Coote v Forestry Tasmania

[2005] HCATrans 977

[2005] HCATrans 977

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H1 of 2005

B e t w e e n -

GRAHAM COOTE

Applicant

and

FORESTRY TASMANIA

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 NOVEMBER 2005, AT 3.10 PM

Copyright in the High Court of Australia

MR J. RUSKIN, QC:   May it please the Court, in this application I appear with my learned friend, MR S.A. O’MEARA, for the applicant.  (instructed by Hilliard and Associates)

MR D.E. CURTAIN, QC:   May it please the Court, I appear with my learned friend, MR S.T. PITT, on behalf of the respondent.  (instructed by Phillips Fox)

GUMMOW J:   Thank you.

MR RUSKIN:   If the Court pleases, the point of importance in this case arises from the manner in which the Court of Appeal dealt with the question of breach of duty and apportionment.  We say that the Court of Appeal erroneously dealt with the question of breach in two crucial respects and the first error led inexorably to the second error.  It was, with respect, we respectfully submit, the Court of Appeal mischaracterised and misstated the crucial finding of fact bearing on breach and the second error was that the Court of Appeal considered the conduct of the applicant as conclusive of the question of breach instead of properly considering the conduct of the respondent, thus leaving no room for apportionment which was the error that was elucidated in the case of Thompson v Woolworths, which we have referred to, and in particular paragraph [37] of that case, a case which was, in a sort of chronological catastrophe, decided a few weeks after this case.

If we can take the Court at once to the crucial error of fact finding by the Court of Appeal.  It arises or it is seen in the contrast between paragraphs 50 and 56 of the judgment of the majority.  The Court will recall that this was a case where the plaintiff/applicant was confronted by a harvesting plan and the harvesting plan, which is referred at page 25, the relevant part for this appeal is point (3) which said, in effect, the aim of the operation is to maximise sawlogs and minimise pulpwood.  It was in the confrontation of that harvesting plan that the applicant had to work out just what he was allowed to do with respect to pulpwood as distinct from saw wood.

The resolution of that fact involved the primary judge having to decide or distil the evidence of the applicant, on the one hand, and Johnstone, the supervisor for the respondent, on the other hand.  It was clear that the primary judge did distil that evidence and he, we would say, was in the unique position of best being able to do it.  In 50 the Court said this:

The difficulty about that phrase –

about prohibition and pulp trees, was –

the incontestable finding that “it was common ground that the plaintiff had the right to fell any tree that he considered too much of a danger to leave standing”.

With respect, completely correct.  At 56 the Court says this, having decided that the case was not in favour of the plaintiff/applicant:

The appellant, by its agent Mr Johnstone, did not need to tell the respondent “to first fell any trees that potentially posed a danger”.

Potentially posed a danger: 

He already knew that, and as I have said, perhaps repetitiously, that was common ground.

That is the error.  That was not common ground.  Indeed, that was the very divergence between the parties.  The applicant’s whole case was “I was not permitted to fell pulp trees that potentially posed a danger.  If I was so permitted I would have felled every pulp tree, but I was not permitted to.  I was only permitted to fell pulp trees that were too dangerous and I had to make that call and the too dangerous ones were the ones which I would hit by the barrelling effect of when I cut the saw tree it would directly hit the pulp tree.  For those pulp trees that I would brush, the potentially dangerous ones, I was not permitted to deal with.”

The trial judge had to resolve that factual difference because indubitably, if the system enforced and supervised by the respondent was you are only permitted to fell pulp trees that were too dangerous but do not go round felling pulp trees that are only potentially dangerous, then indubitably it would have been open to the trial judge, as he did, to find that was an unsafe system.

GUMMOW J:   What do you say about paragraph 57?

MR RUSKIN:  

The totality of the evidence leads to the conclusion that . . . the respondent assessed that the danger posed by . . . was not sufficiently high to require him to fell it first.

Yes, that has to be interpreted in the light of the divergence that I have referred to.  What that meant was no more than this.  It is quite true that the applicant made a judgment that the pulp tree that ended up rendering him paraplegic by reason of the branch, that pulp tree was not one that fell into the too dangerous category.  It fell into the potentially dangerous category because he was going to get away with either missing it or brushing it.  Therefore, concordant with the system imposed on him by the defendant/respondent, as found by the trial judge, he was not permitted to fell it.

The crucial evidence in that respect was in the conduct, as seen by the trial judge, of the respondent in telling him, in querying him, when he found pulp trees on the ground.  We referred to just – if I could just read to the Court a couple of lines of that from the transcript which we sent to the Court yesterday.  It is really at page 56.  The evidence was this - this is at line 19:

I was told by Peter Johnson that if there was – because of a previous accident some weeks before, or whatever, that on the logging track if there was a pulp tree, that the skidder had been pulling logs around, and it looked unsafe where the skidder had been pulling logs around it and dug the dirt up and it looked like it was going to fall over, well then I was to fall that tree.  And that’s basically all he said about unsafe trees.

Then the next question comes:

Yes……Well if I was going to be working right beside it, or it if was going to be in my – if I was going to head it in any way, like smack it well then I’d fall it.  But apart from that I wouldn’t – I wasn’t no.

And then at the very top of the page, that is the end of another sentence before, he says this:

But apart from that, every time I saw him in the bush he would make sure that I was only taking saw logs.

That is followed by another one‑liner at page 59, line 20:

Did he ever make any particular comment to you about any particular trees that you’d fallen or not fallen?.......Oh he did make a comment once about the amount of pulp that was on the landing and I think he did mention something about a stump or something he’d seen or a tree he’s seen that I’d fell and questioned me about it, a pulp tree.

The applicant said many times in cross‑examination the proposition that it was made abundantly clear to him that, in effect, he was pressured only to fell those too dangerous trees.  So the trial judge had to distil the two points of view, on the one hand the harvesting plan, which did not forbid you to remove a pulp tree, and the system in fact in operation on the other.  It was a classic par excellence Fox v Percy feeling for the evidence or the vibe, as the famous film says.

Your Honours, this is what the trial judge said.  This was his core finding which we submit the Court of Appeal missed entirely, with respect.  That comes at page 5 of the judgment of the trial judge where he is making up his mind as to what to make of the two points of view.  He does not accept either absolutely.  He distils it.  May I take the Court to 11.  That is at page 4 of the judgment - I am sorry, in 5 of the book.  Page 4 of the judgment, he says:

Mr Johnstone gave his evidence in a credible manner . . . Mr Johnstone and the plaintiff both seemed to me to be practical men, and men of reasonable intelligence.  I do not think there was any real chance of a misunderstanding between them as to how readily Mr Johnstone wanted the plaintiff to fell pulp trees.  There may have been some inaccuracy on the plaintiff’s part in recounting what Mr Johnstone said to him on that subject.  There may have been some inaccuracy on his part as to when his initial conversation with Mr Johnstone at the coupe in question occurred.   But with those reservations –

and here is the nub –

I accept the plaintiff’s evidence as honest and generally reliable.  Mr Johnstone may not have told him, in absolute terms, that he was not to fell any trees that were suitable for pulpwood in that coupe.  However I am satisfied that Mr Johnstone did give the plaintiff a direction to the effect –

and here is the key –

that he was not to fell pulp trees as he normally would; that the plaintiff rightly perceived Mr Johnstone’s direction as prohibiting him from felling the pulp tree from which a branch ultimately fell and hit him; that when Mr Johnstone –

here is the next finding –

visited the plaintiff at the coupe from time to time, he did so for the purpose of checking that his direction was being complied with; and that the plaintiff rightly perceived that Mr Johnstone was supervising him with that purpose in mind.  The plaintiff’s evidence as to the circumstances in which he was and was not permitted to fell pulp trees is supported to some extent by the expected sawlog and pulpwood production figures –

So there was the primary judge in the best position to distil the two points of view.  If it was open to the primary judge to hold that the reality of the situation in terms of how the harvest plan was interpreted, if the reality was that every time the plaintiff was going to fell a pulp tree, the supervisor is going to come along and question whether it fell into the right category, that the primary judge was entitled to find that the plaintiff was in the position where he had to take a very conservative view indeed of the pulp trees he had to fell.  Do not fall the ones that are potential, fell the ones that are in the too dangerous category.  He was injured precisely because he was not permitted to do them in the way that safety suggested.  That finding comes in the finding at 31 of the primary judge where I think he says this, on page 10, 9 of the judgment:

On the basis of the plaintiff’s evidence, I find that Mr Johnstone regularly supervised the plaintiff’s work, and gave him instructions to the effect that he was not to fell pulp trees as readily as he ordinarily would.  I find that the plaintiff’s decision not to fell the pulp tree was consistent with obedience to Mr Johnstone’s instructions.  Because of the instructions given by Mr Johnstone to the plaintiff, and because of the obvious damage observed by Mr Dargusch in the area where the plaintiff had earlier worked, it was reasonably foreseeable that a worker in the coupe might be injured . . . 

33       I find that the third defendant was negligent in failing to instruct the plaintiff to fell first any trees that potentially posed a danger in that way, and in failing, through supervision, to ensure that he did so.

That is where the word “potentially” comes in:

I find that these breaches of duty caused the [relevant] injury to the plaintiff since they resulted in him not felling the pulpwood tree, felling other trees in such positions that they hit the pulpwood tree, the dislodging of a branch –

fell and so forth.  Now, that is where the error came.  The Court of Appeal seemed to the view that really the trial judge found in effect that it was common ground he could fell the potentially dangerous trees and we will say right now that if that was the finding of the trial judge, we would not be here, because the plaintiff well knew that a potentially dangerous pulp tree was one he wanted to fell, but his whole case was he was not permitted to do it.

The second error was how the court then characterised the apportionment versus loss aspect in the way that was said in Johnstone.  What they did in effect, we would submit, was to revive, give renaissance to what used to be fashionable in the 1960s, the last opportunity rule which said this.  “You knew”, says the Court of Appeal, “that you could fell the tree.  You did not fall the tree, your fault”.  Nothing about apportionment.  It is not surprising, with respect, that the court fell into that error because they wrongly characterised the crucial evidence that the trial judge found about breach.

GUMMOW J:   Are these matters adequately reflected in your draft notice of appeal, Mr Ruskin, at page 44 of the book?

MR RUSKIN:   We hope they were adequately reflected.  Those grounds, we would have to concede, are a bit Delphic, your Honour.

GUMMOW J:   They are.

MR RUSKIN:   But we do hope that they were more reflected in the reply.  There is a reply at 55 which really encapsulates what I have to say and we would say that the grounds might have better been – we can redraw the grounds very succinctly to raise these two points, but they are absolutely reflected in the reply and those are the matters we wish to put before the Court.

GUMMOW J:   Thank you.  Yes, Mr Curtain.

MR CURTAIN:   Thank you, your Honour.  In our respectful submission, this is a perfectly straightforward case.  First of all – and my learned friend has not pressed the argument that there is an employer‑like relationship, wisely perhaps.  The applicant was an independent contractor twice removed from the respondent.  It is clear that he made an error of judgment and the point that is central to my learned friend’s submissions about the way in which he says the Full Court fell into error was picked up by the Full Court of the Court of Appeal at paragraph 48 of their judgment.  They recite that passage of Justice Blow’s judgment that my learned friend has taken the Court to and they analyse the first part of that in paragraph 48 and then Justice Underwood says:

It seems to me that that passage is in accordance with the evidence except for the words, “that the plaintiff rightly perceived Mr Johnstone’s direction as prohibiting him from felling the pulp tree from which a branch ultimate[ly] fell and hit him”.

The difficulty about that phrase lies in the incontestable finding that “it was common ground that the plaintiff had the right to fell any tree that he considered too much of a danger to leave standing”.

We respectfully submit, the danger and potential danger is a nice point, but it is only a danger when the potential becomes realised and, we respectfully submit, the words are used interchangeably.  Over the page at paragraph 56, the court points to some of the passages where Mr Coote, the applicant, makes the concession of his right.  You will see in the second part of paragraph 56:

“But you were in no doubt that as the feller working on the ground, that if you considered any tree to be unsafe, you could remove it…Yes.

That is page 92, line 45 of the transcript:

And that included saw trees and it included pulp trees, didn’t it?…Yes.

Page 93 - and he goes on over the page – I am sorry, at the foot of that page:

If you found any tree that was unsafe you could remove it?…Yes.

But there are other instances of that happening which we have set out in our summary of argument.  There are also instances in our argument at 2.1.  We have said the trial judge found that the applicant had the right to fell any tree that he considered too much of a danger to leave standing.  Other instances are found at page 92 line 36, page 99 line 16, page 107 line 27 and 108 line 30.

What the applicant says here is that, notwithstanding the concession of Mr Coote that he knew he could fall any tree that he considered to be a danger, the respondent, that is the Forestry Commission, which, as I said, is twice removed – there is the Forestry Commission which licenses North Broken Hill which assigns its licence to Wesley Vale which subcontracts to the third defendant originally, the second and third defendants having settled with the applicant, and then the applicant himself is a contractor of that defendant - the argument put by my learned friend is that a supervisor should have been on hand to watch every tree an experienced tree feller felled to make sure that, with his admitted knowledge, he had the right to fall any tree that he considered a danger, that he did so.

GUMMOW J:   What do you say as to page 56 of the book in the applicant’s reply - line 4, “The real issue”.

MR CURTAIN:   I am just looking for it.  The real issue was why negligent and successful pressure on the plaintiff - well, we respectfully submit, there was no pressure on the plaintiff.  The plaintiff conceded time after time in cross‑examination that, notwithstanding anything that had been said, he had the right to fall any tree that was considered dangerous.  We respectfully submit, it was not negligent because Mr Coote conceded he was an experienced tree feller, he had worked closely with Mr Johnstone.  For many years they had been part of the same organisation and they knew each other very well.  He conceded that his experience in what he was doing was vast.  So, we respectfully submit it was neither negligent nor successful pressure not to fell trees in the commercial interests of the respondent.

We say that is egregious.  The only benefit that the Forestry Commission could have achieved from having trees fallen was the payment of royalties by Wesley Vale to it pursuant to the grant of the licence.  There is such a distance between the applicant and the respondent in these circumstances.  It is not like the situation where a worker has been pressured to be more productive so that the employer can make more money.  It is far removed from that.

In our supplementary summary of argument we point out that the assertions that are contained in that reply, in page 2 of our supplementary summary of argument, on page 59 of the application book, we describe how the commercial interests are misconceived, in our respectful submission.  In the first part of it we point out that Forestry Tasmania was not responsible for harvesting the coupe and we point out the distance in relationship between the plaintiff and the defendant, as they were. 

That is not to say that no duty of care is owed, but the relationship must be looked at to examine the nature and breadth of the duty of care and, we respectfully submit, in the circumstances of this case it could not be said that there was a breach, that it is not to the point that the trial judge had a particular advantage over the Court of Appeal because the Court of Appeal actually used the error that the trial judge fell into in making a quantum leap, as I have taken the Court to, to find for Mr Coote and, we respectfully submit that there was no error whatsoever in the decision of the Court of Appeal.  If the Court please.

GUMMOW J:   Thank you.

MR RUSKIN:   Three short matters.  There is a world of difference between instructions that say you are restricted to removing pulp trees that are too dangerous as distinct from potentially dangerous.  The transcript which we included and after all, the trial judge heard it all, includes these questions at pages 91 to 92 and he is entitled as the primary judge to prefer the gravamen of the evidence, not every question and answer, at 91 – it is in cross‑examination at line 30:

And you were clearly told that all trees that were considered to be unsafe by the contractor were to be removed?…Yes.

That was a part of what you were informed in the timber harvesting plant, wasn’t it?…Yes.

And for that reason you felled pulp trees where you felt there was a safety issues involved?…Where I was going to break one off.

Well, it doesn’t say that, does it, in the plans.  It says “all trees that are considered to be unsafe by the contractor are to be removed.”…Well if I was going to do that, I would have taken all the pulp trees out.  Every pulp tree to me is considered unsafe . . . 

So you considered all pulp trees to be unsafe?…Yes . . . 

Why?…Because they’re the worst trees of the lot, they’re rotten, they’re bent, they’re twisty . . . 

What Peter Johnson said to you was that this was essentially a saw log recovery exercise……Yes.

He made it quite clear that you could take the pulp trees out if you thought there was a need to do so……Only if they were in my way.

He emphasised to you that any tree that you considered to be unsafe could be removed……Yes, if they were in my way.

No, what Peter Johnson said to you is that all trees that you considered to be unsafe were to be removed…He didn’t quite say it like that.

But you were in no doubt that as the feller working on the ground, that if you considered any tree to be unsafe, you could remove it.…Yes.

And that included saw trees . . .Yes.

And it included any other species that might be in there . . .Yes -

and so forth.  That is, of course, in the context of the restrictive way in which he was allowed to do it.  All those, we say, your Honour, were matters which entitled the primary judge to make that core finding of

pressure which we referred to.  Pressure must be coming from the feeling that the judge had in distilling the evidence.  The final point is this is not a case in which we ever argued that the supervisor should be there every moment telling him not to do and what not to do.  The negligence complaint was in the system, the system that restricted the safe or limited the safe felling of the pulp trees.  May it please the Court.

GUMMOW J:   Thank you, Mr Ruskin.  There will be a grant of leave in this matter which we believe will be a half‑day case.  The notice of appeal presently set out on page 44 in draft will, however, need revision as indicated in the course of argument.

MR RUSKIN:   May it please the Court.

MR CURTAIN:   If the Court please.

AT 3.37 PM THE MATTER WAS CONCLUDED