Davis v Qld University of Technology

[1998] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B70 of 1997

B e t w e e n -

MARIE LENORE DAVIS

Applicant

and

QUEENSLAND UNIVERSITY OF TECHNOLOGY

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 2.26 PM

Copyright in the High Court of Australia

MR D.B. FRASER, QC:   May it please the Court, in this matter I appear with my learned friend, MR R.W. TROTTER, for the applicant.  (instructed by Watling Roche)

MR P.A. KEANE, QC:   If the Court please, I appear for the respondent.  (instructed by McCullough Robertson)

McHUGH J:   Yes, Mr Fraser.

MR FRASER:  May I first take your Honours to the point of principle in the appeal, and that can be found in the test posed in the Court of Appeal which was then applied, it seems, to overturn the conclusion of the trial judge, that the respondent had not established contributory negligence on the part of the applicant.

That appears at page 30 of the application book.  In taking your Honours to this aspect I am not rehearsing at all the various facts and circumstances set out in our application, but essentially the issue was whether the applicant was guilty of fault within the legislation in making an assumption that a fellow worker would carry mail boxes in a particular direction when, as the events transpired, he did not, and she was injured.

KIRBY J:   She saw him coming, though, did she not?

MR FRASER:   She saw him initially when she came out of her office doing her job and made an assumption that he would go in the direction that he would usually go; continued doing her work - that was dragging a post bag to a particular position, and as she did so she took her eyes off the fellow worker and was bumped into when he changed direction, or at least did not go in the expected direction, and knocked her over.

So, the position is that ultimately in the Court of Appeal the reason or the test which was applied was as follows.  This is from the reasons of Mr Justice Thomas at line 5 on page 30:

In my view it is impossible to characterise the plaintiff’s conduct and contribution leading to this incident as “mere inadvertence inattention or misjudgment”, or as conduct which a reasonable person would not foresee as something that would expose herself to risk of injury.

It is that test that we take issue with, and it is for this reason:  if the applicant’s employment exposed her to a risk of injury she is not simply guilty of fault for running that risk of injury, more is required.  It can really be exemplified by what was said in Commissioner of Railways v Halley, and the relevant passage is set out in the decision of the Full Court of Victoria in TAL v Vaughan Constructions (1989) VR 545, and the relevant passage is at 553. It really comes from a judgment of Justice Jacobs in Commissioner for Railways v Halley at about line 35 on page 553:

a finding that the respondent [plaintiff] knew or ought to have known that what he was doing was highly dangerous does not necessarily establish that he was guilty of a lack of reasonable care for his own safety in the circumstances of his employment.  It would also need to be established by the appellant [defendant employer] that the respondent knew or ought to have known that what he did, even though it was highly dangerous, was not required of him in the performance of his duties.

McHUGH J:   Yes, but that passage has really nothing to do with this case.  When I was at the junior Bar we used to construct system cases against employers by systematising the plaintiff’s own negligence and making it turn into a system, and you would then argue, well, of course the plaintiff might have been aware of the danger but this was the system that was operated and therefore there should be no finding of contributory negligence and a verdict against the defendant.  But, this is a very different case to that.  It is not a system‑type case.  This is a case where, on what the Court of Appeal found, was that she saw a fairly obvious potential risk and turned her back on it.  You may agree or disagree with that characterisation of it, then you might disagree with it, but does the case involve anything more than a question of fact and degree?

MR FRASER:   Your Honour, it does for this reason:  if the test that is posed is continued to be applied it will involve an application of wrong principle for this reason: it is not simply so much that the conduct is a conduct which a reasonable person would not foresee as something that would expose herself to risk of injury, rather it is the question of whether or not, as was said in the case, if an employee is required by the nature of his employment to expose himself to some dangers but not to others, the employee is not shown to be guilty of contributory negligence simply by exposing himself to a situation which he knew, or ought to have known, was dangerous.

McHUGH J:   But you are attempting to turn a negative proposition into a positive proposition.  All that the judge said in the passage at page 39 is that you cannot say this is conduct “which a reasonable person would not foresee”.  If he had come to that conclusion, no doubt he would have said that there was no contributory negligence, but it does not follow from that passage that the judge is saying that merely because you can foresee a risk of injury it automatically follows that she is guilty of contributory negligence.  What he went on to say was she saw a fairly obvious potential risk and turned her back on it.

MR FRASER:  Your Honour, if that focuses simply on the result in the case as opposed to the question of principle, it would be difficult to controvert what your Honour is saying.  The problem is that in the result in the case it is put on the basis of her duty to act in her own interest, but that pays no regard at all for the circumstances that she is working in an environment completely under the control of her employer.  By that I mean this:  the evidence and the finding of the trial judge was that this was a practice, the practice which the employee, Brooks, engaged in, is a practice which the employer had tolerated in the workplace.  She made an assumption which the trial judge described as a reasonable one that in carrying the particular articles he would go in a particular direction.  If that assumption was reasonable, then ultimately it involves saying that an employee who makes a reasonable assumption that if she acts in a particular way she may do so in safety, is negligent.

McHUGH J:   Yes, I know, but it is only a question of evaluating her conduct.  There is no question requiring the grant of special leave is there?

KIRBY J:   This is the problem I have.  I have exactly Justice McHugh’s problem, with respect to Justice Thomas, who is a very experienced judge.  I, subject to hearing the respondent, I would never have found this to be contributory negligence, but it is a well‑established principle, and it is a principle that is applied.  What could we say except you have to be very careful that you do not make into contributory negligence something that is mere inadvertent conduct on the part of an employee.  If we say that, we have said it before.  What is the point of saying it again?

MR FRASER: Your Honours, perhaps it can be addressed in this way: if one analyses the basis upon which a finding of contributory negligence can be made against an employee, or any plaintiff for that matter, it is because at common law the employee’s conduct would have amounted to a defence to the action brought, based upon the defence of contributory negligence. Our legislation prescribes that the word “fault” means something a little different to perhaps what most people anticipate that it does mean. We have provided your Honours with copies of the relevant section. It is in the last authority listed, section 5 of the Law Reform Act 1995. The way it is defined results in this, in our submission:

“fault” means negligence, breach of statutory duty, or other act or omission which gives rise to a liability in tort -

That is clearly apposite to the situation where it is the fault of the defendant that we are concerned with.  Then it goes on:

or would, apart from this part, give rise to the defence of contributory negligence.

Our submission is that in order to give effect to that statutory proscription it must necessarily follow that the conduct which must be assessed in all the circumstances of the case be such as to give rise to the defence of contributory negligence. 

McHUGH J:   That simply means that the plaintiff must, or should have foreseen a risk of harm to him or herself which, by the exercise of reasonable care, she could have avoided.  If anything, the section tends to be against your argument against the common law case.

KIRBY J:   I thought the section is designed, is it not, to incorporate the common law.

McHUGH J:   Exactly.

KIRBY J:   It says, “gives rise to the defence of contributory negligence”, i.e. of common law.

MR FRASER:   Yes, your Honour, we accept that entirely, but we submit that implicit in that defence are the matters which are enunciated in one of the decisions we have provided your Honours with, the previous authority, Tuff v Warman.

KIRBY J:   But where does the Court of Appeal say otherwise?

MR FRASER:   Your Honour, because they say this:  they say in the passage that I have referred your Honours to, that in order to assess whether ‑ ‑ ‑

KIRBY J:   What page is this?

MR FRASER:   This is page 30, your Honour, it is a passage I have already read to your Honours.  You assess whether the:

conduct and contribution leading to this incident as “mere inadvertence inattention or misjudgment”, or as conduct which a reasonable person would not foresee as something that would expose herself to risk of injury.

McHUGH J:   They are not saying that at all, with great respect.  His Honour is knocking down two ways out for the plaintiff.  He says, first of all this is not a case that can be described as “mere inadvertence inattention or misjudgment”, and secondly, he says it is not conduct which no reasonable person could foresee.  If you had made good either of those propositions, no contributory negligence.  The trial judge does not go on to say if you did not foresee that you were exposing yourself to a risk of injury, that is contributory negligence.  If he did you would be on solid ground.

MR FRASER:   I am sorry, I just did not follow your Honour’s last observation because ‑ ‑ ‑

McHUGH J:   I said, if the judge had gone on to say, “Conduct which a reasonable person would foresee as something that would expose yourself to risk of injury is contributory negligence”, then you would be right; you would be on solid ground.  That is not what the judge is saying.  He is dealing with two negatives.  He is saying you cannot say this is just mere inadvertence or misjudgment, so she does not get off on that ground.  Nor can you say that it is conduct which a reasonable person could not foresee as exposing herself; so she does not get off on that ground.  Then he goes on to say, “She saw a fairly obvious potential risk and turned her back to it”.  Finally he says at line 30:

It is inescapable that the plaintiff failed to take reasonable care for her own safety and that this contributed to the occurrence of the incident.

Now, many may disagree with his assessment.  Justice Kirby has expressed the view that he would, but where is the error in principle?

MR FRASER:   I suppose I am trying to submit that if the statement of the approach in the passage I have read to your Honours is a correct exposition of it, then it is simply on that analysis a misapplication of the principle - or it may be, in this particular case, rather than being a statement which is ‑ ‑ ‑

KIRBY J:   You have to say, basically, that the thrust of decisions of this Court, including the Braistina Case which built on what Justice McHugh said and the whole tendency towards employers’ liability is such that mere inadvertence of the kind of turning around and not seeing another employee coming is not contributory negligence within that.....  But, it is just a particular case.  I mean, we just cannot take on every case.

CALLINAN J:   For my part, I find the proposition an affront to commonsense.  The woman turned her back; she was in a perfectly good position to see what risk there might be; she chose to ignore it.  I am reading from page 30:

Obvious and natural steps to ensure her own safety included calling out, staying where she was, or keeping him under observation -

As Mr Justice Thomas went on to say, these are matters, essentially, of common sense and of natural instinct”.  The workplace just does not belong to the employer.  It is populated by the employees, also.

MR FRASER:   It may be certainly accepted that on the view that she has a duty to simply look after herself, unaffected by the considerations of the workplace, that would be certainly an unobjectionable exposition of it.  The difficulty we have here is the reason that she makes the assumption is because she is in the workplace and the reasons she is injured is because she continues with her task rather than doing something else about it.

CALLINAN J:   She has a positive duty to take care for her own safety.  She chose not to fulfil that duty.

MR FRASER:   Your Honour has expressed a view which shows that at least in this room, different views may be taken about ‑ ‑ ‑

KIRBY J:   Is that not the problem you have?  You see, I have exactly the opposite view than Justice Callinan has taken, but Justice Thomas happens to have taken the view that Justice Callinan has taken, or one close to it, and the principle is clear, and it is inevitable in our nation, all over this country, that there are going to be judges and juries which take different views on these things.

MR FRASER:   I suppose our complaint is that the trial judge, having made a finding that it was a reasonable assumption, and Justice Thomas saying that is certainly an important consideration, and the fact that he never returns to it in his reasons makes us wonder that surely something has gone wrong as a matter of principle in the application of the principle, and we had thought that it was because it was put in the negative sense rather than saying, “Has the defendant discharged the onus of showing that a reasonable person would have done something different to avoid the risk of injury in those circumstances?”, rather than putting it in the negative sense in which it is done in the statement of principle.  I cannot make the proposition any more than I have sought to make it today.

McHUGH J:   Thank you, Mr Fraser.  We do not want to hear from you, Mr Keane.

Special leave must be refused in this matter.  The case involves no more than a question of fact and degree.  It involves the question whether the applicant was guilty of contributory negligence and, if so, whether the finding of 30 per cent responsibility for the damage that she suffered was too high.  They are not questions which required the grant of special leave.  The application for special leave must be refused.

MR KEANE:   We ask for costs, if it please the Court.

MR FRASER:   I cannot say anything to that, your Honour.

McHUGH J:   The application is refused with costs.

AT 2.45 PM THE MATTER WAS CONCLUDED