Beverley v Hill-Douglas & Anor t-as A.E. HIll & Co

[1999] HCATrans 394

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B5 of 1999

B e t w e e n -

DALLAS LESLIE BEVERLEY

Applicant

and

SHOLTO ALBERT SIDNEY HILL‑DOUGLAS and MARY ELIZABETH HILL‑DOUGLAS trading as A.E. HILL & CO

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 1999, AT 12.28 PM

Copyright in the High Court of Australia

MR R.A.I. MYERS:   May it please the Court, I appear with my learned friend, MR G.R. MULLINS, on behalf of the applicant.  (instructed by Clayton Utz)

MR J.J. CLIFFORD, QC:   May it please the Court, I appear with my learned friend, MR P.C.P. MUNRO, on behalf of the respondents.  (instructed by Tutt & Quinlan)

GLEESON CJ:   Yes, Mr Myers.

MR MYERS:   Thank you.  Your Honours, I have to deal initially with the question of negligence, although as your Honours will have seen the principal contention in relation to this matter concerns causation.

GLEESON CJ:   There is a problem about that though, is there not, Mr Myers.  The issue of causation will not arise on an appeal unless we were to disagree with the Full Court on the issue of negligence.

MR MYERS:   Yes, that is certainly so, and it is for that reason that I think we must deal with it at first instance, on the basis that it is our submission that the Court of Appeal were not justified, and had no warrant to interfere with the findings of the trial judge in relation to negligence on well‑established principles.

Could I take your Honours to the matters in issue.  His Honour specifically found - and your Honours are well aware of the circumstances of the accident, and I will not address them.  Essentially the applicant ran into a fence and sustained really quite serious injuries in the course of mustering.  What his Honour specifically found is that the fence and the fence line, itself, with which the applicant collided was not readily visible on the afternoon of the accident.  I will give you a transcript reference.  That is page 18 of the record, line 17.

GLEESON CJ:   What did the trial judge find was the act or omission that constituted negligence?

MR MYERS:   A failure to warn, your Honour.

GLEESON CJ:   That is dealt with on page 41 of the application book at lines 49 and following.

MR MYERS:   That is so, yes; and what their Honours have done, and it is perhaps not unusual that they would refer to three cases of the Court, McLean’s Roylen Cruises, O’Connor’s Case and Cuiuli’s Case, each of which involved a failure to warn, but a failure which the Court found it was not necessary to give in the circumstances of those cases.

GLEESON CJ:   What should the respondents have warned him, not to run into the fence?

MR MYERS:   In effect.  I would submit the warning should have been in the nature of this:  the situation is that this man was carrying out mustering on a motorcycle at some speed.  He was mustering sheep, which, of course, your Honours would take notice of the fact that they do not like being separated from the flock, so at speed he had to cut out from a flock a single sheep, and he was going to do that by cutting it out against a fence, that is to say, to cut it out from the flock and position the single sheep between himself and the fence.

GLEESON CJ:   Should they have said to him, “Be careful you do not run into the fence.”?

MR MYERS:   Your Honours, I would submit that it should have been at least said that, “The most hazardous part of your job while you are employed here as a jackaroo is going to be mustering, and when you are mustering you must ensure that before you commence you identify the fence”.  Your Honours, it is important in this respect, that his Honour made a specific finding that the plaintiff had not located the fence – that is a finding at page 17, line 16 - and I should say that it is quite contrary to the assertion that is made in our learned friend’s submission at page 72 of the record at paragraph 2.1.  The fence had not been at all located; it was an exceptionally hazardous duty that he was performing.  It was not Mr O’Connor who was lifting a weight, or Mr Cuiuli who was cutting wood, when he had been cutting wood for all of his life, this was mustering at speed, attempting to cut out one isolated fly‑blown sheep against a wire which, of course, had the potential to inflict fatal injuries and did, in fact, in this instance inflict quite severe injuries on the plaintiff.

Cases such as McLean - and of course the trial judge well knew what the relevant principles were.  He went as far as to set out passages of what the Court has said in McLean.  I might say he did not say anything about such cases as O’Connor and Cuiuli and the like because they do not set out any principles, they are simply instances of the application of principles.  This was an extremely hazardous duty that he had to perform, and this Court has said on numerous occasions that an employer has an obligation to effectively accept and expect that in carrying out his duties an employee might be as distracted as this man was.  There had to be at least one instance in his 13 months - his Honour found 18 months of employment – that in the 13 months of employment, as his Honour found, that the employer should have given him adequate warning.  It is our submission that having regard to his Honour’s findings, based as they were on well‑established principles which were specifically addressed by his Honour, that there was no justification for interfering with the primary finding of liability.

GLEESON CJ:   Mr Myers, what do you say about the statements on page 42 of the application book that this was:

a known and obvious hazard –

of which your client was aware, and that your client:

had not demonstrated any lack of understanding of the danger or the need to avoid it.

MR MYERS:   I cannot say anything about it because that is correct.  But if you look at McLean v Tedman, the Court was dealing with risks that are known.  Most risks are known to employees as well as they are to employers, but this Court has found on numerous occasions in the past that that just does not relieve the employer from giving an adequate warning.

What could be more obvious to a garbage man that if he moved out, as the plaintiff did in McLean’s Case, behind a garbage truck so that on‑coming vehicles from his left could not possibly see him, that he was moving out blind and stepping into the path of a car that was coming in the opposite direction, and of course it was a case where the employer was found guilty of liability and the motorist, who really had no opportunity to avoid the plaintiff, or very little, was found equally to blame?

This Court has time and time again said it is just not good enough to say “Well, of course you appreciate the risk of stepping out behind a truck and stepping into the path of another car”.  It is something that requires that a warning be given.  And this was not, as I say, a case of a man trying to tie up a boat coming in as one would expect at fairly low speed, this was a man, at speed, attempting to cut out a sheep and cutting it out against a fence which he knew was going to have dire consequences if he came into collision with it.  But, as his Honour found and, in my submission, there was simply no justification for the Court of Appeal to interfere with his Honour’s finding in that respect, he had never, never had any sort of warning in the entire time that he had been on the property.  That, in our respectful submission, having regard to the principles which his Honour addressed properly, with the greatest of respect, did not justify an interference by the Court of Appeal with the finding of primary liability.  Having said that, I cannot say anything about the finding at page 42, but that is the sort of finding that can be made, in effect, of the every master and servant case if not in general negligence cases.

Your Honours, I should give you the other references that his Honour made specific findings about.  The plaintiff was given no formal training or instruction as to how to perform his duty, and as I say, specifically he was not told, “Now make certain you locate the fence”.  The plaintiff said he did, from time to time, keep a mental eye on it.  The employer has the obligation to initially instruct and to ensure by frequent reminders that the duty is going to be complied with.  His Honour found that:

There was a material risk of running into a fence –

at pages 16 and 17; lines, 51 on page 16 to line 10 on 17.  Of course that the risk was “foreseeable”.  Page 17, line 2.  That the risk:

demanded that the defendant took at least some steps –

and this is our principal contention:

to bring home these dangers to an employee such as the plaintiff and to ensure, so far as was reasonably practical, that the plaintiff kept in mind the warnings given to him of the necessity to keep careful lookout for fences and the like whilst engaged in activities such as mustering.

That is page 17, line 32.  Finally, at page 17 line 47, that was particularly so, as his Honour found:

whilst the plaintiff was working alone, there was always the possibility that the need to concentrate on the activities at hand would lead to a lack of attention to his own safety.

The evidence being that on past occasions, or generally speaking, the plaintiff worked in conjunction with the proprietor of the property, but he was away at the material time.  In our submission, all of his Honour’s findings were based on principle and should not have been disturbed.

I do not know if, having made those submissions in relation to the primary liability question, if your Honours then wish me to go on and deal with the Chappel v Hart issue of causation.  It does seem, particularly if one looks at what the Court of Appeal said about it, that there is need for clarification by this Court.  In our submission, the Court of Appeal has attributed to a number of your Honours’ – really, principles that your Honours have not sought to espouse in the case.  Your Honour the Chief Justice I do not think has, in any of the reported cases, expressed a view about this issue of causation ‑ ‑ ‑

GLEESON CJ:   My mind is a complete blank on that subject.

MR MYERS:   Your Honour was certainly a member of the Court in Naxakis which revisited ‑ ‑ ‑

GLEESON CJ:   You would be in reasonable shape if this were the issue that the case throws up, but I think, as you have recognised in the way you have put your argument, the threshold question is whether, having regard to the way the court dealt with the negligence issue, there is a special leave point here.

MR MYERS:   Yes, it is my respectful submission that they were clearly in error and they were clearly in error, and I do not want to be repetitious, but they were clearly in error in saying, as they did, that this case is really a similar case to those to which I have referred:  Cuiuli and O’Connor, and McLean’s Roylen Cruises, because those cases did not involve the sort of risk that was involved in this case, and once you have a greater risk involved, the obligation on the employer, as this Court has said on frequent occasions, increases accordingly.  You simply cannot leave a man to his own devices, notwithstanding that if you asked him, and as he said in his own evidence, “Of course I was aware of the risk”, but that is not good enough.  Every plaintiff who effectively is injured in a master and servant situation must realise there is a risk of some sort.  If somebody is going to be cutting timber with a saw, he is going to know that if he intrudes his hands into the saw blade that he is going to lose them.  Yet that is a classic situation where the employer is obliged to provide guards, provide warnings, ensure that he does not handle the timber in a particular way.

Your Honours, those are our primary submissions on liability.  Our submission is that the decision of his Honour the trial judge should never have been disturbed and that being the case it really followed that the Chappel v Hart principle would have allowed the plaintiff to succeed without more.

We should, perhaps, address only the one issue that, in our respectful submission, the Court of Appeal fell into error on, and that is the question of whether the plaintiff should have been specifically asked what he would have done had the warning been given.  It is our submission that it really follows from what initially was said by Justice Gaudron in Bennett v Minister of Community Welfare, which your Honour Justice Gummow adopted in Chappel v Hart that that evidence is hypothetical; it perhaps even should not be allowed, but as her Honour said, and if I could simply take the

Court to it, in 176 CLR 420, the reference that your Honour Justice Gummow referred to, toward the bottom of the page her Honour said this:

And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury.

What the Court of Appeal has really assigned to some of their Honours in making statements in relation to causation is, with the greatest of respect to them, incorrect, and to the extent that obviously Courts of Appeal, certainly in Queensland, are at odds with what Chappel v Hart and Naxakis say,
it is our submission that it is certainly a point warranting the grant of special leave.  They are our submissions, your Honours.

GLEESON CJ:   We do not need to hear you, Mr Clifford.

The primary ground on which the Court of Appeal allowed the appeal in this matter related to the question whether there was any negligence on the part of the present respondents.  That involved the application of well‑settled principles to the facts and circumstances of the case.

The Court is of the view that there are insufficient prospects of success in an appeal to warrant the grant of special leave, and the application is refused.  The applicant must pay the respondents’ costs.

AT 12.46 PM THE MATTER WAS CONCLUDED