMOW J:   Yes, I know that, Mr Martin, but we have not had the advantage of the Full Court’s deliberations on this matter because of what is said, for example, by Justice McLure at page 33, paragraph 4.

MR MARTIN:   Your Honour, that is certainly true, but we submit that it is simply a question of characterising acts that are not in contention on the basis of facts found by the court below.  Indeed, that was the basis of the determination, as your Honours would see from paragraph 33 of the Commissioner’s decision at page 16, where his Honour ruled ‑ ‑ ‑

GUMMOW J:   We are not hearing an appeal from the Commissioner.  I will not say it again.  We are hearing an appeal, if we are to hear one, from the Full Court.

MR MARTIN:   Well, your Honours, that is an aspect of the appeal.  Of course, we nevertheless press our contentions with respect to the issues concerning vicarious liability.

GUMMOW J:   Yes.

MR MARTIN:   As I was suggesting, the competing contentions are conveniently summarised in the judgment of Justice Heenan in the Court of Appeal at paragraph 76, which your Honours will find at page 54 of the application book.  I will not read it to your Honours.  He identifies that on the one hand there are:

highly persuasive dicta in the High Court coupled with established approaches to the strict construction of statutory provisions –

and on the other hand a series of decisions of intermediate courts of appeal, and finally his Honour refers to the lack “of an acceptable rationale for the doctrine of vicarious liability”.  Further up that page, in paragraph 74, your Honours will see references to the recent cases in this Court, in particular, Hollis v Vabu, State of New South Wales v Lepore in which repeated reference has been made to the accepted lack of an acceptable jurisprudential basis for the imposition of vicarious liability. 

There are competing theories in relation to that jurisprudential basis.  Relevantly for the purposes of this case the competing theories are essentially those enunciated by Justices Taylor and Kitto in the Darling Island Stevedoring Case in which their Honours expressed the view that the employer was vicariously liable for the acts of the employee.  A contrary view has been enunciated by Justice Fullagar in the same case and Justice Windeyer in Parker v The Commonwealth and that is to the effect that the basis of liability is along the lines that the employer is liable for the liability of the employee, not the acts.

GUMMOW J:   What do you say about paragraphs 34 and 35 on pages 40 and 41 of Justice McLure’s reasons?

MR MARTIN:   If I can just turn those paragraphs up.  Well, we would respectfully disagree with that proposition.  Her Honour enunciates the master tort theory on the basis that that proposition is to the effect that the employer acquires a liability because of his or its responsibility in the selection of the employee.  That, with respect, is not the basis of the enunciation of liability by Justices Kitto and Taylor in Darling Island Stevedoring.  If your Honours would go to paragraph 29 of her Honour’s judgment at page 39 of the application book, your Honours will see in the judgment of Justice Kitto the observation that the master’s liability:

is a separate and independent liability, resulting from attributing to the master the conduct of the servant, with all its objective qualities, but not with the quality of wrongfulness –

Now, if that proposition is accepted, it would follow that section 124 would not provide immunity to the State.  Now, with respect to her Honour Justice McLure, the only authorities that are contrary to that proposition are decisions of intermediate courts of appeal or the decision of Justice Fullagar in this Court in Darling Island Stevedoring and the decision of Justice Windeyer in Parker which it has to be said again is against us, but Justice Taylor in Darling Island Stevedoring was essentially of the same view as Justice Kitto.  Your Honours find a passage to that effect in paragraph 67 of Justice Heenan’s judgment at page 51 of the application book.

So, your Honours, that is why Sir Anthony Mason observed in De Bruyn that this is an issue apt for the grant of special leave.  Unlike that case, in this case the facts have all relevantly been found.  The conflict is essentially between those authorities in the High Court which do deal with the basis of the imposition of vicarious liability and those decisions of intermediate courts of appeal, particularly the decisions in De Bruyn, which I have mentioned, and the New South Wales decision in Cowell. 

Your Honours, contrary to what is asserted by the State, this statutory provision is in common use throughout Australia.  We have earlier this week provided to your Honours a set of materials which demonstrate the many ‑ ‑ ‑

GUMMOW J:   Yes, we have seen them, thank you.

MR MARTIN:   There are many provisions of this kind in a variety of statutes throughout the various States of Australia and so the determination of this question will be of general importance.

GUMMOW J:   I think at this stage we will be advantaged by hearing from Mr Tannin.

MR MARTIN:   Thank you, your Honours.

MR TANNIN:   May it please your Honours, can I address ‑ ‑ ‑

GUMMOW J:   We would like to hear you not on the ground of direct liability but on the ground going to vicarious liability.

MR TANNIN:   Thank you, your Honour.  The law as to vicarious liability, whilst it has a problematic articulation in terms of its basis which all the judges recognise, is nevertheless settled and is as described in the judgment of her Honour Justice McLure at paragraphs 32 onwards which you have referred to.  The question of whether the immunities of ‑ ‑ ‑

GUMMOW J:   It is not settled at the level of this Court, is it?

MR TANNIN:   That is correct.

GUMMOW J:   I have always thought there was some continuing uncertainty as to whether it was the Kitto view or the Taylor view.

MR TANNIN:   The view that has been consistently applied is as set out ‑ ‑ ‑

GUMMOW J:   The difference between the views is rather thrown up because of the intrusion of section 124.  That is the point that is put.

MR TANNIN:   I respectfully agree with that, but if I can just firstly say that vicarious liability itself in its application in Australia is well settled.  The question of whether the immunities of the Crown should be taken away or not is also settled and is settled because various statutory intrusions have been made into the issue. 

We provided a book of supplementary materials.  In it there is a reference to Hogg who in turn refers to the Law Reform (Vicarious Liability) Act 1983 (NSW). Since 1983, in section 10 of that Act, the liability of the Crown is preserved notwithstanding immunity clauses. It is an example, in our respectful submission, of how the legislatures have actually dealt with the settled application of the law and, in our submission, whether or not these immunities should extend to the Crown is a question of policy to be determined by each of the Parliaments.

GUMMOW J:   It has not been determined in Western Australia yet.

MR TANNIN:   In some cases the liability of the Crown is preserved in the areas I have referred to in the outline of submissions, in some it is not.

GUMMOW J:   Yes, but it has been approached on a piecemeal basis rather, I think.  That is my impression.

MR TANNIN:   Correct. 

GUMMOW J:   Yes, thank you.  Mr Martin, Mr Tannin, there will be a grant of leave in this matter but on ground (1) of the two grounds set out at page 61 of the draft notice of appeal.  So there is no grant in respect of ground (2).  The notice of appeal will have to be revised accordingly.  Again, the parties should prepare themselves with a view to a hearing in the Perth sittings later in the year as probably a one day case, I would think.  Do you both agree with that?

MR TANNIN:   Yes, your Honour.

GUMMOW J:   Probably a one day case, no more, perhaps less, but one day is a safe target.

MR MARTIN:   We promise it will not be more.

GUMMOW J:   All right.  We will take a short adjournment.

AT 10.31 AM THE MATTER WAS CONCLUDED