Bigridge Pty Ltd v Moore & Ors; Neil Evans & Noel McKernan Pty Ltd v Moore & Ors; Smith v Moore & Ors

[2005] HCATrans 152

[2005] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M174 of 2004

B e t w e e n -

BIGRIDGE PTY LTD

Applicant

and

GREGORY MOORE

First Respondent

DAVID RICHARD SPREADBOROUGH

Second Respondent

SCOLARO’S CONCRETE CONSTRUCTIONS PTY LTD (IN LIQUIDATION)

Third Respondent

ANDREW DUNCAN SMITH

Fourth Respondent

NEIL EVANS & NOEL McKERNAN PTY LTD

Fifth Respondent

ANDREW YOUNG

Sixth Respondent

DAVIDSON HUGHES ESTATE PTY LTD

Seventh Respondent

HUDSON CONWAY MANAGEMENT PTY LTD

Eighth Respondent

Office of the Registry
  Melbourne  No M175 of 2004

B e t w e e n -

NEIL EVANS & NOEL McKERNAN PTY LTD

Applicant

and

GREGORY STEPHEN MOORE

First Respondent

DAVID RICHARD SPREADBOROUGH

Second Respondent

SCOLARO’S CONCRETE CONSTRUCTIONS PTY LTD

Third Respondent

BIGRIDGE PTY LTD

Fourth Respondent

ANDREW DUNCAN SMITH

Fifth Respondent

ANDREW YOUNG

Sixth Respondent

DAVIDSON HUGHES ESTATE PTY LTD

Seventh Respondent

HUDSON CONWAY MANAGEMENT PTY LTD

Eighth Respondent

Office of the Registry
  Melbourne  No M176 of 2004

B e t w e e n -

ANDREW DUNCAN SMITH

Applicant

and

GREGORY STEPHEN MOORE

First Respondent

DAVID RICHARD SPREADBOROUGH

Second Respondent

SCOLARO’S CONCRETE CONSTRUCTIONS PTY LTD

Third Respondent

BIGRIDGE PTY LTD

Fourth Respondent

NEIL EVANS & NOEL McKERNAN PTY LTD

Fifth Respondent

DAVIDSON HUGHES ESTATE PTY LTD

Sixth Respondent

HUDSON CONWAY MANAGEMENT PTY LTD

Seventh Respondent

ANDREW YOUNG

Eighth Respondent

Applications for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 2005, AT 10.12 AM

Copyright in the High Court of Australia

MR R.H. GILLIES, QC:   May it please the Court, I appear with my learned friend, MR C.J. BLANDEN, on behalf of each of the applicants.  (instructed by Deacons, Minter Ellison and Monahan & Rowell)

MR D.E. CURTAIN, QC:   May it please the Court, I appear with my learned friend, MR F.D. SACCARDO, SC on behalf of the respondent Moore, and with my learned friend, MR K.D. MUELLER, on behalf of the respondent Spreadborough.  (instructed by Ligeti Partners and Dibbs Barker Gosling)

McHUGH J:   Yes.  The Deputy Registrar has issued three certificates.  She certifies that she has been informed by K.L. Sutherland of Bent & Cougle, the liquidator of Scolaro’s Concrete Constructions Pty Ltd (in liquidation), which is named as respondent in each of the above matters, that the liquidator does not seek to file any summary of argument.  She also certifies that she has been informed by Blake Dawson Waldron, solicitors acting for Hudson Conway Management Limited, which is named as a respondent in each of the above matters, that Hudson Conway Management Limited will submit to any order of the Court save as to costs.  She also certifies that she has been informed by Moray & Agnew, solicitors for Andrew Young, who is named as a respondent in each of the above matters, that Andrew Young will submit to any order of the Court save as to costs. 

Yes, Mr Gillies.  Mr Gillies you also appear for the fourth and fifth respondent, do you not?

MR GILLIES:   Yes, rather than be in the uncomfortable position of being on both sides of the record, we would ask that the applications be treated as being a joint application, so that I can really proceed as counsel, with my learned junior, for the three applicants.

McHUGH J:   Yes.

MR GILLIES:   If the Court would treat the application as being a joint application to relieve me of that temporary embarrassment, we would be grateful.

McHUGH J:   Yes.

KIRBY J:   And that means you only get one slot of time.

MR GILLIES:   Oh, well, that is unfortunate.  Perhaps I should withdraw that application, your Honour.

KIRBY J:   But it really is the one conceptual question?

MR GILLIES:   Yes, and that one conceptual question is whether his Honour the trial judge, Justice Eames, complied with Podrebersek having stated it, whether he, for some aberrant reason, having correctly stated the law in relation to the two limbs of contribution – be they culpability or causation – whether he, having stated a law accurately, having heard argument concerning both limbs, for some unexplained reason excluded culpability from the equation in apportioning responsibility between who we have called, collectively, the “building defendants” on the one hand and the “wrestling defendants” on the other hand.  They were called the “brawling defendants” at trial, but we have toned that down a shade through the appellate process, so they became the “wrestling defendants” in the Court of Appeal. 

Your Honours, in relation to this concept, this double limb concept of culpability on the one hand and causative effect on the other, we emphasise at the outset that there was argued by all counsel – as an example, Mr Curtain’s argument is extracted at paragraph 452 on page 170 of the application book, where at paragraph 452 the argument is extracted:

Counsel for Moore and Spreadborough submitted that any negligence of their clients was substantially less than that of the builder defendants.  Their conduct, so it was submitted, was merely inadvertent, careless or incompetent, in contrast to that of the builder defendants whose conduct, so it was argued (perhaps, to varying degrees, individually, but, certainly, when combined), constituted sometimes deliberate, and invariably grossly careless, conduct, sometimes, also, being in breach of statutory obligations.

So that extracted argument of Mr Curtain, in particular, demonstrates that this culpability – this comparison of culpability concept was before his Honour and again, at paragraph 453, Mr Curtain submitted that a higher standard of care should be imposed upon the builder defendants because they dealt with matters of public safety.  He urged his Honour to apply the higher standard akin to that recognised by the judges of this Court as relating to an employer’s or an occupier’s obligation.  So it was fully argued by all counsel, but, in particular, by counsel for Moore, one of the wrestlers, that the varying degrees of culpability ought be taken into account. 

His Honour Justice Eames at 454, page 171 of the application book, accurately, we respectfully submit, stated the principle in Podrebersek concerning the dual exercise that the apportioner of liability must undertake, looking both at degree of culpability as well as the evaluation of relative causative effect.  So it was argued and his Honour applied the principle and without at this stage going into an anxious construction of the two paragraphs in Justice Eames judgment, 455 and 456, we can go to other parts of the judgment which demonstrate that his Honour was very cognisant of the need, when apportioning liability, to look at culpability as well as causation. 

Thus, his Honour at paragraph 454 dealt with the stringency of duty of care argument and referred to the decision of this Court in Nagle v Rottnest Island Authority.  Likewise, in dealing with the apportionment as between building defendants at paragraph 458 of the judgment at page 173 of the application book, his Honour said by way of introduction to his later decision concerning apportionment between builders:

Likewise, I have not heard comprehensive argument – informed by my findings – as to whether the various bases of liability of the builder defendants, or any other factors, indicate that it is “just and equitable” that I differentiate between those defendants as to their respective culpability and departures from the standard of care applicable to each of them. 

Likewise, at page 219 of the application book, there is a reference at paragraph 38 – in the context of Podrebersek and the Victorian decision of Esso v VWA – to apportionment of blame, and apportionment of blame can only relate, we would submit, to comparison of culpability.

KIRBY J:   It is a funny thing, but I once looked at all the cases where Podrebersek had been cited and in virtually all of them, notwithstanding the principles set out of being very careful about interfering, the court had made some adjustment, as indeed it did in Podrebersek itself.  So the rule cannot be an absolute rule that you never interfere.  The Court of Appeal has its function to perform and the most you can say is, “Well, it should not have interfered in this case”, but there is nothing new in this case from the point of view of the law.

MR GILLIES:   No, there is no principle to be relied upon except one.  We say that ‑ ‑ ‑

KIRBY J:   You say what happened was unjust, that the trial judge was in a better position and he had all the facts.  All of those are very strong reasons for not disturbing, but whenever you see Podrebersek cited and you go to the facts it is generally where there has been some adjustment.  I think one of the points you make here is that it was a fiddling adjustment, it was trifling with the – it is a bit like sentencing, that judges should not be fiddling with the margins.  I understand that, but ‑ ‑ ‑

McHUGH J:   But, in addition, the Court of Appeal identified error on the part of the judge. 

MR GILLIES:   Yes, we say they should not have and that is really our grievance in this appeal.  We say that that is a manifestly wrong decision to say that there was an error, because the identified error is that the judge did not take into account culpability in apportioning responsibility between the building defendants and the wrestling defendants. 

KIRBY J:   And they say he focused on causation, but what do you say about Justice Callaway’s opinion in that respect?

MR GILLIES:   We say it is completely wrong.  We say this is one of those cases where the decision of the intermediate Court of Appeal is so manifestly wrong and baseless that this Court should interfere with it.  He, in his judgment, asserts that the trial judge did not take into account culpability when we say he must necessarily have done so.  We say it is an intellectual insult to say of the trial judge that he, having heard argument on the point, having correctly cited the authority and having referred to comparison of culpability elsewhere, for some reason has purely decided the apportionment as between wrestling defendants and building defendants on a causation basis only.  It would take an astonishing rush of blood to the head to ignore the argument, ignore the law just stated, to jettison causation as a relevant factor in apportioning responsibility.  We say that the Court of Appeal has necessarily got it wrong in asserting that the trial judge did not take into account culpability. 

KIRBY J:   But even if that was so, the ultimate question is whether their orders are wrong.  We are not here to correct the reasons as such, because we would then have to consider whether, notwithstanding the way they reasoned, it was open to them to conclude, consistent with Podrebersek, that the orders that Justice Eames had made unfairly burdened the wrestlers and let your clients off the hook to that extent.

MR GILLIES:   Yes, we would say that if in fact the keystone of the Court of Appeal decision is missing, namely, that there was a comparison of culpability, then anything that flows from it should fall as well. 

McHUGH J:   I am not sure that you are being fair to Justice Callaway, because what he said was that: 

I do think that [the judge’s] division equally between the wrestling defendants and the building defendants was driven by causation. 

So he seems to be saying that the judge placed too much emphasis on causation, as opposed to culpability generally. 

MR GILLIES:   Well, in our submission ‑ ‑ ‑

KIRBY J:   That would be easy to do in the facts of this case, because you would be thinking, what actually caused the man to go over the balustrade?  Answer, all those miscreants pushing and shoving inside the place.  Yet when one thinks of who is truly responsible for it, who could have stopped it, who had the greater power, who had the greater skill, the professional talent, then the argument may be those who did the design of the balustrade in the first place.  There is, therefore, a bit of a difference there.

MR GILLIES:   Yes, but we would say that that exemplifies what a Court of Appeal should not do.  A Court of Appeal should not interfere with a matter which is something more of impression, of touch and feel, rather than application of formulae to produce a result.  We would say that that exemplifies what the authorities say that a Court of Appeal should never encounter or an approach the Court of Appeal should never adopt.  We do not say that we are being at all unfair with Mr Justice Callaway’s rationale.  We say that he gives no reason for concluding that the assessment was contribution driven, as opposed to culpability affected, and if we examine his reasons it becomes clear that he really has not. 

We say, if we go to paragraph 15 of Justice Callaway’s judgment, there is nothing there in paragraph 15 that could in any way, shape or form constitute a reason for the deduction that the division equally between the wrestling defendants and the building defendants was driven by causation.  He proceeds on, in our submission, to irrelevantly advert to the point made by Acting Justice of Appeal Dodds‑Streeton, concerning hermetic sealing of the two groups.  Well, we say that that is just a non-sequitur.  That cannot in any way, shape or form underpin a conclusion that the division was driven by causation and we say that for two reasons.  Firstly, his Honour at line 12 on page 264 said:

In my view, there is no bar to grouping defendants for the purposes of assessing contribution. 

So there is no fundamental error as far as ‑ ‑ ‑

KIRBY J:   I am not concerned about that, but what is the answer to the point that I raised earlier, which is essentially Justice Callaway’s point, that if you talk about who actually caused the incident of the wrestlers, immediately, the proximate cause was the wrestlers, and yet the power cause, the persons who had the skill, professional talent, the opportunity to stop this happening in any circumstances, a cleaner or other people extending themselves, that was your clients.  They were the ones who were there first.  They were the ones who did the design.  They were the ones who had the skill and talent.  So what is wrong with what Justice Callaway said?

MR GILLIES:   All of that is so, but the rail had stood for a long time.  Countless people had used the flight of stairs without known mishap.

KIRBY J:   That is true.

MR GILLIES:   And we are not talking about a knee‑high rail, we are talking in centimetres, not metres, and this rail had stood the test of time.  Rails all over Melbourne are the same height.  It was just that the code was changed and caught this particular rail.  So rails throughout Melbourne are the same height as the offending rail and we have not got the good burghers of Melbourne spilling like lemmings over rails ‑ ‑ ‑

KIRBY J:   No, but the code was changed for a reason.  Somebody thought that it was not high enough. 

MR GILLIES:   Yes.

KIRBY J:   And that, presumably, was based upon evidence and material about accidents that had happened elsewhere.

MR GILLIES:   Exactly.  We do not withdraw from that good point, but the propellant for the plaintiff going over the rail was the two wrestling defendants.  It was the sideward force that they imparted on him as he endeavoured to pass that put him over the rail.  Indeed, the plaintiff himself has been found 30 per cent contributorily negligent, and if we relate Mr Justice Callaway’s apportionment to that, each of the wrestling defendants is reduced to something like 10 or 11 per cent, compared to the 30 per cent of the plaintiff.  The propellant forces have each been allocated something like 10 or 11 per cent against the plaintiff’s 30 per cent and all he did was try to pass them. 

So we say that the Justice Callaway reapportionment really skews the whole result.  In our submission, he illegitimately starts from the point that he does not like the result and then tracks back to analyse the judgment of Justice Eames, having conferred upon it the epithet of being a “brilliant” judgment, but even using the brilliance of the judgment to demonstrate that he must have gone wrong there; having identified an error, said that, “My ultimate conclusion demonstrates the error”.  It should go the other way.  The ultimate conclusion should not precede a finding of error. 

KIRBY J:   It is a very curious thing how the mind works and how judgment works and how decisions are made, but, to some extent, when you are talking about culpability, you cannot get away from impression, I am afraid.

MR GILLIES:   Well, in our submission, there should be a condition precedent ‑ ‑ ‑

KIRBY J:   That is a reason for restraint, for not disturbing it, the fact that different people and clever people can have different reactions.

MR GILLIES:   In the circumstance of an apportionment of liability, in our submission, that is an illegitimate approach.  There must be an identified error of principle preceding any contemplation of reassessment or readjustment of the parties’ rights.  We say that the two reasons advanced here are just not reasons.  The hermetically sealing argument of Acting Justice Dodds‑Streeton is completely irrelevant.  It is wrong and irrelevant.  It is wrong because the two camps were legitimately viewed and, secondly, it is wrong to say that each would have been held 16.7 responsible if in fact there were three wrestling defendants, because there were submissions made within the wrestling camp that one should be made less responsible than the other.  It was not accepted that they would be equally responsible. 

So the reference to Justice Dodds-Streeton is irrelevant and it is wrong.  Then what his Honour refers to at paragraph 16 as being “Another factor” at page 265:

Another factor that has influenced me is the order that I shall ultimately propose. 

Now, we say that – and I am conscious of what Justice McHugh said a moment ago about us being unfair – but regard that as being an outrageous conclusion.  We regard that as being a logical impossibility, that one can look at one’s ultimate order to fortify one’s train of thought.  It is a complete reversal of what should happen, and in our submission ‑ ‑ ‑

McHUGH J:   Well, I am not sure that that is right.  In the well known statement of Justice Kitto in Australian Coal and Shale concerning interfering with discretionary judgments he pointed out that even though you cannot identify any error, nevertheless the result may indicate that error lurks in the reasoning, even though you cannot put your finger on it.

KIRBY J:   In essence, that is what Justice Dixon said in House v The King, that there is that last category where you cannot quite say what the reason is, but you know that it is wrong.

MR GILLIES:   Well, we would submit in the context of apportionment that that is not a legitimate approach.  We say that if that is the approach, logic and the Marquess of Queensberry go out the window together. 

KIRBY J:   I do not see how that works in the context of a legal test of culpability, which is a matter of assessment, judgment.

McHUGH J:   Discretionary judgment.

MR GILLIES:   Yes, but here it is said that it was not taken into account. 

McHUGH J:   Well, I see your time is up.  Thank you, Mr Gillies.

MR GILLIES:   May it please your Honours.

McHUGH J:   Yes, we need not hear you, Mr Curtain.

This case concerns questions of fact and degree concerning the apportionment among defendants of contribution to damages recovered by a plaintiff.

We are not convinced that the Court of Appeal of the Supreme Court of Victoria erred in its judgment.  That court referred to the applicable law and cited the relevant cases in this court.  No important new point of legal principle applies.  Inevitably, different views can be had of degrees of culpability in cases of this kind.  The primary judge had an undoubted function, but so too did the Court of Appeal subject to the principles expounded by this Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 495.

The Court of Appeal thought, in our view correctly, that the primary judge’s apportionment was driven by the issue of causation.  We do not consider that there are reasonable prospects of success if an appeal were granted.  In those circumstances, the application must be dismissed with costs.

The Court will now adjourn to reconstitute.

AT 10.36 AM THE MATTER WAS CONCLUDED