Dixon v Stirling Marine Services Pty Ltd

[1996] HCATrans 326

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P27 of 1996

B e t w e e n -

KENNETH RODNEY DIXON

Applicant

and

STIRLING MARINE SERVICES PTY LTD

Respondent

Application for special leave to appeal

DAWSON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON MONDAY, 4 NOVEMBER 1996, AT 2.54 PM

Copyright in the High Court of Australia

MR C.W. SANDERSON:   May it please the Court, I appear for the applicant in this matter.  (instructed by D’Angelo & Partners)

MR C.J.L. PULLIN, QC:   If it please the Court, I appear with my learned friend, MR R.L. HOOKER, for the respondent.  (instructed by P. Panegyres, Crown Solicitor for the State of Western Australia)

DAWSON J:   Yes, Mr Sanderson.

MR SANDERSON:   Your Honours, the fact situation in this matter is entirely straightforward and the findings of the Court of Appeal are also straightforward.  The finding of the Court of Appeal was to the effect that the need to pull an individual out of the harbour might arise, that it was a foreseeable circumstance, but that the provision of a safety ladder on board the line vessel on which the applicant was working was not a matter which was within the duty of care which arose as a consequence of the fact of employment.

Your Honours, the single point that the applicant makes is this, that this is a case where the applicant was acting within the scope of his employment, that from time to time it was a case that line vessels assisted in rescue operations, and the applicant says that, in those circumstances, there was a high duty of care on the respondent to provide suitable equipment.  Further, the applicant says that if it was foreseeable that individuals would need to be pulled out of the harbour and perhaps foreseeable that this would involve considerable effort on the part of someone in the applicant’s position, that the provision of a ladder was within the duty of care.

McHUGH J:   But they are only questions of fact, Mr Sanderson.

MR SANDERSON:   Yes, your Honour, and the only basis upon which the applicant says that this is a special leave point is the question of the extent of the duty of care in cases where a person acting in the course of their employment is called upon to rescue, it being the case that the employer anticipates the prospect of a rescue situation.

McHUGH J:   But the duty is a duty to take reasonable care in all the circumstances of the case.  The content of the duty, the standard of care required depends on the circumstances.  You cannot get any general principle out of the case.  There is no such thing as a high duty or low duty or medium duty.

MR SANDERSON:   Your Honours, the position the appellant urges upon the Court is that, this being a rescue case and the prospect of a rescue from the harbour being foreseeable, the Court ought to take the opportunity to establish a standard for cases of this sort.

McHUGH J:   What would that standard be?  How would we formulate the standard?  What would be the principle?

MR SANDERSON:   Your Honour, the point is that the prospect of pulling someone from the harbour was found by the Court of Appeal and the learned commissioner to be foreseeable.  Consequent upon that, the use of a ladder was also in prospect.

KIRBY J:   Well, you say that but you did not call any evidence that showed that that was something which these vessels were normally fitted with.

MR SANDERSON:   No, your Honour, we would concede that point.

KIRBY J:   This must be a common phenomenon or it must - if you say it is foreseeable it must be a common phenomenon that the vessels might have to face up to this possibility of rescue, and yet nowhere in the world could you find somebody who would come along and say that they all have ladders against that risk.  It is all facts.  There is no principle here.  There is no sub‑principle of the high duty which employers owe to employees.

MR SANDERSON:   Certainly if your Honours are against me on that point, that is the point that we seek to raise by this application.  Those are the applicant’s submissions, your Honours.

DAWSON J:   Thank you, Mr Sanderson.  The Court need not trouble you, Mr Pullin.

This case turns on its own facts and involves no point of principle warranting the grant of special leave to appeal.  Special leave is accordingly refused.

MR PULLIN:   We seek an order for costs against the applicant, may it please the Court.

DAWSON J:   Can you say anything about that, Mr Sanderson?

MR SANDERSON:   No, your Honour, we cannot resist that application.

DAWSON J:   It is refused with costs.

AT 3.00 PM THE MATTER WAS CONCLUDED