Dempsey v Harris Scarfe Ltd

[1969] HCA 43

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan and Windeyer JJ.

DEMPSEY v. HARRIS SCARFE LTD.

(1969) 122 CLR 521

25 September 1969

Practice

Practice—High Court—Appeal from State Supreme Court—Competency—Appeal as of right—Judgment "in respect of any . . . matter at issue amounting to or of the value of" $3,000—Claim for damages dismissed—Judiciary Act 1903-1960 (Cth), s. 35 (1) (a) (2).

Decision

September 25.
The judgment of THE COURT was delivered by BARWICK C.J. : -
This is an appeal brought as of right from a judgment of a judge of the Supreme Court of South Australia sitting alone in the trial of an action brought under the Wrongs Act, 1936-1959, of that State. (at p522)

2. With the notice of appeal there was filed in this Court an affidavit made by a member of the firm of solicitors appearing for the appellant, in purported compliance with O. 70, r. 7 (3) of the Rules of this Court. That rule provides as follows :

"If the appeal is brought without leave or special leave, then, within the time limited for filing the notice of appeal, an affidavit shall be filed in the appropriate Registry stating facts which show that an appeal lies without leave or special leave, and a copy of the affidavit shall be served upon the parties upon whom the notice of appeal is served." (at p522)

3. That affidavit recounted the nature and the course of the action in the Supreme Court, and contained the following paragraph :

"6. I am of opinion that an appeal to the High Court lies as of right from the said judgment entered in the Supreme Court of South Australia as aforesaid pursuant to the provisions of s. 35 (1) (a) (2) of the Judiciary Act 1903-1960 in that it is a final judgment involving directly or indirectly a claim respecting a civil right amounting to or of the value of $3,000." (at p523)

4. No objection to the competency of the appeal was made by the respondent. Order 70, r. 8 (1), provides as follows :

"If a respondent objects to the competency of an appeal, he shall, within fourteen days after service upon him of the notice of appeal, file in the Registry a notice of objection stating briefly the grounds of his objection, and serve upon the appellant a copy of the notice." (at p523)

5. The affidavit to which we have referred was obviously intended to serve the purpose of r. 7 (3). But it was obviously inadequate to do so. It did not state any facts showing that the appeal lay as of right. At an early stage of the argument of the appeal, the Court raised with counsel for the appellant the question whether the appellant had an appeal as of right, pointing out that the case had to be shown by evidence in this Court, and to its satisfaction, to come within s. 35 (1) (a) of the Judiciary Act 1903 (Cth). (at p523)

6. It was also pointed out that in such a case as the present the judgment sought to be reversed clearly did not fall within s. 35 (1) (a) (i) of that Act. It could not properly be said by an unsuccessful plaintiff that the judgment against him had been given or pronounced for or in respect of any sum or matter at issue. There had not been a sum or matter at issue in the action within the meaning of s. 35 (1) (a) (i), nor was there in the action any claim to or respecting any property within the meaning of s. 35 (1) (a) (2). It follows that if there were a right of appeal at all, the judgment under appeal must be brought within s. 35 (1) (a) (2) and particularly within so much of it as speaks of a judgment which involves directly or indirectly a claim, demand, or question, to or respecting a civil right of the value of $3,000. The affidavit from which we have quoted appears to have been based on that view. (at p523)

7. The appellant in truth had no evidence before this Court to which she could point in an endeavour to show the necessary facts on which a judgment could be formed as to whether or not an appeal lay as of right. But counsel was allowed to refer to the evidence given in the Supreme Court and to be found in the transcript record with the appeal book in the case. By referring to the earnings of the deceased, to the earnings during the deceased's lifetime by the appellant, to the outgoing of the earnings of the family establishment, to the ages of the appellant and of the deceased and of their children all appearing in that transcript, counsel proffered to the Court a calculation which, after setting off the amount admittedly available to the appellant under the Workmen's Compensation Act, 1932-1965 (S.A.), he claimed to be in excess of $3,000. (at p524)

8. Facts such as the exigencies of life, the possibility of remarriage, the financial benefits accruing to the appellant from the death of the deceased, were said to be allowed for in the computation. (at p524)

9. The unsatisfactory nature of the situation of this Court sitting as a Court of Appeal to hear an appeal, attempting upon material such as is here available to place a value upon the civil right in respect of which the appellant claims is so obvious as to not require any emphasis. The question as to the competency of an appeal ought to be determined as the Rules of the Court contemplated it should, at a time anterior to the hearing of the appeal and upon admissible material presented in such a form that clear conclusions of fact can be drawn. In cases such as the present, we think the better course would be for an objection to competency to be set down before a single justice, when the matter would be heard and decided as a matter of fact without delay, wherever the Court may then happen to be sitting. (at p524)

10. In this case, we have considered the material and the arguments put forward by Mr. King, who made a considerable endeavour to convince us of the value of the civil right in question here ; but we are not satisfied, bearing in mind the complexities that surround a claim under the Wrongs Act, 1936-1959 (S.A.), in such circumstances as the present, and after making allowance for the amount admittedly payable under the Workmen's Compensation Act that the value of that right was, or probably was, $3,000. It may be that it was, but of that fact we are not convinced by the material and argument presented to us. Unless we are so satisfied, the appeal is incompetent, and for that reason must be dismissed. (at p524)

11. Order 70, r. 8 (2) is in the following terms :

"If notice of objection has not been so given but nevertheless the appeal is afterwards dismissed by the Court as incompetent, the respondent shall not, unless upon special grounds the Court otherwise orders, receive any costs of the appeal, and the Court may order that he pay to the appellant any costs of the appeal proving useless or unnecessary." (at p524)

12. As we have said, there was no objection made by the respondent to the competency of the appeal. Possibly it could be said that some costs of the appeal have in consequence been unnecessarily incurred, with the possible result that the respondent should be ordered to pay the amount of such costs to the appellant. However, bearing in mind that both parties are at fault so far as the Rules of the Court are concerned, we think that justice will be done in this case by making no order as to costs. (at p525)

13. However, we have heard full argument for the appellant on the merits of the appeal. Mr. King has given us the considerable advantage of a clear and thorough discussion of the evidence given at the trial and of the findings and the judgment of the learned trial judge. As well, he has given us the benefit of the citation of a number of relevant authorities. In those circumstances we feel able immediately to express our view as to the merits of the appeal and, although dismissing it as incompetent, we think in the circumstances we should do so. (at p525)

14. The relevant principles by which responsibility upon the ground of negligence can be fastened by common law upon an employer for an accident causing harm to an employee are well settled. It is not suggested that the trial judge misapprehended them in finding that the employer in this case was not in breach of them. Mr. King's substantial point in support of the appeal is that the trial judge's decision was wrong in point of fact because she failed to give adequate weight and emphasis to the employer's obligation in the circumstances to take reasonable precautions to avoid unnecessary risks to the safety of the workmen, risks which the employer ought reasonably to have foreseen. The relevant risk put forward by Mr. King was the risk that a workman for one reason or another might lose his balance whilst on the table top of the lorry and grasp hold of one end of the bundle of iron sheets suspended in the grab and thus cause it to slip out of its horizontal position. (at p525)

15. We have carefully considered the judgment of the trial judge and we are unable to conclude that she did not have in mind the obligation of the employer to take reasonable care to avoid exposing workmen to unnecessary risks. Indeed, the various alleged breaches with which she dealt in the judgment were all instances of alleged breaches of this obligation. (at p525)

16. Whether the case was presented to her in the same particular way as it has been presented to us by Mr. King is not at all clear ; but in any event, having regard to the facts found by her, her conclusion, in our opinion, covers the suggestion Mr. King makes. She found that the load was stable before it was grasped by the deceased. She found that the deceased did not turn the load, which was his duty and part of the system of handling the iron sheets on to the table top of the lorry. By being turned, the load would move away from the deceased. On the contrary, he placed himself in the path of the load, allowing it to bear upon his body, leading ultimately to his loss of balance. His pressure on the load caused it to go out of the horizontal position. (at p526)

17. There was no evidence that loading iron sheets in the manner adopted in this case inherently involved a risk of overbalancing by a workman which would cause him to press on the load of iron sheets to an extent which would disturb the balance so as to cause it to slip out of the grab. (at p526)

18. There was no evidence, in our opinion, upon which it ought to be held that the employer, as a reasonably prudent employer, ought to have foreseen the possibility of such an occurrence. Nor, in our opinion, could it be said that a reasonably prudent employer ought to have foreseen the possibility of a workman losing his balance for some reason and grasping hold of the iron sheets as a means of assisting him to restore that balance. It could be properly said, in our opinion, that there was no proof of a clear and evident risk of that course of events occurring which called upon the employer to take action to protect the workman against it. Further, there was not, in our opinion, any evidence of any precaution which it could be held ought reasonably to have been taken and which, being taken, would have avoided the result in this case. This is clearly not a case in which the trial judge could herself from her own knowledge supply that defect in the evidence. (at p526)

19. In the circumstances, we can well understand the trial judge concluding that the defendant employer was not relevantly in breach of his duty of care in regard to the deceased and we would be unable to accept the appellant's submission that the judgment for the defendant in this connexion was wrong. It may be of some satisfaction to the appellant that although her appeal is incompetent, it would not in any case have succeeded. (at p526)

Orders

Appeal dismissed as incompetent. No order as to costs.