Czatyrko v Edith Cowan University

[2004] HCATrans 176

[2004] HCATrans 176

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P134 of 2002

B e t w e e n -

BRETT GEORGE JERZY CZATYRKO

Applicant

and

EDITH COWAN UNIVERSITY

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 28 MAY 2004, AT 11.00 AM

Copyright in the High Court of Australia

MR B.L. NUGAWELA:   If it please the Court, I appear for the applicant.  (instructed by Vertannes Georgiou)

MS B.A. MANGAN:   If it please the Court, I appear for the respondent.  (instructed by Phillips Fox)

McHUGH J:   Yes, Mr Nugawela.

MR NUGAWELA:   Thank you, your Honour.  Can I take your Honour to page 40 of the application book.  There, in summary form, your Honours, in subparagraph (b) is what we say the underlying basis of the findings of the learned judge and of the Full Court and (i) is clear that the risk of stepping back was reasonably foreseeable; (ii) the risk of falling after stepping back and sustaining an injury was also foreseeable; (iii) practicable measures were available either in the form of oral warning or by a beeper; and compendiously, or collectively, your Honours, (iv) with (v) we say is an effective conclusion of the Full Court that no duty of care could arise in the circumstances of this case because ‑ ‑ ‑

McHUGH J:   Well, not that no duty of care could arise, but that there was no breach of the duty.

MR NUGAWELA:   I understand that is put against me by my learned friend.  We say in the first instance – and I can take your Honours to the reasoning of the Full Court where we say it is slightly obscure as to whether they were deciding this matter on the basis of breach or on the basis of scope of the duty of care because of the incursion of this concept of obviousness of risk.  Commencing at reasons paragraph ‑ ‑ ‑

McHUGH J:   But you cannot.  I mean, the law has been settled now for 90 years, or almost 90 years, that an employer owes an employee a duty to take reasonable care in all the circumstances of the case.

MR NUGAWELA:   There is no question of that, your Honour, and harking back, I suppose, your Honour Justice McHugh, to the pronouncements of this Court in McLean v Tedman, there is a tension between the scope of the duty of care in the context of employer/employee’s relations and the conflict between, or the overlap between obviousness of risk and inadvertence on the part of the plaintiff.  If your Honours were to accept at least as a starting point that the Full Court resolved this whole appeal on the basis of the scope of a duty of care, the ‑ ‑ ‑

McHUGH J:   There is a passage in Justice Taylor’s judgment in Smith v BHP 97 CLR where his Honour says that the issue of inadvertence is a

variable factor which must be taken into account in determining the standard of care required of an employer.  That is your point, is it not, that the employer was obliged to take into account the risk of inadvertence on the part of an employee?

MR NUGAWELA:   As was the Full Court in determining the appeal.

McHUGH J:   Yes.

CALLINAN J:   There is no question about the duty.  Nobody is arguing that there was no duty, Mr Nugawela.  I would not even waste time on that.

McHUGH J:   Yes, we might hear from your opponent.

MR NUGAWELA:   Very well.

McHUGH J:   Yes, Ms Mangan.

MS MANGAN:   Thank you, your Honours.  The essence, I think, of the application is as set out in paragraph 2(a) of the amended application which is at page 40 of the application book and that is that:

The Honourable Full Court relied upon dicta in Woods . . . and Brodie . . . as requiring a departure from, or providing a license to depart from, the requisite judicial evaluation required by Wyong Shire Council v Shirt . . . and McLean v Tedman –

It is in response to that that the respondent in this case says there is absolutely no basis for that criticism and ‑ ‑ ‑

McHUGH J:   Justice Kirby, as recently as yesterday, has recanted what he said in Romeo and, in any event, how can you carry those statements across to a different field of employer’s liability?  The duty is held to be a non‑delegable duty and it is an obviously higher duty.  Most accidents would not happen except by inadvertence on the part of employees who become injured as a result of failing to heed obvious risks.  You might as well shut the book on employer’s liability if this decision stands.

MS MANGAN:   Your Honour, I think if ‑ ‑ ‑

CALLINAN J:   Well, there is still a question of the employee’s obligation.  The employee is not without obligation.

MS MANGAN:   That is right, your Honour.

CALLINAN J:   But what you should be focusing on, I think, is the matter that Justice McHugh has put to you, or put to your opponent really, is was this a case of inadvertence against which your client could and should have guarded?

MS MANGAN:   That takes your Honours to Justice Murray’s judgment which is the judgment made on behalf of the Supreme Court.  There is no question, I would submit, that he went through the proper process as set out in the many different authorities and, for example, as you have pointed out, he accepted that the question was whether there was a breach of duty and then went on to state what the obligation of the respondent was and he did not refer to the public liability authorities of Romeo and he referred to the duty of care set out in Wyong, which is the standard, and then McLean and also referred to the Bankstown Case.

He did not specifically refer to those authorities, but if one goes through the line of reasoning that he followed when he made his decision you can see that he did.  Then it simply went to the point and he said – and I refer to paragraph 16 of the Supreme Court judgment on page 29 of the application book:

the true issue upon which the case turned was simply whether, in the circumstances, the omission to provide a warning, in either form suggested, that the lifting platform was to be or was being lowered breached the duty of care –

and he went on certainly to refer to the Romeo Case, but then if your Honours look at paragraph 17 of the judgment, which is on page 30 of the application book, he said that:

“ultimately, the question of fact is what a reasonable person, in the position of the [respondent], would do by way of response to the risk”.

That is not something that has been distilled from the public authority cases of Romeo and Brodie.  That statement comes from the Wyong ‑ ‑ ‑

CALLINAN J:   Ms Mangan, in, I think it was Fox v Percy, this Court discussed, I think, the Supreme Court Act (NSW) in which the obligations of the Court of Appeal are specified and the obligation of the Court of Appeal is to undertake a general review. Is there a similar provision in Western Australia? Nobody troubles to look at the relevant Supreme Court Act to see what Courts of Appeal are supposed to do, but it is worth going back to them sometimes to see what the obligation of the Court of Appeal is.  You cannot assist us on that?

MS MANGAN:   All I know, your Honour, is generally the obligation of the Supreme Court of Western Australia is to hear an appeal by way of rehearing.

CALLINAN J:   These Acts do not distinguish between matters of law and matters of fact.  It is judge‑made law that says the extent to which, if any, courts may interfere with findings of fact, Courts of Appeal.  In any event, do not take time on it if you cannot assist us on it.

MS MANGAN:   I am sorry, your Honour, I cannot.  The Supreme Court found that the breach of duty of care was not established simply by observation, that it was obvious that the applicant could step backwards onto the platform.  Again, that sort of observation comes from the principles laid down in the Wyong Case and, again, Justice Murray said that the chance that the applicant would do this without looking where he was going was remote.  Again, that is pulling out from the principles set down for the court in the Wyong Case.

So the criticism by the applicant that the Full Court did not go through the correct judicial process is, I would submit, unfounded.  If I can refer to, I think, the crux of the decision which is in paragraph 29 on page 34, Justice Murray said:

In my opinion, the appellant was, acting reasonably, entitled to expect that the respondent would look where he was going rather than that he would step back, knowing that he was about to step off the back of the truck tray, without looking to see whether the hoist, which he knew was constantly on the move and which he knew he would not necessarily hear being lowered, was in fact in a position level with the tray of the truck.  Further, unless he looked or heard what was happening behind him and so positively satisfied himself that it was safe to step backwards, the respondent could not know whether there were cartons of books on the hoist or whether, as was the case when the accident happened, Fendick was there.  There was no substitute for the respondent looking where he was going and, in my view, it was not negligent for the respondent to rely upon him to do so.

That is the crux of the decision.  So I would submit that it is a situation which was envisaged in the authority of Da Costa, which my learned friend has provided to the Court.  In that case, Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43, some guidance in the employment context, not the ‑ ‑ ‑

McHUGH J:   Which case is this?

MS MANGAN:   It is the Da Costa Case, which is in the applicant’s book of authorities, page 12 of 25 I will refer to, and in that case this Court gave some guidance to the limits to what would be expected of a reasonable employer in response to dealing with a particular risk.  On page 12 of 25 of that decision, the copy that is in the booklet – I do not know if your Honours have that.

McHUGH J:   Yes, I have it.

MS MANGAN:   Yes. 

McHUGH J:   It is not the Commonwealth Law Reports copy.

MS MANGAN:   No.  I cannot take responsibility for that, your Honour.

McHUGH J:   No, I know, but practitioners ought to understand that the authorised reports should be cited in this Court.

MS MANGAN:   Yes, I appreciate that, your Honour.  If I could, though, simply refer to the decision of Justice Windeyer and at paragraph 9 he said:

The case, as presented, seems to me to be another instance of a tendency to say that simply because an accident happens to a man at work, which conceivably could have been by some means avoided, the system of work was unsafe and the injured man’s employer was responsible. 

McHUGH J:   This decision was given in 1970.  In Braistina this Court recognised that the standard of care required in employers had improved very significantly, or had increased very significantly.  But even if you go back to the same period as Rae v Broken Hill, which is referred to in paragraph 9, in the very same volume of the Commonwealth Law Reports, Justice Taylor, who is cited in Rae, said in Smith v Broken Hill:

This does not mean, of course, that where an injury has been caused to an employee by his own negligence he may seek to hold his employer liable but, rather, that the duty of the latter is not fully discharged unless, in the provision of safeguards, he has taken into account, not only that particular tasks necessarily involve particular risks, but also that inadvertence and inattention, short of positive negligence, are common concomitants of everyday work.  The latter factors may be of considerable cogency in cases where the work of an employee exposes him constantly to the risk of injury unless there is unremitting care on his part –

Now, why is that not directly applicable to this case?  It is a repetitious action and it just needs a moment of inadvertence, and why should employer ‑ ‑ ‑

MS MANGAN:   Your Honour, it does apply to this case, and I think all the respondent is simply saying is that Justice Murray and the Supreme Court, on whose behalf he gave that judgment, did consider that when he gave his judgment and it just became a point where there is no ‑ ‑ ‑

McHUGH J:   Where did he consider any question of inadvertence?  It does not seem to me that it is even remotely taken into account.

MS MANGAN:   Your Honour, I think before he got the specifically considering inadvertence and he said he considered that – it is simply a matter where we are not in a situation where there is strict liability on the part of an employer.  Justice Murray went back to the principle that all that is required of any person who is accused of a tort is to take reasonable care in the circumstances of the case and the circumstances of this case were just over the line as far as Justice Murray was concerned and did not require a reasonable employer to take the steps that the applicant said should have been taken for his protection.

He made that judgment and, with respect, your Honour, this is a judgment as to finding of fact which throughout the course of all of the precedents in such cases, due to the divisions in the courts when they are making these conclusions, they are a matter of judgment at the end of the day and his Honour Justice Murray made that judgment saying that, yes, certainly there is a risk.  There is a risk with everything you do.  There is a risk in this employment.  The risk has not been identified, but in the circumstances of this case, it would not be the response of a reasonable employer, even taking into account the high standard of care required of an employer, which is greater than, of course, the standard of care required of a public authority in charge of a public place, that even taking that into account, in this case the applicant did not get over the line in establishing that the circumstances were such that the employer should have taken the steps that the applicant said he should have taken.

I suppose the other context of this has always been hotly contested by the respondent, that the steps that the applicant said should have been taken were indeed anything more than illusory to protect the applicant and, in fact, if one considers the notice of appeal, which is in the application book and which is repeated in the reasons for decision of the Supreme Court, you can see that although a number of steps have been set out, they really would not have been any substitute, as his Honour said, for looking where you were going.

For example, if there is a warning that the platform is going up and down, there is no warning about whether there is an obstacle on the platform, whether the platform is fully up, whether the platform is fully down, so there is no real answer to remedying the risk that the applicant identified and which the Full Court and which the trial judge all accepted were real risks.  Of course there is a risk that someone is going to fall off the back of a truck or fall out of the back of the kombi van or whatever someone is packing or working in at the time, but there is simply no real way of protecting against that risk and in the ‑ ‑ ‑

McHUGH J:   That is not what the Full Court thought of it.  The Full Court said in paragraph 11:

There was no problem with the practicality of the measures suggested, by which the risk of injury could have been averted.  They were the process of warning by a beeper or other sound emitting device, or the giving of an oral warning when the lifting platform was to be lowered –

So the Full Court had no problem about preventability.  It just said you would not guard against such a risk.

MS MANGAN:   Yes, your Honour, and there is perhaps some contradiction there because later on the Full Court did say, in paragraph 29 at page 34 of the application book:

There was no substitute for the respondent looking where he was going –

and explained in that paragraph 29 the impracticability or, as I put it to the Full Court, the illusory nature of the suggested precautions that could have been taken.

So there is possibly some contradiction there, but at the end of the day, the key finding made by the Supreme Court was that there was no substitute, in the circumstances of this case, which are all set out in paragraph 29, for the applicant looking where he was going.  It is in that situation, in those circumstances, that the type of reasoning which I referred the Court to in Da Costa, which refers back to the other authorities, was followed and that simply because an accident happened in this workplace and that measures could have been taken, did not mean that the employer, when reasonableness is required of him, even considering that the standard of care required of that employer did not require him to take the steps that the applicant said should have been taken.

It is in those circumstances that it is submitted that the finding of fact that the Supreme Court made, it was a finding of fact that was open to them applying the principles required to be applied and in the circumstances submitted that leave should not be granted.

McHUGH J:   Yes, thank you.

MS MANGAN:   Thank you, your Honours.

McHUGH J:   We need not hear you in reply, Mr Nugawela.  There will be a grant of special leave in this case.

AT 11.22 AM THE MATTER WAS CONCLUDED