Deron v BHP Co Ltd

[1999] HCATrans 49

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S46 of 1998

B e t w e e n -

WILLIAM JOHN DERON

Applicant

and

THE BROKEN HILL PROPRIETARY COMPANY LIMITED

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MARCH 1999, AT 2.58 PM

Copyright in the High Court of Australia

MR J.R. YOUNG:   May it please your Honours, I appear for the applicant.  (instructed by Newman & Associates)

MR R.R. STITT, QC:   May it please your Honours, I appear with my learned friend, MS N.E. ABADEE, for the respondent.  (instructed by J.W. Lenord, Solicitor)

GAUDRON J:   Yes, Mr Young.

MR YOUNG:   Your Honours, the matters before his Honour the trial judge arose by virtue of a defence under section 63(3)(a) of the Workers’ Compensation Act.  That provision is now repealed but it is set out in his Honour the trial judge’s judgment and reproduced at pages 33 and 34 of the application book.

The relevant issue to be determined by his Honour the trial judge as far as this appeal is concerned was the finding that the applicant had knowledge that he had received a workers compensation payment.

GAUDRON J:   Now, that is a question of fact.

MR YOUNG:   Indeed, your Honour, and that is what this appeal is all about, the way - - -

KIRBY J:   A question of fact, a very unpromising start.

MR YOUNG:   The way in which the Court of Appeal differed from his Honour’s findings in that regard, in our submission, the Court of Appeal ignored undisputed primary facts found by his Honour and that therefore the reasoning of the Court of Appeal was deficient in that regard.

His Honour the trial judge found, and these are reproduced at pages 56 to 58, some special – bearing in mind that this was a question of knowledge of the applicant, there were some special features of the case which militated against a finding that the applicant had knowledge.  Those matters are set out there at 56 to 58 at (a) to (e).  What they are, are factors which relate to the applicant’s mental capacity even before the accident and his suffering brain damage in sequelae in the accident.  But they were not the only factors that the trial judge found.

GAUDRON J:   But the question was his knowledge on the day.

MR YOUNG:   Precisely, your Honour, and what the Court of Appeal overlooked was a very essential matter in relation to his knowledge on the day because it is this:  at the bottom of page 58 your Honours will see that there was this matter which went to the circumstances of the day.  And his Honour the trial judge said:

A further point to be appreciated is that the amount included for compensation was about the same as the amount mistakenly omitted for wages.  Accordingly, the amount of cash in the pay envelope would have been almost exactly what the plaintiff would have expected to receive if he had been paid the wages to which he was entitled and not paid compensation. 

Now, his Honour had already dealt with this at page 44.  What had happened was that the amount of the compensation payment, about $26, was almost exactly the same as an amount of wages erroneously excluded from the pay packet of about $25.  So, when he got that amount in his hands, it would have been almost exactly - - -

GAUDRON J:   Now, certainly, if you were looking at that in isolation there would be a lot to be said for it, your argument, but the point made in the Court of Appeal was that you had to look at all the facts and they included what was said by the applicant some little time later, not only to his solicitor but, I think, to his doctor or to the employer’s doctor.

MR YOUNG:   It was to a medical officer of BHP on the day on which he received the payment, and to a solicitor some two months later.  But what the Court of Appeal was overlooking was, in my submission – the Court of Appeal did not deal with this evidence at all.  The Court of Appeal dealt with the issues that had been, they said, considered by his Honour.  This is at the bottom of page 80, over on to 81.  Your Honours will see there that the court refers to the fact that his Honour the trial judge took into account the fact that the respondent was of below average intelligence, and matters relating to his health immediately following the accident, and he noted that the respondent had no memory of the events surrounding the accident.

GAUDRON J:   And at page 81 reference is made, although not in great detail, to the pay slip. 

MR YOUNG:   But not to this crucial evidence that - - -

GAUDRON J:   Well, you say it is crucial.  The point is it is hardly likely that having made reference to the pay slip, that the court was in ignorance of the matter which you now raise.

MR YOUNG:   Well, there were two quite distinct issues in relation to the pay slip.  One was that on the pay slip it had the letters “Comp” on it so that if the applicant looked at the pay slip he would see, if he understood it, that there was a reference there to the $26 being “Comp” which could be inferred was compensation.  But a quite discrete matter in relation to that which does not arise from the pay slip but from other evidence was that, looking at the pay slip, one would not see that the amount of wages for the day on which he was injured had been erroneously omitted; that that sum of $25 had not been included in his pay slip.  So, where one is dealing with a person of below average intelligence, who had been described by his supervisor on the day of the accident, as “a simple soul” who suffered brain damage, headaches, dizziness, as a sequelae of the accident, in our submission for the Court of Appeal to depart from the factual conclusion, the inference drawn from his Honour from all the primary facts, it was - - -

GAUDRON J:   Now, that was the issue in this.  That was the critical thing in this case, was it not?  The knowledge was a matter to be inferred?

MR YOUNG:   From primary facts.

GAUDRON J:   From primary facts which were not seriously in dispute.

MR YOUNG:   Well, there had been a dispute in relation to certain matters but his Honour made findings.  We submit that one of the essential findings that his Honour made related to the maker of that pay and how it would have affected a person with the knowledge, with the disabilities of the applicant at that time.  That was a matter which had to be put into the balance.  The Court of Appeal said at page 83 that:

It is not the circumstances considered individually and separately that are important; it is the combination of circumstances.

GAUDRON J:   Well, is that not right?

MR YOUNG:   We adopt that completely, with respect, your Honour.

KIRBY J:   So, there is no error in their approach?

MR YOUNG:   There is no error in the approach as far as that is concerned, no.

KIRBY J:   That is the second bell that tolls against you.  It is a matter of fact and there is no error in the approach of the Court of Appeal.

MR YOUNG:   Your Honour, it is our submission that an appellate court is not at liberty to depart from the conclusion of a judge in relation to primary facts and - - -

GAUDRON J:   But he did not.  There was not any departure from the primary facts.  The departure was as to the inference to be drawn from them.

MR YOUNG:   With respect, no, your Honour.  The Court of Appeal did not consider the whole of his Honour’s findings as to primary facts.  That, in our submission, vitiates the conclusion that they made.  If there are four essential primary facts as found by a trial judge, if the Court of Appeal considers each of those primary facts and comes to a different conclusion, there can be no challenge to that.  That was not the situation here.  The Court of Appeal said, on the day in question, there were two areas of very important matters going to the knowledge of this applicant.  One was his mental powers and his mental state brought about by a combination of inherent below-average intelligence and also his injuries.

The other matter related to this unfortunate coincidence whereby he could not have been expected to know from the amount of money that he was getting that there was any - - -

GAUDRON J:   And if it stood there, undoubtedly, you would be right.  But as against that is the fact of his statements.  They have to be regarded ‑ ‑ ‑

KIRBY J:   And the contemporaneous note of his solicitor.

GAUDRON J:   Yes.They have to be regarded as either complete confabulation or as indicating a state of knowledge.

MR YOUNG:   If the Court of Appeal had been aware or had taken into account the matter that, in my submission, was important, they may well have considered the evidence of Mr Brown, the former solicitor, to be much less important.  His Honour had observed Mr Brown – and I do not submit that this is a matter where credibility as such was in issue but it was a question of what significance does one give to these notes.  Mr Brown accepted that the word “compensation” had probably not come from the applicant; that the applicant had probably not said that he had been paid compensation.

Now, he alsosaid, in a letter which he sent in November 1970, that his use of the expression “we understand that he was paid compensation” reflected a degree of uncertainty or doubt as to what the position was.  It reflected a degree of uncertainty or doubt on his part.  Now, had the Court of Appeal taken into account the evidence in relation to what was likely to be the knowledge of the applicant on 3 July, then the combination of circumstances may well have been quite different.  One is into the area of trying to assess what the proper assessment of those combination of circumstances was.  With all due respect to the Court of Appeal, what happened after 3 July is only important in how it reflects back on to that day in question.  One is finding in these later notes something which the Court of Appeal, without putting it in these terms, is something in the nature of an admission.

But if one goes to the day in question and looks at the inherent probabilities of that day, as his Honour did and the Court of Appeal did not ‑ ‑ ‑

GAUDRON J:   But we cannot.  You cannot do that in isolation.  If it were another case, you might be able to but in this case we know what was said subsequently.

MR YOUNG:   We know what Mr Brown’s notes say.  We know that a medical officer for BHP wrote the words “further compensation” but, with the greatest of respect to the Court of Appeal, his Honour’s explanation for that, that the words “further compensation” were far more likely to be the medical officer’s interpretation of what the applicant said rather than this person who had been described as “a simple soul” - - -

KIRBY J:   But looking at it from the point of view of this Court, the matter is clearly a matter of fact.  The dispute is about the inferences that were available.  There is no new legal principle.  The legal principles are well established.  The Court recently visited the role of appellate courts in SRA v Earthline.  So far as the injustice that you are claiming to engage our attention is concerned, it is simply a matter of disputation about the facts.

MR YOUNG:   No, your Honour.  There is, in my submission, an important legal principle that is involved here and that is that it has certainly always been the situation that the courts have recognised that an appellate court is entitled to draw a different inference or a different conclusion from the primary facts.  The matter of public importance that we submit is that the essential primary facts must be stated and considered before the appellate court embarks on a different conclusion.  Otherwise, in our submission, the appellate function miscarries.  In this case, it is likely that the Court of Appeal simply overlooked that evidence but it is our submission that it is not open to an appellate court either to overlook evidence of this kind or to ignore it. 

These were matters that, in his Honour’s view, were matters of great significance.  They were matters which his Honour stated was a further point to be appreciated and that it went directly to the knowledge of the plaintiff.  Now, in my submission, cases such as Warren v Coombes and Zuvela must have, as their foundation, that the appellate court properly and correctly states the primary findings of fact by the trial judge.  If that foundation disappears, if the Court of Appeal, the appellate court, overlooks or does not take into consideration a matter which is a primary fact, then it is our submission that the appellate function miscarries.

It may be quite another thing if the Court of Appeal says, “Having considered it, we don’t regard it as being of much weight, or of any weight” in relation to some other evidence that his Honour found - - -

KIRBY J:   So, the real complaint is about the reasons of the Court of Appeal?

MR YOUNG:   About the reasons of the Court of Appeal and we say that the basis on which they came to a different inference or conclusion simply there was not that basis; there was not that foundation.

KIRBY J:   It seems rather unlikely that the Court of Appeal would not have had in mind all of the matters that are referred to by Justice Sperling.  They refer to his Honour’s reasons; the case was argued by senior counsel before them and the decision was delivered within a fortnight.

MR YOUNG:   If your Honour looks at – there is, in my submission, an explanation for that and that is that the matters are listed, relating to the plaintiff’s mental capacity, (a) to (e), and (e) seems to be twice appearing, but it then appears that it finishes in the transcript, if one looks at page 58, it then appears that if one reads the paragraph after (e), it appears that his Honour has finished dealing with the matters that he regarded as being crucial going to knowledge.  What he had done was finished with the matters relating to capacity and injury that went to knowledge and that he then went on to deal with this further comment which relates to the circumstances of the payment on the day and did not go to the – came under a quite different heading.  So that it was, in our submission, simply a matter that was overlooked in error by the Court of Appeal but was a matter which ‑ ‑ ‑

KIRBY J:   Different appellate judges might have approached the matter in a different way, but the Court of Appeal approached it in the way it did.  It does not seem to be – there is no new legal principle here and therefore you are down to the question of miscarriage of justice and so far as that is concerned, it is simply an argument about the facts.

MR YOUNG:   Your Honour, the legal principle in relation to the setting out of the primary facts on which a judgment is based has never been established by the Court, the degree or the extent to which the appellate

court must have regard to the primary facts of the trial judge and which ones are capable of being omitted.

KIRBY J:   Do you think we really have to tell courts of appeal that they have to have regard to the primary facts found by the judge?  I mean, it is just so rudimentary.  If you can demonstrate that they misunderstood them or misstated them or mistook them in some way, well that is a different matter.

MR YOUNG:   It is my submission, your Honour, that the court quite clearly stated what were the matters that it regarded as having been found by his Honour the trial judge and it completely omitted this one and it was a matter that his Honour the trial judge found to be of very great significance in relation to the circumstances that took place on the day.  So, yes, we say that certainly there are matters of miscarriage of justice because the applicant was imputed with a state of actual knowledge that he never had, but we also submit that there is a matter of legal principle that requires the statement of this Court, of course.  Some judgments are much shorter than others.

GAUDRON J:   Yes, we need not trouble you, Mr Stitt.

Given that the applicant’s knowledge was a matter to be inferred from the facts found by the trial judge, no error of principle is to be discerned in the approach taken by the Court of Appeal.  That being so, the matter is not one which should attract the grant of special leave.  The application is refused.

GAUDRON J:   Mr Stitt, you do not seek costs?  No.  Thank you.

KIRBY J:   I do not think Mr Stitt ever overlooks anything.

GAUDRON J:   The Court will now adjourn.

AT 3.20 PM THE MATTER WAS CONCLUDED