Bluescope Steel (AIS) Pty Limited v MacKinnon & Ors

[2009] HCATrans 253

[2009] HCATrans 253

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S123 of 2009

B e t w e e n -

BLUESCOPE STEEL (AIS) PTY LIMITED ACN 000 019 231 (FORMERLY KNOWN AS BHP STEEL (AIS) PTY LTD)

Applicant

and

DR ANGUS MacKINNON BY HIS TUTOR NANTIA MacKINNON

First Respondent

DALMAU & ASSOCIATES PTY LTD
ACN 010 341 341

Second Respondent

DRAFT ONE COMMUNICATIONS PTY LIMITED

Third Respondent

McKENZIE & ASSOCIATES PTY LIMITED

Fourth Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 OCTOBER 2009, AT 11.10 AM

Copyright in the High Court of Australia

__________________

MR M.J. JOSEPH, SC:   If the Court pleases, I appear with MS V.M. HEATH for the applicant.  (instructed by Sparke Helmore Solicitors)

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MR E.G. ROMANIUK, for the first respondent.  (instructed by Keddies Lawyers)

GUMMOW J:   There is no appearance, I think, for the second respondent and there is a submitting appearance from the remaining third and fourth respondents.  Yes, Mr Joseph.

MR JOSEPH:   If the Court pleases, the special leave application involves the content of the duty of care relevant in this particular case as well as the circumstances that give rise to breach.  The first issue to be considered is at paragraph 59 of the Court of Appeal at page 294. 

GUMMOW J:   What remedy would you seek from this Court, Mr Joseph, if you got leave?

MR JOSEPH:   We seek a verdict.

GUMMOW J:   I see.  The Court of Appeal ordered a new trial.

MR JOSEPH:   Yes.

GUMMOW J:   You want to displace that?

MR JOSEPH:   Yes, firstly because the content of the duty which was considered by the Court of Appeal was erroneous when, at page 294, his Honour held that it was irrelevant as to whether the respondent was compelled or invited to attend the course.  Central to this case, and similar as was in Koehler, was the fact that the consent of the particular worker is important in informing the court of the extent and nature of the duty of care.  In this particular case there was no obligation on the employee to attend this course and, indeed, he was offered the opportunity to not attend the course but insisted on attending the course.

Now, his Honour and the Court of Appeal below did not consider those matters of any relevance to either consider in the context of content but certainly not in the context of breach and, in our submission, it is quite clear from Koehler that this Court considers that consent, and informed consent at that, is very much a relevant consideration in determining the limits which an employer is required to engage to protect employees from reasonable risk of injury.  So the first point which the ground of special leave relates to is the failure by the Court of Appeal to properly ascertain and indeed apply Koehler as it embarked on the consideration of breach.

I should say in passing that his Honour was not correct when he said that he did not understand my client to make any submission to the contrary.  We very much relied on the concept of consent as a relevant consideration.  To some extent, his Honour acknowledges that in paragraph 83 of his judgment at page 301 wherein he summarises our submission as including the fact that the worker, at line 49, “was very keen to attend the course”, and that was indeed part of our case.  Thus, if one comes to the issue of breach, his Honour had already in his mind at the outset, and the court generally, ignoring the fact that consent of the employee to attend the course and the fact it was a voluntary option was to be ignored.  In our submission, that led to a fundamental error in the application of duty at the duty level in the appeal.

The second matter which we would wish to agitate in this Court as a special leave matter relates to the total absence of any evidence of what was an appropriate standard of care in the circumstances of the case.  Whilst it is acceptable that that is often a factual inquiry, the matter in fact was determined by the Court of Appeal absent such evidence just on the assumption that because a concern had been expressed in an email there was a duty to respond to that email. 

Now, our submission is that the Court of Appeal wrongly determined the issue of breach as being an issue concerned with whether or not there was a response to the email.  The email, as your Honours are no doubt aware, relates to not any risk of injury but, rather, whether or not the employee had too much on his plate at home to attend this course.  Your Honour, to understand that submission, I will need to just take you to a document not referred to by the Court of Appeal but which is, in our submission, critical to the understanding of the email. 

In the appeal book at 341 is the initiating letter that invites the worker to the course.  At the top of 343 is the details form that he was asked to fill out to inform those doing the screening.  At 344, in particular at 346, you will see set out the requirements of participants and, in particular, at 346, at the fourth dot point:

We assume that you have completed accurately and fully the Personal Details Form, especially the last item which asks you to tell us about life stresses you or your family may be experiencing.  (NOTE:  This information is available only to the staff of the particular program you are attending and no-one else.)

Further down, the third-last dot point:

We assume you will arrange with your superiors, subordinates and peers to leave you free of work demands for the duration of the course.

At the top of the next page, critically, in our submission:

The course is quite demanding of participants’ energy and attention.  It is also an extremely satisfying and useful experience.

As you can see from the above, the social contract is an essential component of the effectiveness of the Steel Leadership Course experience.  In the event that your family situation does not allow you to comfortably comply with all the above assumptions, then it is understood that your family needs to take precedence at this point in time and a place on a future Steel Leadership program will be held for you when your family situation ‑ ‑ ‑

GUMMOW J:   We can read all of this, Mr Joseph.  What I want to ask you is – and now you have got to focus on this – what do you say as to Mr Toomey’s submissions at page 365 of the application book dealing with the treatment of causation by the trial judge which the Court of Appeal said was:

“so inadequate that even if this Court were prepared to make its own findings on breach of duty, the matter would have to go back for retrial in any event” and it is an “inevitable conclusion . . . that the trial judge erred in his treatment of causation –

et cetera, so that a retrial was inevitable and what Mr Toomey says at paragraph 27 of his submissions:

When the trial juge came to the question of diagnosis he declined to choose between the two diagnoses and so made determination of the vital question impossible.

If that is right, how can you seek a verdict in this Court rather than retention of the order for a new trial made by the Court of Appeal?

MR JOSEPH:   Your Honour, we have not sought to uphold the causation issue, but what we do say is that there is no evidence of any breach of duty of care and no evidence of causation.  They did not deal with our notice of contention other than to say it is difficult.  They did not deal with our notice of contention in respect of breach.  Your Honour, this trial went for a long time on ‑ ‑ ‑

GUMMOW J:   In paragraph 28, Mr Toomey says they did.

MR JOSEPH:   Well, your Honour, they did not, with respect.  They sought to deal with the issue of causation in an abbreviated form but they never dealt with the notice of contention in respect of breach.  What the short point is in respect of breach is that there was no evidence as to the degree and magnitude of the risk which had to be evaluated.  Absent that evidence, your Honour, there would be no need for this Court to deal with the issue of causation if we are successful on the no evidence of the breach point.

On the breach point, the way in which the Court of Appeal sought to deal with it, in our submission, was erroneous.  They sought to deal with it by reference to the fact that there was no response to the email.  The real issue on the breach was whether or not it was reasonable to allow the employee to attend the course.  That required a consideration of the fact that he had consented, the fact that there had been a screening process, the fact that there were systems in place at the course that would have attended to any potential illness that might be caused or might have occurred.

Absent such evidence as to the magnitude and gravity of the risk, it is our submission that this Court would find that there was no need for the court to deal with, ultimately, causation because of that lack of evidence and lack of, indeed, expert evidence.  It involves, as we have said in our submission, your Honour, the need to identify with some particularity the limits to which it could be said that in circumstances where an employee consents and knows of the risks associated with attending the course still insists on attending the course.  What further must an employer do in acting reasonably in permitting that person to attend in circumstances where his

health and welfare are being addressed and will continue to be addressed whilst at the course?  If the Court pleases.

GUMMOW J:   We do not need to call on you, Mr Toomey.

There are insufficient prospects of the applicant persuading this Court to displace the order for a new trial which was made by the New South Wales Court of Appeal to warrant a grant of special leave in this matter.  Special leave is refused with costs.

AT 11.22 AM THE MATTER WAS CONCLUDED