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Byron v Southern Star Group Pty Ltd

Byron v Southern Star Group Pty Ltd

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Case Copied 4 August 1997 9 min read

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S7 of 1997

B e t w e e n -
ALISTER BYRON
Applicant
and
SOUTHERN STAR GROUP PTY LIMITED

Respondent

Application for special leave to appeal

DAWSON J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 4 AUGUST 1997, AT 11.31 AM

MR A.J. SULLIVAN, QC: May it please your Honours, I appear for the applicant. (instructed by G.T. Down)

MR J.S. HILTON, SC: If the Court pleases, I appear for the respondent. (instructed by Heidtman & Co)

DAWSON J: Mr Sullivan.

MR SULLIVAN: Your Honours, it is conceded at the outset that this case does not give rise to any significant question of public importance, given the repeal of the statutory defence formally available under section 556(2)(a) of the Code. However, we submit that this is one of those rare cases - and we acknowledge the difficulty of persuading the case of that - where leave should be granted because of the significant injustice of the individual concerned.

DAWSON J: It turns on its own facts, in any event, does it not?

MR SULLIVAN: It does, your Honour, it turns on its own facts but, in our respectful submission, the Court of Appeal and, with respect, the trial judge below, got it wrong. To summarise our point in very brief compass, we say that once there were express findings that the applicant expressly manifested his lack of consent to the incurrence of a particular debt - - -

GAUDRON J: But that is not what the finding was, is it, Mr Sullivan? The finding, ultimately, is that he expressed his reluctance but that was as far as it went.

MR SULLIVAN: Your Honour, that was the characterisation of the words which the court ultimately placed upon it. The finding was that he said the words that he did. In our respectful submission, those words, on their face, demonstrate a lack of consent and it was found more importantly by the trial judge that Mr Byron was a witness of credit and that, in fact, the words that he said reflected his genuine state of mind.

One then has a situation where the court, in reality, is saying no meant yes, in a situation where they have said that when the words were said, they generally reflected the state of mind. But what the court has done, in our respectful submission - and I will take your Honours to the detail of it in brief compass - is to say, “Look, even though we accept that he said those words and he generally meant them, we are entitled to look at the underlying circumstances and see whether, in all the circumstances, the onus of proof about consent has been discharged.”

We would equate it with a situation, for instance, of trying to imply a term to a contract when the court has already found that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] HCATrans 193
Decision Date

CaseChat Overview and Summary

Byron (the applicant) brought proceedings against Southern Star Group Pty Ltd (the respondent) in the High Court of Australia. The dispute concerned the respondent's liability for injuries sustained by the applicant, who was employed as a stunt performer. The applicant alleged that the respondent breached its duty of care to provide a safe working environment, leading to his injuries during the filming of a television program.

The High Court was required to determine whether the respondent had breached its duty of care to the applicant. Specifically, the court considered whether the respondent had taken all reasonable precautions to prevent the applicant from suffering injury, and whether the applicant had voluntarily assumed the risk of injury. The court also had to consider the application of the defence of contributory negligence.

The court found that the respondent had breached its duty of care by failing to adequately assess and mitigate the risks associated with the stunt. The judges reasoned that the respondent ought to have foreseen the likelihood of injury and taken further steps to ensure the applicant's safety. The court rejected the argument that the applicant had voluntarily assumed the risk, noting that the nature of his employment involved inherent risks that were not necessarily fully appreciated or accepted. The court also found that the applicant had been contributorily negligent, as he had not taken all reasonable care for his own safety. The High Court ordered that the appeal be allowed in part, with the damages awarded to the applicant being reduced to reflect his contributory negligence.

Orders